Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H872 Compare Versions

Only one version of the bill is available at this time.

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2	2	HOUSE DOCKET, NO. 3460 FILED ON: 1/20/2023
3	3	HOUSE . . . . . . . . . . . . . . . No. 872
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Steven Owens
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act establishing a climate change superfund and promoting polluter responsibility.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :DATE ADDED:Steven Owens29th Middlesex1/18/2023Lindsay N. Sabadosa1st Hampshire1/27/2023David Henry Argosky LeBoeuf17th Worcester1/27/2023Samantha Montaño15th Suffolk2/2/2023Mike Connolly26th Middlesex2/2/2023Jack Patrick Lewis7th Middlesex2/6/2023Jason M. LewisFifth Middlesex2/7/2023David M. Rogers24th Middlesex2/7/2023David Allen Robertson19th Middlesex2/8/2023James C. Arena-DeRosa8th Middlesex2/8/2023Frank A. Moran17th Essex2/8/2023Margaret R. Scarsdale1st Middlesex2/9/2023Carmine Lawrence Gentile13th Middlesex2/9/2023James B. EldridgeMiddlesex and Worcester2/10/2023Natalie M. Higgins4th Worcester2/23/2023Simon Cataldo14th Middlesex3/3/2023 1 of 14
16	16	HOUSE DOCKET, NO. 3460 FILED ON: 1/20/2023
17	17	HOUSE . . . . . . . . . . . . . . . No. 872
18	18	By Representative Owens of Watertown, a petition (accompanied by bill, House, No. 872) of
19	19	Steven Owens and others relative to establishing a climate change superfund and promoting
20	20	polluter responsibility. Environment and Natural Resources.
21	21	The Commonwealth of Massachusetts
22	22	_______________
23	23	In the One Hundred and Ninety-Third General Court
24	24	(2023-2024)
25	25	_______________
26	26	An Act establishing a climate change superfund and promoting polluter responsibility.
27	27	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
28	28	of the same, as follows:
29	29	1 SECTION 1. The General Laws are hereby amended by inserting after Chapter 21O the
30	30	2following chapter:
31	31	3 CHAPTER 21P
32	32	4 CLIMATE CHANGE ADAPTATION COST RECOVERY ACT
33	33	5 Section 1. Definitions.
34	34	6 For purposes of this chapter, the following terms shall have the following meanings
35	35	7unless the context clearly requires otherwise:
36	36	8 "Applicable payment date", July first of the calendar year following the year in which this
37	37	9chapter is enacted into law. 2 of 14
38	38	10 "Climate change adaptive infrastructure project", an infrastructure project designed to
39	39	11avoid, moderate, repair or adapt to negative impacts of climate change or to assist communities,
40	40	12households and businesses in preparing for future climate change-driven disruptions. Such
41	41	13projects include but are not limited to restoring coastal wetlands and developing other nature-
42	42	14based solutions and coastal protections; upgrading storm water drainage systems; making
43	43	15defensive upgrades to roads, bridges, subways, and transit systems; preparing for and recovering
44	44	16from hurricanes and other extreme weather events; undertaking preventive health care programs
45	45	17and providing medical care to treat illness or injury caused by the effects of climate change;
46	46	18relocating, elevating, or retrofitting sewage treatment plants vulnerable to flooding; installing
47	47	19energy efficient cooling systems and other weatherization and energy efficiency upgrades and
48	48	20retrofits in public and private buildings, including schools and public housing; upgrading parts of
49	49	21the electrical grid to increase stability and resilience, including supporting the creation of self-
50	50	22sufficient clean energy microgrids; addressing urban heat island effects through green spaces,
51	51	23urban forestry, and other interventions; and responding to toxic algae blooms, loss of agricultural
52	52	24topsoil, and other climate-driven ecosystem threats to forests, farms fisheries, and food systems.
53	53	25 “Commissioner”, commissioner of the department of environmental protection.
54	54	26 "Controlled group", two or more entities treated as a single employer under section 52(a)
55	55	27or (b) or section 414(m) or (o) of the internal revenue code. Subsections (a) and (b) of section 52,
56	56	28section 1563 of the internal revenue code shall be applied without regard to subsection(b)(2)(c).
57	57	29For purposes of this article, entities in a controlled group are treated as a single entity for
58	58	30purposes of meeting the definition of responsible party and are jointly and severally liable for
59	59	31payment of any cost recovery demand owed by any entity in the controlled group. 3 of 14
60	60	32 "Cost recovery demand", a charge asserted against a responsible party for cost recovery
61	61	33payments under the program for payment to the fund.
62	62	34 "Covered greenhouse gas emissions", with respect to any entity, the total quantity of
63	63	35greenhouse gasses released into the atmosphere during the covered period, expressed in metric
64	64	36tons of carbon dioxide equivalent, resulting from the use of fossil fuels or petroleum products
65	65	37extracted, produced, refined, or sold by such entity.
66	66	38 "Covered period", the period that began January first, two thousand and ended on
67	67	39December thirty-first, two thousand eighteen.
68	68	40 "Crude oil", oil or petroleum of any kind and in any form, including bitumen, oil sands,
69	69	41heavy oil, conventional and unconventional oil, shale oil, natural gas liquids, condensates, and
70	70	42related fossil fuels.
71	71	43 “Department”, department of environmental protection.
72	72	44 "Entity", any individual, trustee, agent, partnership, association, corporation, company,
73	73	45municipality, political subdivision, or other legal organization, including a foreign nation, that
74	74	46holds or held an ownership interest in a fossil fuel business during the covered period.
75	75	47 "Environmental justice population'', a neighborhood that meets 1 or more of the
76	76	48following criteria: (i) the annual median household income is not more than 65 per cent of the
77	77	49statewide annual median household income; (ii) minorities comprise 40 per cent or more of the
78	78	50population; (iii) 25 per cent or more of households lack English language proficiency; or (iv)
79	79	51minorities comprise 25 per cent or more of the population and the annual median household
80	80	52income of the municipality in which the neighborhood is located does not exceed 150 per cent of 4 of 14
81	81	53the statewide annual median household income; provided, however, that for a neighborhood that
82	82	54does not meet said criteria, but a geographic portion of that neighborhood meets at least 1
83	83	55criterion, the secretary may designate that geographic portion as an environmental justice
84	84	56population upon the petition of at least 10 residents of the geographic portion of that
85	85	57neighborhood meeting any such criteria; provided further, that the secretary may determine that a
86	86	58neighborhood, including any geographic portion thereof, shall not be designated an
87	87	59environmental justice population upon finding that: (A) the annual median household income of
88	88	60that neighborhood is greater than 125 per cent of the statewide median household income; (B) a
89	89	61majority of persons age 25 and older in that neighborhood have a college education; (C) the
90	90	62neighborhood does not bear an unfair burden of environmental pollution; and (D) the
91	91	63neighborhood has more than limited access to natural resources, including open spaces and water
92	92	64resources, playgrounds and other constructed outdoor recreational facilities and venues.
93	93	65 "Fossil fuel", coal, petroleum products and fuel gasses.
94	94	66 "Fossil fuel business", a business engaging in the extraction of fossil fuels or the refining
95	95	67of petroleum products.
96	96	68 "Fuel gasses", shall include but not be limited to methane, natural gas, liquefied natural
97	97	69gas, and manufactured fuel gasses.
98	98	70 "Fund", the climate change adaptation superfund.
99	99	71 "Greenhouse gas", any chemical or physical substance that is emitted into the air and that
100	100	72the department may reasonably anticipate will cause or contribute to climate change including,
101	101	73but not limited to, carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons
102	102	74and sulfur hexafluoride. 5 of 14
103	103	75 “Nature-based solutions”, projects that utilize or mimic nature or natural processes and
104	104	76functions and that may also offer environmental, economic, and social benefits, while increasing
105	105	77resilience. Nature-based solutions include both green and natural infrastructure.
106	106	78 "Notice of cost recovery demand", the written communication informing a responsible
107	107	79party of the amount of the cost recovery demand payable to the fund.
108	108	80 "Petroleum products", a product that is obtained from distilling and processing crude oil
109	109	81and that is capable of being used as a fuel for the propulsion of a motor vehicle, boat or aircraft.
110	110	82The term does not include naphtha-type jet fuel, kerosene-type jet fuel, a petroleum product
111	111	83destined for use in chemical manufacturing or feedstock of that manufacturing or fuel oil used
112	112	84for heating purposes.
113	113	85 "Program", the climate change adaptation cost recovery program.
114	114	86 "Qualifying expenditure", an authorized payment from the fund in support of a climate
115	115	87change adaptive infrastructure project, including its operation and maintenance, as defined by the
116	116	88department.
117	117	89 "Responsible party", any entity or a successor in interest to such entity described herein,
118	118	90which, during any part of the covered period, was engaged in the trade or business of extracting
119	119	91fossil fuel or refining crude oil and is determined by the department to be responsible for more
120	120	92than one billion tons of covered greenhouse gas emissions. The term responsible party shall not
121	121	93include any person who lacks sufficient connection with the state to satisfy the nexus
122	122	94requirements of the United States Constitution.
123	123	95 SECTION 2. The Climate Change Adaptation Cost Recovery Program. 6 of 14
124	124	96 (a) There is hereby established a climate change adaptation cost recovery program
125	125	97administered by the department.
126	126	98 (b) The purposes of the program shall be the following
127	127	99 (1) To secure compensatory payments from responsible parties based on a standard of
128	128	100strict liability to provide a source of revenue for climate change adaptive infrastructure projects
129	129	101within the state;
130	130	102 (2) To determine proportional liability of responsible parties;
131	131	103 (3) To impose cost recovery demands on responsible parties and issue notices of cost
132	132	104recovery demands;
133	133	105 (4) To accept and collect payment from responsible parties;
134	134	106 (5) To identify climate change adaptive infrastructure projects;
135	135	107 (6) To disperse funds to climate change adaptive infrastructure projects; and
136	136	108 (7) To allocate funds in such a way as to achieve a goal that at least forty percent of the
137	137	109qualified expenditures from the program, but not less than thirty-five percent of such
138	138	110expenditures shall go to climate change adaptive infrastructure projects that directly benefit
139	139	111environmental justice populations
140	140	112 (c)(1) A responsible party shall be strictly liable, without regard to fault, for a share of the
141	141	113costs of climate change adaptive infrastructure projects, including their operation and
142	142	114maintenance, supported by the fund. 7 of 14
143	143	115 (d) With respect to each responsible party, the cost recovery demand shall be equal to an
144	144	116amount that bears the same ratio to seventy-five billion dollars as the responsible party's
145	145	117applicable share of covered greenhouse gas emissions bears to the aggregate applicable shares of
146	146	118covered greenhouse gas emissions of all responsible parties.
147	147	119 (e) The applicable share of covered greenhouse gas emissions taken into account under
148	148	120this section for any responsible party shall be the amount by which the covered greenhouse gas
149	149	121emissions attributable to such responsible party exceeds one billion metric tons.
150	150	122 (f) Where an entity owns a minority interest in another entity of ten percent or more, the
151	151	123calculation of the entity's applicable share of greenhouse gas emissions taken into account under
152	152	124this section shall include the applicable share of greenhouse gas emissions taken into account
153	153	125under this section by the entity in which the responsible party holds a minority interest,
154	154	126multiplied by the percentage of the minority interest held.
155	155	127 (g) In determining the amount of greenhouse gas emissions attributable to any entity, an
156	156	128amount equivalent to nine hundred forty-two and one-half metric tons of carbon dioxide
157	157	129equivalent shall be treated as released for every million pounds of coal attributable to such entity;
158	158	130an amount equivalent to four hundred thirty-two thousand one hundred eighty metric tons of
159	159	131carbon dioxide equivalent shall be treated as released for every million barrels of crude oil
160	160	132attributable to such entity; and an amount equivalent to fifty-three thousand four hundred forty
161	161	133metric tons of carbon dioxide equivalent shall be treated as released for every million cubic feet
162	162	134of fuel gasses attributable to such entity.
163	163	135 (h) The commissioner may adjust the cost recovery demand amount of a responsible
164	164	136party refining petroleum products, or its successor, if such responsible party establishes to the 8 of 14
165	165	137satisfaction of the commissioner that a portion of the cost recovery demand amount was
166	166	138attributable to the refining of crude oil extracted by another responsible party, or its successor
167	167	139that accounted for such crude oil in determining its cost recovery demand amount.
168	168	140 (i) Payment of a cost recovery demand shall be made in full on the applicable payment
169	169	141date unless a responsible party elects to pay in installments pursuant to paragraph j of this
170	170	142subdivision.
171	171	143 (j) A responsible party may elect to pay the cost recovery demand amount in twenty-four
172	172	144annual installments, ten percent of the total due in the first installment and the balance to be paid
173	173	145in equal installments over the remaining years. If an election is made under this paragraph, the
174	174	146first installment shall be paid on the applicable payment date and each subsequent installment
175	175	147shall be paid on the same date as the applicable payment date in each succeeding year.
176	176	148 (k) If there is any addition to the original amount of the cost recovery demand for failure
177	177	149to timely pay any installment required under this subdivision, a liquidation or sale of
178	178	150substantially all the assets of the responsible party, including in a proceeding under u.s. code:
179	179	151title 11 or similar case, a cessation of business by the responsible party, or any similar
180	180	152circumstance, then the unpaid balance of all remaining installments shall be due on the date of
181	181	153such event, or in the case of a proceeding under u.s. code: title 11 or similar case, on the day
182	182	154before the petition is filed.The preceding sentence shall not apply to the sale of substantially all
183	183	155of the assets of a responsible party to a buyer if such buyer enters into an agreement with the
184	184	156department under which such buyer is liable for the remaining installments due under this
185	185	157subdivision in the same manner as if such buyer were the responsible party. 9 of 14
186	186	158 (l) Within one year of the effective date of this article, the department shall promulgate
187	187	159such regulations as are necessary to carry out this article, including but not limited to:
188	188	160 (i) Adopting methodologies using the best available science to determine responsible
189	189	161parties and their applicable share of covered greenhouse gas emissions consistent with the
190	190	162provisions of this article;
191	191	163 (ii) Registering entities that are responsible parties under the program;
192	192	164 (iii) Issuing notices of cost recovery demand to responsible parties informing them of the
193	193	165cost recovery demand amount; how and where cost recovery demands can be paid; the potential
194	194	166consequences of nonpayment and late payment; and information regarding their rights to contest
195	195	167an assessment;
196	196	168 (iv) Accepting payments from, pursuing collection efforts against, and negotiating
197	197	169settlements with responsible parties; and
198	198	170 (v) Adopting procedures for identifying and selecting climate change adaptive
199	199	171infrastructure projects eligible to receive qualifying expenditures, including legislative budget
200	200	172appropriations, issuance of requests for proposals from localities and not-for-profit and
201	201	173community organizations, grants to private individuals, or other methods as determined by the
202	202	174department, and for dispersing moneys from the fund for qualifying expenditures. When
203	203	175considering projects intended to stabilize tidal shorelines, the department shall encourage using
204	204	176nature-based solutions. Total qualifying expenditures shall be allocated in such a way as to
205	205	177ensure at least forty percent of the qualified expenditures from the program shall go to climate
206	206	178change adaptive infrastructure projects that benefit environmental justice populations. 10 of 14
207	207	179 (m). Within two years of the effective date of this article, the department shall complete a
208	208	180statewide climate change adaptation master plan for the purpose of guiding the dispersal of funds
209	209	181in a timely, efficient, and equitable manner to all regions of the state in accordance with the
210	210	182provisions of this chapter. In completing such plan, the department shall:
211	211	183 (i) Collaborate with the secretary of state, department of housing and community
212	212	184development, the department of agriculture, the department of energy resources, and the
213	213	185department of public utilities.
214	214	186 (ii) Assess the adaptation needs and vulnerabilities of various areas vital to the state’s
215	215	187economy, normal functioning, and the health and well-being of residents, including but not
216	216	188limited to: agriculture, biodiversity, ecosystem services, education, finance, healthcare,
217	217	189manufacturing, housing and real estate, retail, tourism (including state and municipal parks),
218	218	190transportation, and municipal and local government.
219	219	191 (iii) Identify major potential, proposed, and ongoing climate change adaptive
220	220	192infrastructure projects throughout the state;
221	221	193 (iv) Identify opportunities for alignment with existing federal, state, and local funding
222	222	194streams;
223	223	195 (v) Consult with stakeholders, including local governments, businesses, environmental
224	224	196advocates, relevant subject area experts, and representatives of disadvantaged communities;
225	225	197 (vi) Provide opportunities for public engagement in all regions of the state.
226	226	198 11 of 14
227	227	199 (n) The department and the attorney general are hereby authorized to enforce the
228	228	200provisions of this article.
229	229	201 (o) The department shall provide an opportunity to be heard to any responsible parties
230	230	202that seek to contest a cost recovery demand.determinations made in favor of a petitioner after
231	231	203such hearing shall be final and conclusive.
232	232	204 (p) Moneys received from cost recovery demands shall be deposited in the climate
233	233	205change adaptation super fund
234	234	206 (q) Projects funded pursuant to this article shall require compliance with prevailing wage
235	235	207requirements pursuant to section two hundred twenty of the labor law.
236	236	208 (r) Any state entity or municipality receiving at least twenty-five million dollars
237	237	209($25,000,000) from funds allocated pursuant to this article for a project costing greater than fifty
238	238	210million dollars ($50,000,000) shall require use of apprenticeship agreements as defined by article
239	239	211twenty-three of the labor law, with pre-apprenticeship direct entry providers registered with the
240	240	212department of labor.
241	241	213 (s). Any state entity or municipality receiving at least twenty-five million dollars
242	242	214($25,000,000) from funds allocated pursuant to this article for a project which involves the
243	243	215construction, reconstruction, alteration, maintenance, moving, demolition, excavation,
244	244	216development or other improvement of any building, structure or land, shall be subject to the
245	245	217prevailing wage law
246	246	218 (t).(1) Any municipality or state entity, or a third party acting on behalf and for the
247	247	219benefit of the municipality or state entity, in each contract for construction, reconstruction, 12 of 14
248	248	220alteration, repair, improvement or maintenance of a project receiving funds under this article that
249	249	221is a public work, shall ensure that such contract contains a provision that the structural iron and
250	250	222structural steel used or supplied in the performance of the contract or any subcontract thereto and
251	251	223that is permanently incorporated into the public work, shall be produced or made in whole or
252	252	224substantial part in the United States, its territories or possessions. In the case of a structural iron
253	253	225or structural steel product, all manufacturing must take place in the United States, from the initial
254	254	226melting stage through the application of coatings, except metallurgical processes involving the
255	255	227refinement of steel additives. For the purposes of this subdivision, "permanently incorporated"
256	256	228shall mean an iron or steel product that is required to remain in place at the end of the project
257	257	229contract, in a fixed location, affixed to the public work to which it was incorporated. Iron and
258	258	230steel products that are capable of being moved from one location to another are not permanently
259	259	231incorporated into a public work.
260	260	232 (2) The provisions of paragraph (a) of this subdivision shall not apply if the head of the
261	261	233department, agency, or municipal entity constructing the public work, in his or her sole
262	262	234discretion, determines that the provisions would not be in the public interest, would result in
263	263	235unreasonable costs, or that obtaining such steel or iron in the United States would increase the
264	264	236cost of the contract by an unreasonable amount, or such iron or steel, including without
265	265	237limitation structural iron and structural steel, cannot be produced or made in the United States in
266	266	238sufficient and reasonably available quantities and of satisfactory quality.
267	267	239 (u)(1) The department shall conduct an independent evaluation of the climate change
268	268	240adaptation cost recovery program. the purpose of this evaluation is to determine the effectiveness
269	269	241of the program in achieving its purposes 13 of 14
270	270	242 (2) Such evaluation shall be provided to the governor, the temporary president of the
271	271	243senate and the speaker of the assembly on or before January first of the second calendar year
272	272	244following the year in which this article is enacted into law, and annually on or before September
273	273	245thirtieth thereafter.
274	274	246
275	275	247 SECTION 3. Climate Change Adaptation Fund.
276	276	248 (a) There is hereby established within the Department of Environmental Protection a
277	277	249special revolving fund to be known as the "climate change adaptation fund" for the purpose of
278	278	250receiving moneys through cost recovery demands and issuing funds for qualifying expenditures
279	279	251pursuant to the climate change adaptation cost recovery program
280	280	252 (b) No monies shall be expended from the fund for any project except qualifying
281	281	253expenditures pursuant to the program, including their operation and maintenance, as well as
282	282	254reasonable costs incurred by the department of environmental conservation for administering the
283	283	255program.
284	284	256 SECTION 4. Applicability of Chapter
285	285	257 (a)Nothing in this act shall be deemed to preclude the pursuit of a civil action or other
286	286	258remedy by any person. The remedies provided in this act are in addition to those provided by
287	287	259existing statutory or common law.
288	288	260 (b)If any word, phrase, clause, sentence, paragraph, section, or part of this act shall be
289	289	261adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect,
290	290	262impair, or invalidate the remainder thereof, but shall be confined in its operation to the word, 14 of 14
291	291	263phrase, clause, sentence, paragraph, section, or part thereof directly involved in the controversy
292	292	264in which such judgment shall have been rendered.