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New York’s New Climate Superfund Law Signed
On December 26, 2024, New York Governor Hochul signed the Climate Change Superfund Act (CCSA) into law to attempt to impose the cost to repair climate change impacts on the fossil fuel industry. The CCSA amends the New York State Environmental Conservation Law to establish a climate change adaptation cost recovery program overseen by the New York State Department of Environmental Conservation (NYSDEC).
Predicated on the “polluter pays” principle, the new law authorizes New York State to issue cost recovery demands to “responsible parties” defined as entities that “engaged in the trade or business of extracting fossil fuel or refining crude oil” during any part of the period from January 1, 2000 to December 31, 2018 (the covered period), and that NYSDEC determines is responsible for more than one billion tons of covered greenhouse gas (GHG) emissions.
The CCSA applies a formulaic approach to determining the amount of GHGs attributable to a responsible party:
- 5 tons of CO2 equivalent is treated as released for every million pounds of coal attributable to a responsible party
- 432,280 metric tons of CO2 equivalent is treated as released for every million barrels of crude oil attributable to a responsible party; and
- 53,440 metric tons of CO2 equivalent is treated as released for every million cubic feet of fuel gas attributable to a responsible party.
NYSDEC has until the end of 2025 to promulgate regulations implementing the CCSA. The legislation requires NYSDEC to create a climate change adaptation master plan for New York state by the end of 2026. CCSA is expected to face significant legal challenges on issues such as the scope of the legislation’s reach, its retroactive application, federal preemption arguments, and due process concerns.
