NYC Gas Ban for New Buildings Upheld by Federal Judge

In New York City, a ban on natural gas in new buildings has been upheld in federal court, the first case to go against a previous, similar ban in Berkeley, California that was struck down in court.

New York City first adopted a phaseout of fossil fuels in new buildings in 2021, while the state of New York became the first U.S. state to ban natural gas in some new buildings in 2023. The city legislation sets an emissions target, where combustion in a building cannot emit more than 25 kilograms or more of carbon dioxide per million British thermal units of energy, rather than outright banning natural gas installations in new buildings.

By comparison, the law that was struck down in Berkeley specifically banned gas piping in new construction, a law that was struck down in 2023. That decision was again upheld in early 2024, Grist reported.

“It’s a clear win in that regard, because the 9th Circuit decision has had a really chilling effect on local governments,” Amy Turner, director of the Cities Climate Law Initiative at Columbia University’s Sabin Center for Climate Change Law, told Mother Jones. “Now there’s something else to point to, and a good reason for hope for local governments that may have back-burnered their building electrification plans to bring those to the forefront again.”

The New York City ban was challenged by industry groups and unions, who argued that the city’s law was preempted by the Energy Policy and Conservation Act (EPCA), a similar argument used in court against the ban in Berkeley.

However, the court disagreed with the challenge, noting that the EPCA preemption clause was not applicable in this case.

District Judge Ronnie Abrams, for the U.S. District Court for the Southern District of New York, wrote, “Further, as discussed, the Law affects the type of fuel that covered products may use in certain settings, not the performance standards applicable to covered products, and thus it neither ‘acts immediately and exclusively upon’ EPCA’s regime of uniform national standards, nor makes ‘the existence of’ such standards ‘essential to [its] operation.’”

The judge also noted that regulations on certain fuels and appliances are important parts of city building and fire codes, and if the argument that the gas ban was preempted by EPCA, that could also mean similar preemptions for other safety codes, which would be an “absurd result.”

The court decisions on Berkeley’s gas ban had slowed or prevented other cities from moving forward with similar legislation. Because the decision came from the 9th Circuit court, gas bans are illegal across the entire 9th Circuit region spanning the western U.S.

New York state’s gas ban is facing similar legal challenges, and Mother Jones reported that trade groups behind the challenge to the New York City gas ban plan to appeal the latest court decision.

However, experts said this decision could better encourage other local legislation against fossil fuels in new buildings to move forward.

Turner told Mother Jones, “Even if the air emissions route is not right for a city for whatever reason, other variations of a building electrification requirement or incentive could pass muster.”