When the New York State Legislature debated legislation last session that would essentially ban gas appliances in most new buildings, members of the building trades argued that it would have a severe negative impact on them.
In a lawsuit filed last week, they reiterated those concerns, but the main argument is that the federal Energy Policy and Conservation Act, which sets standards for energy efficiency, conflicts with the state law, rendering it unenforceable.
“The argument here is that because this law would ban these products, it interferes with Congress’ authority to regulate these products,” said Jared Cook, an attorney and legal analyst with Tully Rinckey.
The group of plaintiffs, including a gas company and contractor associations, hired the same lawyers who successfully argued a similar case in Berkeley, California. A 9th Circuit panel ruled that the federal law preempted a city ordinance banning gas lines.
Cook said they’re relying heavily on the same argument in this case.
“The 9th Circuit,” he said. “They’re not binding on New York courts, so it doesn’t necessarily decide it, but it’s a persuasive point to point to another court that has looked at this issue.”
The new law is being phased in, but will apply to most smaller new buildings under seven storeys from 2026. Cook believes the case should be able to make its way through the courts before that deadline.
“In cases like this, it tends to move a little bit faster because you don’t usually have to have a trial because there’s no competing versions of the facts,” he said. “It’s just that we all kind of agree on what the facts are and we just need a court to decide what’s the disputed legal issue here.”
The state has 30 days to respond to the lawsuit. Berkeley, meanwhile, is asking for a rehearing before a larger panel of judges.
Cook said he expects both cases to continue working their way through the system.
“I imagine it’s almost certainly going to be taken up by the Supreme Court of the United States,” he said. “You can’t always say for sure, but it seems pretty likely when you have competing appellate court decisions on the issue.”
The State Department, which was named in the lawsuit, said it was reviewing the matter and could not comment on pending litigation.