As the New York State Legislature debated legislation last session essentially banning gas appliances in most new buildings, members of the building trades argued it would have a severe negative impact on them.
In a lawsuit filed last week, they reiterated those concerns but the primary argument is 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 since this law would ban these products, that it encroaches onto Congress’ authority to regulate these products,” Tully Rinckey attorney and legal analyst Jared Cook said.
The group of plaintiffs including a gas company and contractors’ associations has hired the same attorneys who argued a similar case in Berkeley, California successfully. A 9th Circuit panel ruled the federal law preempted a city ordinance banning gas piping.
Cook said they’re leaning heavily on the same argument in this case.
“The 9th Circuit Court of Appeals,” he said. “They’re not binding New York courts so it doesn’t necessarily decide it but it is a persuasive point to point to another court that’s looked at this issue.”
The new law is effective in phases but will apply to most smaller new buildings, under seven stories, starting in 2026. Cook believes the suit should be able to move through the courts before that deadline.
“In cases like this it tends to move a bit faster because you don’t need to have a trial typically because there’s not competing versions of the facts,” he said. “It’s just, we kind of all agree on what the facts are and we just need a court to decide, what’s the disputed legal issue here.”
The state is in a 30-day window to respond to the complaint. Berkeley meanwhile is asking for a rehearing from a larger panel of judges.
Cook said he expects both cases to continue to move through the system.
“I imagine it’s almost certainly going to taken up by the United States Supreme Court,” he said. “You can’t always say for sure but it seems pretty likely when you have competing Courts of Appeals decisions on the issue.”
The Department of State, which was the entity named in the lawsuit, said it is reviewing this matter and cannot comment on pending litigation.
