By Alicyn Craig, Louis C. Formisano and Matthew L. Capone
On Friday, February 28, 2025, New York Governor Kathy Hochul signed into law Senate Bill 824 amending New York’s Climate Change Superfund Act (Act) just two months after the Act had itself been signed into law in December 2024. As previously reported in a Duane Morris Alert, the Act, which seeks to hold major fossil fuel companies financially accountable for alleged contributions to climate change, has been met with a lawsuit filed by a coalition of state attorneys general and industry groups asserting various causes of action under both federal and New York state law. The amendment to the Act has prompted a new lawsuit filed by the U.S. Chamber of Commerce, the Business Council of New York State, the American Petroleum Institute, and the National Mining Association (U.S. Chamber Coalition) in the Southern District of New York which asserts, among other things, that the U.S. Constitution precludes the Act and that the Act is preempted by the Clean Air Act.
The Amendment
Among the pertinent changes to the Act are a litany of additions which seek both to facilitate the New York Department of Environmental Conservation’s (NYSDEC) administration of its duties under the Act and to seemingly assuage some of the concerns raised by detractors to the Act.
Among the primary additions to the Act is an increase to the lookback period under which NYSDEC may consider the emissions of a potentially responsible party under the Act. Previously the Act had authorized an eighteen-year lookback window (extending from 2000 to 2018). The Act will now consider emissions from 2000 to 2024 – adding six years of potential liability to emitters. The amendment also clarifies that “covered greenhouse gas emissions” include “those emissions attributable to all fossil fuel extraction and refining worldwide by such entity and are not limited to such emissions within the state.”
To facilitate NYSDEC’s investigation into potentially responsible parties, the Act also requires such entities to provide information to NYSDEC related to their “past practices, production, extraction, refining, emissions, or other historical information” as may be needed by NYSDEC to “determine the amount of greenhouse gas emissions attributable to an entity”. NYSDEC will make publicly available data and information received from potentially responsible parties.
Additionally, Changes to NYSDEC’s administration of the Act include an increase in the amount of time afforded to NYSDEC to promulgate regulations necessary to perform under the Act and to publish its resilience plan – a statewide climate change adaptation plan guiding the disbursement of funds anticipated to be collected from allegedly responsible parties.
Lastly, the amended Act now provides for a procedure by which a potentially responsible party may file a request for reconsideration of its cost recovery demand with the NYSDEC.
The U.S. Chamber Coalition’s Lawsuit
The lawsuit filed on February 28th by the U.S. Chamber Coalition mirrors the claims filed by those state attorneys general and industry groups appearing in the February 6, 2025, litigation. Namely, the new suit argues that New York exceeded the bounds of its authority through the Act by exposing responsible parties to significant and unduly burdensome penalties for greenhouse gas emissions – some of which may have occurred beyond state lines. Moreover, the U.S. Chamber Coalition asserts that the Act is preempted by the federal Clean Air Act.
Additionally, the U.S. Chamber Coalition argues that there is no meaningful way to trace greenhouse gas emissions back to a particular generator, nor is there a discernible way of measuring damages for those specific emissions.
Duane Morris, LLP will continue to follow the developments on this lawsuit and will issue subsequent Alerts and blog posts on the New York Climate Change Superfund Act.
