Revision: Jan. 15, 2025, 4:02 p.m.
HB 601-FN - AS INTRODUCED
2025 SESSION
25-0840
07/11
HOUSE BILL 601-FN
SPONSORS: Rep. Read, Rock. 10; Rep. W. Thomas, Hills. 12; Rep. Caplan, Merr. 8
COMMITTEE: Judiciary
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ANALYSIS
This bill:
I. Creates a private cause of action against companies that misstate the impacts of their business on the environment.
II. Creates criminal penalties for companies that misstate the impacts of their business on the environment.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
25-0840
07/11
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty Five
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Paragraphs; Trade and Commerce; Regulation of Business Practices for Consumer Protection; Definitions. Amend RSA 358-A:1 by inserting after paragraph V the following new paragraphs:
VI. "Environmental marketing claim" means a representation about an environmental attribute, including climate impact, of a product or service in connection with the marketing, offering for sale, or sale of such product or service to the public. For purposes of this paragraph, the term "environmental marketing claim" includes labeling, advertising, promotional materials, and any form of appeal to the public in any medium, whether asserted directly or by implication, through words, symbols, logos, depictions, product brand names, or other means.
VII. "Net zero claim" means a representation that an entity has achieved, will achieve, or aims to achieve an overall balance between greenhouse gas emissions produced and greenhouse gas emissions removed from the atmosphere.
VIII. "Paltering" means the use of a truthful statement relating to an industry, business, product, or service that creates an overall false, deceptive, or misleading impression or implication to the public that a specific benefit is significant, when it is, in fact, negligible as to such industry, business, product, or service.
IX. "Reputational advertising" means a representation to the public designed to create a perception of an industry, business, or brand by highlighting positive environmental qualities of or action taken by such industry, business, or brand, regardless of whether such representation is made in connection with the sale of a good or service.
2 New Paragraphs; Trade and Commerce; Regulation of Business Practices for Consumer Protection; Acts Unlawful. Amend RSA 358-A:2 by inserting after paragraph XIX the following new paragraphs:
XX. Making an untruthful, deceptive, or misleading environmental marketing claim, including, but not limited to:
(a) Engaging in paltering that misleads or deceives consumers as to the overall environmental impact of an industry, business, product, or service.
(b) Engaging in reputational advertising that misleads or deceives consumers as to the overall environmental impact of an industry, business, product, or service.
XXI. Making an untruthful, deceptive, or misleading net zero claim, including, but not limited to, a claim that:
(a) Does not clearly identify the covered portion of an entity's emission portfolio and value chain, including all greenhouse gas emissions, all emission scopes, and all joint ventures, subsidiaries, and specific product categories;
(b) Does not distinguish between a business's emission reductions, post-emission compensation, both offsets and removals, and emission divestments, or otherwise relies on vast amounts of offsets; or
(c) Is not substantiated by a company plan or action.
3 Trade and Commerce; Regulation of Business Practices for Consumer Protection; Exempt Transactions; Limitation on Exemptions. Amend RSA 358-A:3, I to read as follows:
I. Trade or commerce that is subject to the jurisdiction of the bank commissioner, the director of securities regulation, the insurance commissioner, the public utilities commission, the financial institutions and insurance regulators of other states, or federal banking or securities regulators who possess the authority to regulate unfair or deceptive trade practices. This paragraph includes trade or commerce under the jurisdiction of, and regulated by, the bank commissioner pursuant to RSA 361-A, relative to retail installment sales of motor vehicles. The exemptions provided in this paragraph shall not extend to untruthful, deceptive, or misleading environmental marketing claims as defined in RSA 358-A:1.
4 New Paragraph; Trade and Commerce; Regulation of Business Practices for Consumer Protection; Private Action. Amend RSA 358-A:10 by inserting after paragraph II the following new paragraph:
III. If an action is brought under this section alleging an untruthful, deceptive, or misleading environmental marketing claim, it shall not be required that the person who brought such action suffered any ascertainable loss as a result of the use or employment of such unlawfully deceptive act or practice.
5 Trade and Commerce; Regulation of Business Practices for Consumer Protection; Interpretation and Construction of Act. Amend RSA 358-A:13 to read as follows:
358-A:13 Interpretation and Construction of Act.
It is the intent of the legislature that in any action or prosecution under this chapter, the courts may be guided by the interpretation and construction given Section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. 45(a)(1)), by the Federal Trade Commission and the federal courts. The interpretational guidelines of this paragraph shall not extend to untruthful, deceptive, or misleading environmental marketing claims as defined in RSA 358-A:1.
6 New Chapter; Right of Action for Harms Connected to Climate Change. Amend RSA by inserting after chapter 546-C the following new chapter:
CHAPTER 546-D
RIGHT OF ACTION FOR HARMS CONNECTED TO CLIMATE CHANGE
546-D:1 Definitions.
I. "Amount in controversy" means the damages claimed or relief demanded by the injured party or parties in a lawsuit.
II. "Extreme event attribution science" means research aimed at understanding how human-induced changes in the global climate system affect the probability, severity, and other characteristics of extreme weather events such as hurricanes and heat waves. Often, this is done by determining the likelihood of the particular event happening today compared to how it might have unfolded without human-caused increase in concentration of greenhouse gasses in the atmosphere.
III. "Climate disaster" means an event that meets any of the following threshold qualifications and is determined by impact attribution science or extreme event attribution science to be substantially worsened (at least statistically significant) or caused by climate change from responsible parties’ products or extreme weather attributable to climate change from responsible parties’ products:
(a) A "major disaster", meaning either:
(1) Any natural catastrophe (including any hurricane, tornado, storm, high water, wind-driven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, or drought), or, regardless of cause, any fire, flood, or explosion, in any part of the United States, which in the determination of the President causes damage of sufficient severity and magnitude to warrant major disaster assistance by the Federal Emergency Management Authority to supplement the efforts and available resources of states, local governments, and disaster relief organizations in alleviating the damage, loss, hardship, or suffering caused thereby; or
(2) As defined by the Stafford Act, any natural catastrophe (including any hurricane, tornado, storm, high water, wind-driven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, or drought) or, regardless of cause, any fire, flood or explosion, in any part of the United States, which in the determination of the president causes damage of sufficient severity and magnitude to warrant major disaster assistance under this chapter to supplement the efforts and available resources of local, state governments and disaster relief organizations in alleviating the damage, loss, hardship or suffering caused thereby.
(b) A "catastrophic incident", meaning any natural or man-made incident that results in extraordinary levels of mass casualties, damage, or disruption severely affecting the population, infrastructure, environment, economy, national morale, and/or government functions. A catastrophic event could result in sustained national impacts over a prolonged period of time; almost immediately exceed resources normally available to local, state, tribal, and private sector authorities in the impacted area; or significantly interrupts governmental operations and emergency services to such an extent that national security could be threatened.
(c) Any event that qualifies, would have qualified, or will qualify, for inclusion on the National Centers for Environmental Information’s “Billion-Dollar Weather and Climate Disasters” program and data list.
(d) A gubernatorial state of emergency disaster declaration as defined in RSA 4:45.
IV. "Covered period" means the period from 1965 to the effective date of this chapter.
V. "Extreme weather attributable to climate change" means weather, climate, or environmental conditions, such as temperature, precipitation, drought, or flooding, that rank above a threshold value near the upper or lower ends of the range of historical measurements for a particular place and time of year, with unusual characteristics in terms of magnitude, location, timing, or extent. These events include those that "extreme event attribution science" determines would not have been possible without the influence of climate change.
VII. "Generally accepted amortization and depreciation timelines" means methods utilized and encouraged by the Internal Revenue Service and the Financial Accounting Standards Board.
VIII. "Gross negligence" means negligence which is materially greater than the mere absence of reasonable care under the circumstances, and which is characterized by indifference to or reckless disregard of the rights of others.
IX. "Harmed parties" means any person, business, or association harmed or suffering damages in the amount of at least $10,000 as a result of a climate disaster or extreme weather attributable to climate change.
X. "Impact attribution science" means research aimed at understanding how global climate change affects human and natural systems, including localized physical impacts, such as floods, droughts, and sea level rise, and the corresponding effects on infrastructure, public health, ecosystems, agriculture, and economies.
XI. "Market-share liability" means liability that is imposed severally on each member of an industry, based on each member’s share of the market or respective percentage of the qualified product placed on the market.
XII. "Qualified product" means a fossil fuel product including, but not limited to:
(a) Crude petroleum oil and all other hydrocarbons, regardless of gravity, that are produced at the wellhead in liquid form by ordinary production methods.
(b) Natural, manufactured, mixed, and byproduct hydrocarbon gas.
(c) Refined crude oil, crude tops, topped crude, processed crude, processed crude petroleum, residue from crude petroleum, cracking stock, uncracked fuel oil, fuel oil, treated crude oil, residuum, gas oil, casinghead gasoline, natural-gas gasoline, kerosene, benzine, wash oil, waste oil, blended gasoline, lubricating oil, and blends or mixtures of oil with one or more liquid products or byproducts derived from oil or gas.
XIII. “Responsible party” means a firm, corporation, company, partnership, society, joint stock company or any other entity or association that emitted or caused to be emitted through the extracting, storing, transporting, refining, importing, exporting, producing, manufacturing, distributing, compounding, marketing, or offering for wholesale or retail sale, a qualified product with total greenhouse gas emissions of at least one billion metric tons of carbon dioxide equivalent during the covered period. It shall not include any public utility, public authority, or the state or its political subdivisions.
XIV. “Statute of limitation” means the time frame set by a legislature where affected parties need to take action to enforce rights or seek redress after injury or damage, which, for the purpose and context of this chapter, is 3 years from the date that the harm commenced.
XV. “Strict liability” means liability that does not depend on actual negligence or intent to harm, but that is based on the breach of an absolute duty to make something safe.
546-D:2 Civil Action Enforcement.
I. Notwithstanding any other provision of law to the contrary, the requirements of this chapter shall be enforced exclusively through the civil actions described in this chapter.
II. Any person, other than an officer or employee of a state or local governmental entity in New Hampshire, may bring a civil action against any responsible party when the following conditions are met:
(a) The person qualifies as a harmed party.
(b) During any part of the covered period, the responsible party did business in New Hampshire, was registered to do business in New Hampshire, was appointed an agent of the state, or otherwise had sufficient contacts with New Hampshire to give the state jurisdiction over the responsible party pursuant to New Hampshire law.
(c) The statute of limitations for the action has not expired.
III. No enforcement of this chapter may be taken or threatened by this state, a political subdivision, a district or county or city attorney, or an executive or administrative officer or employee of this state or a political subdivision.
IV. Responsible parties are jointly and severally liable to plaintiff(s) for strict liability if they are a harmed party.
V. Harmed parties shall be entitled to bring an action against responsible parties for recovery of damages in:
(a) The county in which all or a substantial part of the events giving rise to the action occurred;
(b) The county of residence for any one of the natural person defendants at the time the cause of action accrued;
(c) The county of the principal office in this state of any one of the defendants that is not a natural person; or
(d) The county of residence for any plaintiff if the plaintiff is a natural person residing in this state.
VI. Notwithstanding any other provision of law to the contrary, if a civil action is brought under this chapter in one of the venues described above, the action shall not be transferred to a different venue, including federal court, without the written consent of all parties.
VII. The fact that harmed parties bring legal action against responsible parties under this chapter shall not be an independent basis for enforcement of any other law of this state, or the denial, revocation, suspension, or withholding of any right or privilege conferred by the law of this state or a political subdivision, or a threat to do the same, by this state, a political subdivision, a district or county or city attorney, or an executive or administrative officer or employee of this state or a political subdivision, or a board, commission, or similar body assigned authority to do so under law, against any person. No civil action predicated upon a violation of this chapter be brought by this state, a political subdivision, a district or county or city attorney, or an executive or administrative officer or employee of this state or a political subdivision.
VIII. Nothing in this chapter shall be construed to do any of the following:
(a) Limit the enforceability of any other laws that regulate or prohibit any conduct relating to climate disasters, extreme weather, greenhouse gas emissions, or consumer protection.
(b) Replace legally mandated disaster recovery funds, designated disaster recovery funds established via legislation or administrative rule, or contractually obligated or court-ordered insurance claim payouts.
IX. If a claimant prevails in an action brought under this section, the court shall award all of the following:
(a) The full extent of non-economic, compensatory, and punitive damages allowable under this state’s laws and constitution.
(b) Compensatory damages in an amount of not less than the fair market value of recovering, recouping, rebuilding, or remediating the value of lost, damaged, and destroyed property.
(c) Compensatory damages in an amount not less than the cost of injuries to harmed parties including medical care, mental and behavioral health care, past and present pain and suffering, or emotional distress.
X. Notwithstanding any other provision of law to the contrary, a cause of action under this section shall be extinguished unless the action is brought not later than 3 years after the cause of action accrues.
XI. The connection of a climate disaster or extreme weather attributable to climate change to alleged injuries shall be deemed an injury in fact for all residents of, and visitors to, this state, harmed by such an event. Any such person shall have standing to bring a civil action pursuant to this chapter.
XII. Notwithstanding any other provision of law to the contrary, none of the following is a defense to an action brought under this chapter:
(a) A defendant’s ignorance or mistake of law.
(b) A defendant’s belief that the requirements of this act are unconstitutional or were unconstitutional.
(c) A defendant’s reliance on any court decision that has been overruled on appeal or by a subsequent court, even if that court decision had not been overruled when the defendant engaged in conduct that violates this chapter.
(d) A defendant’s reliance on any state or federal court decision that is not binding on the court in which the action has been brought.
(e) Nonmutual issue preclusion or nonmutual claim preclusion.
(f) Any claim that the enforcement of this chapter or the imposition of civil liability against the defendant will violate a constitutional right of a third party.
(g) A defendant’s assertion that this chapter proscribes conduct that is separately prohibited by any other law of New Hampshire.
(h) Any claim that defendants’ or responsible parties’ qualified products were not misused, or were not intended to be misused, in an unlawful manner.
(i) A defendant’s assertion that state or federal laws relating to qualified products and responsible parties’ operations displace, abrogate, or supersede the actions authorized under this chapter, the authority of the courts of this state to provide a forum for the action, or the authority of the courts of this state to provide a remedy to harmed parties.
(j) A defendant’s assertion that choice-of-law and choice-of-forum clauses govern the action, regardless of whether such clauses apply to harmed parties by basis of consumer transactions.
(k) A defendant’s assertion that plaintiff(s) assumed a risk of harm through the use of their products.
(l) A defendant’s forum non conveniens assertion, so long as the jurisdictional requirements of this chapter are satisfied.
XIII. An action brought under this section may be resolved by settlement through mediation and/or arbitration upon written consent of both parties; however, mediation or arbitration may not be mandated by the courts of this state.
XIV. This chapter shall not be construed to impose liability on any speech or conduct protected by the First Amendment to the United States Constitution, as made applicable to the states through the Fourteenth Amendment to the United States Constitution, or by the New Hampshire constitution.
XV. Notwithstanding any other provision of law to the contrary, the State of New Hampshire, a state official, or a district, county, or city attorney shall not intervene in an action brought under this section. However, this subdivision does not prohibit a person described by this subdivision from filing an amicus curiae brief in the action.
XVI. Notwithstanding any other provision of law to the contrary, a court shall not award attorney’s fees or costs to a defendant in an action brought under this section, unless the plaintiff was represented by counsel in the action and plaintiff’s counsel is found by the court or this state’s bar association to be in violation of the rules of professional conduct or civil procedure in New Hampshire.
XVII. An action pursuant to this section shall not be brought against a federal government, state, political subdivision, or an employee of a federal government, state, or political subdivision on the basis of acts or omissions in the course of discharge of official duties.
546-D:3 Offset to Damages and Defenses to Liability.
I. The following are offsets to damages:
(a) Payments made to a harmed party pursuant to a contract of insurance will offset damages. Insurers shall have the right to bring a subrogation action against responsible parties for recovery of payments made to harmed parties under a contract of insurance regardless of whether the insured has been made whole.
(b) Evidence that a harmed party fully recovered from a public body for alleged injuries.
II. All of the following are affirmative defenses to an action brought under this chapter:
(a) Evidence of intentional destruction of property or intentional worsening of damage to reach the amount in controversy threshold.
(b) Evidence of gross negligence by the harmed party.
(c) The defendant has the burden of proving an affirmative defense under this subdivision by a preponderance of the evidence.
546-D:4 Fee and Cost Shifting From Challenges to Enforcement.
I. Notwithstanding any other provision of law to the contrary, any person, including an entity, attorney, or law firm, who seeks declaratory or injunctive relief to prevent this state, a political subdivision, a governmental entity or public official in this state, or a person in this state from enforcing any portion of this statute, state rules of civil procedure, or any other related law that promotes consumer protection and remedies to injuries from climate disasters and extreme weather attributable to climate change, or that represents any litigant seeking that relief, is jointly and severally liable to pay the attorney’s fees and costs of the prevailing party.
II. For purposes of this section, a party is considered a prevailing party if a court does either of the following:
(a) Dismisses any claim or cause of action brought by the party seeking the declaratory or injunctive relief under paragraph I, regardless of the reason for the dismissal.
(b) Enters judgment in favor of the party opposing the declaratory or injunctive relief under paragraph I, on any claim or cause of action.
III. Regardless of whether a prevailing party sought to recover attorney’s fees or costs in the underlying action, a prevailing party under this section may bring a civil action to recover attorney’s fees and costs against a person, including an entity, attorney, or law firm, that sought declaratory or injunctive relief under paragraph I not later than the third anniversary of the date on which, as applicable:
(a) The dismissal or judgment under paragraph II becomes final upon the conclusion of appellate review.
(b) The time for seeking appellate review expires.
IV. None of the following are a defense to an action brought under paragraph III:
(a) A prevailing party under this section failed to seek recovery of attorney’s fees or costs in the underlying action.
(b) The court in the underlying action declined to recognize or enforce the requirements of this section.
(c) The court in the underlying action held that any provision of this section is invalid, unconstitutional, or preempted by federal law, notwithstanding the doctrines of issue or claim preclusion.
V. Any person, including an entity, attorney, or law firm, who seeks declaratory or injunctive relief under paragraph I, shall not be deemed a prevailing party under this section or any other provision of this chapter.
546-D:5 Reading of This Chapter.
I. This chapter shall not be construed to do any of the following:
(a) Authorize the initiation of a cause of action under this act against an entity that is not a "responsible party".
(b) Authorize the initiation of a cause of action under this chapter when the "amount in controversy" requirements are not met.
(c) Wholly or partly repeal, either expressly or by implication, any other statute that regulates or prohibits any conduct relating to climate disaster or extreme weather attributable to climate change.
546-D:6 Sovereign, Governmental, and Official Immunity.
Notwithstanding any other provision of law to the contrary, New Hampshire has sovereign immunity, a political subdivision has governmental immunity, and each officer and employee of this state or a political subdivision has official immunity in any action, claim, or counterclaim or any type of legal or equitable action that challenges the validity of any provision or application of this act, on constitutional grounds or otherwise. A provision of state law shall not be construed to waive or abrogate an immunity unless it expressly waives immunity under this section.
546-D:7 Severability.
I. This chapter shall be construed in all respects so as to meet all constitutional requirements. If any provision or clause of this chapter, or the application thereof to any person or circumstances, is held invalid, such invalidity shall not affect other provisions or applications of this chapter, and to that end, the provisions of this chapter shall be separable from all other sections hereof and the nullification of any section from this chapter shall have no effect on the remaining sections of this chapter.
546-D:8 Savings.
I. Every and all existing litigation filed in the courts of this state under the statutes of this state shall not be expressly or impliedly preempted, displaced, mooted, or dismissed upon any other prudential consideration arguably arising from this chapter.
II. The remedies provided in this act are in addition to any other remedy available to a person or the state at common law or under statute. This chapter may not be interpreted to prevent a person or the state from pursuing a civil action or any other remedy available at common law or under statute.
III. This chapter does not:
(a) Relieve the liability of an entity for damages resulting from climate change, as provided by law.
(b) Preempt, displace, or restrict any rights or remedies of a person, the state, units of local government, or tribal government under law relating to a past, present, or future allegation of the following:
(1) Deception concerning the effects of fossil fuels on climate change.
(2) Damage or injury resulting from the role of fossil fuels in contributing to climate change.
(3) Failure to avoid damage or injury related to climate change, including claims for nuisance, trespass, design defect, negligence, failure to warn, or deceptive or unfair practices and claims for injunctive, declaratory, monetary, or other relief.
V. This chapter does not preempt, supersede, or displace any state law or local ordinance, regulation, policy, or program that:
(a) Limits, sets, or enforces standards for emissions of greenhouse gases.
(b) Monitors, reports, or keeps records of emissions of greenhouse gases.
(c) Collects revenue through fees or levy taxes.
(d) Conducts or support investigations.
7 Effective Date. This act shall take effect January 1, 2026.
25-0840
1/6/25
HB 601-FN- FISCAL NOTE
AS INTRODUCED
FISCAL IMPACT: This bill does not provide funding.
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Estimated State Impact | ||||||
| FY 2025 | FY 2026 | FY 2027 | FY 2028 | ||
Revenue | $0 | $0 | $0 | $0 | ||
Revenue Fund(s) | None | |||||
Expenditures* | $0 | Indeterminable | Indeterminable | Indeterminable | ||
Funding Source(s) | General Fund | |||||
Appropriations* | $0 | $0 | $0 | $0 | ||
Funding Source(s) | None | |||||
*Expenditure = Cost of bill *Appropriation = Authorized funding to cover cost of bill | ||||||
METHODOLOGY:
The bill allows for civil remedies, though it's impossible to predict the number of cases that might arise. However, the Judicial Branch has provided average cost estimates for civil cases in the Superior Court.
Judicial Branch Average Cost | FY 2025 | FY 2026 |
Superior Court Complex Civil Case | $1,430 | $1,473 |
Superior Court Routine Civil Case | $535 | $552 |
Superior Court Fees | As of 2/12/2020 |
Original Entry Fee | $280 |
Third-Party Claim | $280 |
Motion to Reopen | $160 |
AGENCIES CONTACTED:
Judicial Branch