Does the NY tropical hardwood purchase ban cover every tropical species, or only the species the statute lists by name?

Subject

The State Finance Law tropical hardwood ban applies only to the species named in the statute

Plain-English summary

The New York City Housing Authority asked the AG to construe State Finance Law § 165, which bars the state and its political subdivisions and public benefit corporations from purchasing tropical hardwoods. The statute defines "tropical hardwood" two ways. The first sentence is broad: any hardwood, scientifically classified as angiosperm, that grows in any tropical moist forest. The second sentence then says "tropical hardwoods shall be the following species" and lists about forty species.

The question was whether the species list was exhaustive or merely illustrative. If illustrative, the ban could reach any tropical hardwood species at all; if exhaustive, the ban touched only the forty species named.

The AG read the list as exhaustive.

The reasoning leaned heavily on a contrast with the companion subsection for non-tropical hardwoods. Section 165(1)(a) defines preferred non-tropical hardwoods and states that the list of non-tropical hardwoods "shall include, but not be limited to" the species named. By explicitly making one list non-exclusive, the legislature signaled it knew how to write open-ended language. The absence of that phrasing in the tropical-hardwood definition meant the tropical list was meant to be closed.

The legislative purpose supported the same reading. The Assembly debate showed the sponsor framing the bill as targeting "these particular species which have been reviewed with people at the Department of Environmental Conservation, experts in forestry" and naming this as only "a start on managing a complex problem." A narrow, precise list of banned species fit that approach; a broad, open-ended ban would have been a much larger intrusion into procurement that the legislature did not enact.

The second question dealt with one of the statutory exemptions. Section 165(2)(b)(i) carves out hardwoods purchased from "a sustained, managed forest." The Housing Authority asked what that phrase meant in practice. The AG had no answer because the statute provides no definition and the legislative history (limited to a Bill Jacket letter from Assemblyman Koppell referencing Brazil's certification practices) does not supply one either. The AG noted the existence of independent non-profit certification programs (the Forest Stewardship Council and similar), but did not suggest these certifications would automatically satisfy the exemption.

The practical result: a buyer can purchase tropical hardwoods that are not on the species list at all without triggering the ban. For listed species, the buyer must either find an alternative or rely on the "sustained, managed forest" exemption (acknowledging the absence of statutory guidance on what that means).

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why does the contrast between the two lists matter so much?

Because statutory drafters typically use parallel language when they want parallel effects, and different language when they want different effects. Section 165(1)(a)'s non-tropical list expressly says "include, but not be limited to." Section 165(1)(b)'s tropical list lacks that language. Reading both lists as illustrative would erase the legislature's choice to draft them differently.

Did the AG suggest a way to identify a "sustained, managed forest"?

Not in any binding way. The opinion notes that the Forest Stewardship Council and similar independent organizations operate certification programs that assess environmental performance, including sustained-yield management. The footnote points to FSC accreditation criteria as describing forest stewardship as "environmentally appropriate, socially beneficial and economically viable." But the AG was careful: those are private programs, not statutory standards.

What species are on the list?

The opinion describes "approximately forty species" but does not enumerate them in the text. A reader needing the actual list must consult the statute directly. (State Finance Law was reorganized after this opinion, see footnote 1; the provision is now part of Article 11, formerly § 167-b.)

What is the practical risk for a procurement officer?

The opinion provides cover for buying tropical hardwoods not on the list. For listed species, the safer approach is to specify a non-tropical substitute or to require the vendor to provide certification (FSC or equivalent) backing the "sustained, managed forest" claim, even though the statute does not define the term. Documenting due diligence on the source matters more than achieving textual certainty.

Statutory framework

State Finance Law § 165 (formerly § 167-b prior to enactment of new Article 11, see L 1995, ch 83) was enacted by L 1991, ch 663. It prohibits the state and "any governmental agency or political subdivision or public benefit corporation of the state" from purchasing tropical hardwoods or tropical hardwood products.

The definition in § 165(1)(b) reads: any hardwood, scientifically classified as angiosperm, that grows in any tropical moist forest, and then "tropical hardwoods shall be the following species" followed by the approximately forty species names.

The non-tropical definition in § 165(1)(a) uses "shall include, but not be limited to."

Exemptions in § 165(2)(b) include hardwoods from "a sustained, managed forest." The phrase is not defined in the statute.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-44_pw.pdf

Original opinion text

CONSOLIDATED LAWS OF NEW YORK, BOOK 1, § 98; STATE FINANCE LAW § 165; L 1991 CH 663.

State Finance Law § 165 was intended to prohibit the purchase of only those species of tropical hardwoods listed in the statute. We also conclude that the exemption for products from "a sustained, managed forest" is not defined in the statute.

September 5, 1995

Jeffrey Schanback, Esq.
New York City Housing Authority
Law Department
75 Park Place
New York, NY 10007

Informal Opinion
No. 95-44

Dear Mr. Schanback:

You have asked for an opinion on the scope of State Finance Law § 165.[1] That section, which was originally enacted in 1991, provides that

Except as hereinafter provided, the state and any governmental agency or political subdivision or public benefit corporation of the state shall not purchase or obtain for any purpose any tropical hardwoods or tropical hardwood products, wholesale or retail, in any form.

State Finance Law § 165(2)(a).

"Tropical hardwood" is defined as "any and all hardwood, scientifically classified as angiosperm, that grows in any tropical moist forest". State Finance Law § 165(1)(b). The definition goes on to state that "tropical hardwoods shall be the following species" and includes a list of approximately forty species. Id. You have pointed out that the first sentence of the definition embraces many tropical hardwoods that are not included on the list. You ask whether the list of species included in the statute is intended to be exhaustive or simply illustrative.

Initially, we note that the statute contains two lists. Section 1(a) defines non-tropical hardwood species as

any and all hardwood that grows in any geographically temperate regions, as defined by the United States Forest Service, and is similar to tropical hardwood in density, texture, grain, stability or durability.

The section goes on to state

Non-tropical hardwoods, the use or purchase of which shall be preferred under this article, shall include, but not be limited to the following species: . . .

A list of species follows. The list of non-tropical hardwoods is expressly stated to be illustrative and not exclusive. By contrast, the section dealing with tropical hardwoods does not by its terms include species that are not on the list. The Legislature's goal was to promote use of non-tropical hardwoods as substitutes for the woods it barred the State from purchasing. A broad definition of acceptable substitutes is in accord with that goal. If the Legislature intended the list of tropical hardwoods in section 165(1)(b) to be illustrative and not exhaustive, presumably it would have used the same language it employed in section 165(1)(a).

A narrow, precise definition of the prohibited products is in accord with the legislative scheme. During debate on this legislation in the Assembly, the sponsor stated

what we are doing here is saying that these particular species which have been reviewed with people at the Department of Environmental Conservation, experts in forestry, that these species should not be used unless there is no acceptable substitute.

Assembly Debate, July 3, 1991, p 49.

He also stated that

the state in setting an example, should not purchase these particular species of woods because they come from a sensitive area and we do not want to encourage these species being destroyed.

Id., p 63. He also recognized that the bill was only a start on managing a complex problem. Id., p 64.

We conclude that the statute was intended to prohibit the purchase of only those species of tropical hardwoods listed in the statute.

You also note that the prohibition contained in subsection 2 of the statute is subject to a number of exceptions. Section 165(2)(b)(i) states that the prohibition on purchase of tropical hardwood shall not apply to "any hardwoods purchased from a sustained, managed forest". You note that the phrase "sustained, managed forest" is not defined in the statute and ask for clarification in order to determine from whom you may purchase such products.

Legislative history provides little guidance on this question. A letter from one of the sponsors to the Governor's counsel states:

Subdivision 3 of the bill provides exemptions that are reasonable and do not penalize countries that are trying to manage their forest products industry. Brazil is currently certifying their exports of tropical hardwoods that come from the managed forests currently under United Nations supervision. Vendors can easily ascertain and certify that the products come from managed forests.

July 23, 1991 letter to the Governor's Counsel from Assemblyman G. Oliver Koppell, Bill Jacket, L 1991, ch 663. No definition of managed forests is included in section 165, nor did we locate any statutory definitions. We note that a number of independent non-profit organizations maintain wood products certification programs that evaluate the environmental performance of producers, including whether they practice sustained yield management. See, K. Koenig "Green Labelling Taking Root" Wood & Wood Products, Vol. 99, No. 3, March 1994; R. Vlosky and L. Ozanne, "Consumer Anxiety Fuels Certification Movement", Wood Technology, Vol. 122, No. 2, March 1995.[2]

We conclude that State Finance Law § 165 prohibits purchase of only those species of tropical hardwoods listed in the statute. The exemption for products from "a sustained, managed forest" is not defined in the statute.

The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this office.

Very truly yours,

SIOBHAN S. CRARY
Assistant Attorney General

[1] Formerly § 167-b, prior to enactment of new article 11. See, L 1995, ch 83.

[2] The Forest Stewardship Council has begun accrediting certification organizations based on a number of criteria including adherence to guidelines that define forest stewardship as environmentally appropriate, socially beneficial and economically viable forest management. See, J. Barrett, "Accreditation Offers Producers Cleaner Image", Pulp & Paper International, Vol. 36, No. 12, December 1994.