Just two months ago, the state argued in court that it couldn’t halt the all-electric buildings law even if it wanted to. Then it abruptly changed course.
After Gov. Kathy Hochul’s administration agreed, a federal judge finalized a deal last month that will likely suspend New York’s gas ban for at least a year. (Background screenshot: NYSERDA; Photo: Office of Governor Kathy Hochul. Illustration: Leor Stylar)
This story originally appeared in New York Focus, a nonprofit news publication investigating power in New York. Sign up for their newsletter here.
When New York abruptly backed down last month from its plans to implement a nation-leading ban on gas in new buildings, some legal observers had questions.
Lawmakers passed the All-Electric Buildings Act, which requires most new buildings to have only electric appliances, in 2023 as a step toward reducing pollution from the state’s largest source of greenhouse gas emissions and advancing New York’s legally mandated emissions targets. It was set to take effect in January.
Delaying the law’s implementation past then would cause the state “irreparable harm,” lawyers argued in an Oct. 1 brief. They’d spent two years successfully defending the law against industry opponents.
But the law is now on hold—with the state’s signoff. After Gov. Kathy Hochul’s administration agreed, a federal judge finalized a deal last week that will likely suspend New York’s gas ban for at least a year and potentially two or more.
New York’s sudden retreat came after a series of actions from Hochul this year walking back the state’s climate commitments: shelving a promised carbon pricing program and vowing to fight a court ruling to revive it; signing off on a thrice-rejected underwater gas pipeline after talks with President Donald Trump; and granting permits to a gas-powered cryptocurrency mining facility that regulators had long said violated the state’s climate law.
In late October, Hochul made it clear that she was having second thoughts about the building mandate, too. “On the electric building issue, I’m looking for an all of the above approach,” she told reporters in Rochester at the time. “I’m going to look at this with a very realistic approach and do what I can, because my number one focus is affordability right now.”
Republicans and upstate Democrats had been pressuring Hochul to press pause on the electric buildings law, and industry opponents of the law were still trying to persuade a judge to block it, but the state was holding its ground in court. Then, on Nov. 12, New York’s lawyers filed an agreement with the law’s opponents to delay implementation until four months after a federal appeals court and even the U.S. Supreme Court weigh in. The judge’s signoff made it legally binding—notably, delaying enforcement until after next year’s gubernatorial election.
Hochul’s office is now framing the court deal as a pragmatic step that will help uphold the law in the long term. “The Governor remains committed to the all-electric-buildings law and believes this action will help the State defend it, as well as reduce regulatory uncertainty for developers during this period of litigation,” said Spokesperson Ken Lovett in a statement.
Some legal experts are skeptical.
“The state’s move, while it was done under the cover of litigation, was 100 percent a political move,” said Amy Turner, director of the Cities Climate Law Initiative at Columbia University’s Sabin Center for Climate Change Law.
If the governor had sought to put the electric buildings mandate on hold through executive action, climate groups almost certainly would have sued. With the court agreement, Turner said, “they found a way to do it that makes it seem like their hands were tied.”
Here’s a closer look at what New York argued in court in early October—and why its recent backtracking is raising eyebrows among some legal observers.
1. Plaintiffs would need to meet a really high legal bar to put the law on hold.
The saga started when a coalition of gas and construction industry interests, including building trades unions, sued New York state in the federal Northern District over the freshly passed electric buildings law in 2023. They argued that under federal law, the state does not have the power to ban fossil fuel appliances.
Judge Glenn Suddaby ruled in favor of the state this July and dismissed the case, but the plaintiffs went back to him in September, pleading for him to suspend the law anyway while they appealed the ruling. They argued that they had a strong case, citing a federal appeals court in California that had overturned Berkeley’s first-in-the-nation gas ban on the basis of the same federal law.
It was not unusual for the New York plaintiffs to seek such an injunction, said Daniel Carpenter-Gold, an attorney at the Public Health Law Center who has been tracking the case. “But it’s also very difficult to win,” he said.
In their Oct. 1 brief, New York’s lawyers stressed just how high of a bar the plaintiffs would have to meet to secure an injunction at this stage—particularly since it was the first time in the two-year case that they’d asked the judge to take such a step.
Source: New York Focus/ New York State Unified Court System
They would need to convince the district court judge to block a law that was passed through the democratic process and that he himself had just upheld. To do so, they would need to show both that they had a good chance of winning at the appellate level, and that they would face “irreparable harm” if the law were allowed to proceed.
“Plaintiffs fail to satisfy any of these requirements,” the state’s lawyers argued.
2. New York State couldn’t block the law even if it wanted to.
The state went a step further in its Oct. 1 filing, arguing that it couldn’t suspend the law even if it wanted to. The Code Council had already finalized the new building code, the culmination of a lengthy process that takes place every five years and is meant to take into account new laws like the All-Electric Buildings Act that are passed in the interim.
Once the new code is published, it’s up to local code enforcement officials—not the state—to enforce it. In other words, New York’s lawyers argued, it was too late for a court to force the state to block it.
Source: New York Focus/ New York State Unified Court System
3. Delaying implementation would cause the state “irreparable harm.”
The final issue at stake in the recent court exchange was which side would suffer “irreparable harm” if their opponents prevailed. The plaintiffs argued that they would: Propane gas companies, for example, could lose much of their new business, and union plumbers and pipefitters could lose jobs.
The state countered that it would, because new fossil fuel buildings constructed while the law is on hold would last for decades to come, irreversibly setting back the state’s efforts to meet its legally binding climate targets.
Source: New York Focus/ New York State Unified Court System
As the political battle over building electrification heated up in early November, there was no sign that Judge Suddaby was wavering on his decision.
On Nov. 3, the plaintiffs said they would move the case to the Second Circuit Court of Appeals if he didn’t file an injunction within a week. He didn’t.
“The state has a strong case,” said Carpenter-Gold, of the Public Health Law Center. There was “nothing that I could see that would have indicated that their position had weakened in any way,” he said. So he was surprised when New York’s lawyers suddenly conceded the plaintiffs’ demand.
The deal suspends the law for at least a year: until the appeals court rules on it, which could easily take six months; while the plaintiffs potentially appeal to the U.S. Supreme Court, which could add several months more, even if the high court declines to take up the case; and for another four months either way.
Climate hawks are furious at the Hochul administration’s decision. After it was first reported, lawmakers and advocates lined up to demand that the governor reverse course. That would be hard for her to do. Now that the judge has signed off on the Nov. 12 deal, the state is under court order to keep the law on ice. The New York Department of State issued a notice late last week that the all-electric section of the building code is on pause.
It’s not yet clear whether the notice fully satisfies the court order, or whether the code council will take further action to codify the delay. Climate advocates are planning to rally outside its next meeting, on Dec. 5, either way.
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