Plumbers, contractors urge Second Circuit to reverse NYC gas appliance ban 

MANHATTAN (CN) — A group of plumbing and contractor trade groups asked a Second Circuit panel on Friday to revive their civil challenge to a New York City law prohibiting fossil fuel combustion utilities that emit measurable carbon dioxide, such as natural gas and heating fuel, in most new buildings.

Signed in 2021 by then-Mayor Bill de Blasio, the Green New Deal-type legislation mandated nearly all new buildings under seven stories to be entirely electric by Jan. 1, 2024, and taller ones after July 1, 2027.

The group of Empire State plumbing and building industry organizations sued New York City in Manhattan federal court in 2023, asserting the law is preempted by a clause in the federal Energy Policy Conservation Act of 1975 that prohibits state and local government regulations “concerning the … energy use” of covered products, like appliances, furnaces and heaters.

U.S. District Judge Ronnie Abrams affirmed the city’s fossil fuel ban, granting the city’s motion to dismiss the challenge because the New York City law does not concern “energy use” as the Energy Policy Conservation Act defines the term.

“Indeed, the law does not draw any distinction between products based on their energy efficiency or energy use as manufactured,” said Abrams, a Barack Obama appointee who permitted the city to enforce the policy in January 2024. “It instead regulates, indirectly, the type of fuel that a covered product may consume in certain settings, irrespective of that product’s energy efficiency or use.”

Now on appeal before the Second Circuit, the group of plaintiffs asked the federal appeals court to reconsider Abrams’ dismissal, warning that affirming the lower court’s dismissal would create confusion about the meaning of the Energy Policy and Conservation Act, or EPCA. They pointed to the Ninth Circuit’s ruling in *California Restaurant Association v. City of Berkeley, *which led to a repeal of the Bay Area city’s first-in-the-nation ban on natural gas piping in new buildings, finding it was preempted by the federal conservation law.

*“*The Ninth Circuit — the only circuit to have considered the preemption provision’s scope — held last year that EPCA preempts local bans on gas appliances,” the plaintiffs wrote in an appeals brief. “That makes sense: Banning an appliance from using any energy — and thus setting its maximum energy use to zero — concerns that appliance’s energy use and is therefore preempted.”

During in-person oral arguments on Friday, Washington, D.C.-based attorney Brian Baran argued on behalf of the trade groups that Congress intended there to be separate standards by fuel type, “precisely to avoid the standards making appliances that use a particular kind of energy unavailable.”

“Congress made a policy decision to say we’re going to try to reduce the energy consumption of appliances across the board, but we want to do so in a way that preserves consumer choice,” he said.

Baran said the original Berkeley ban “unleashed a proliferation of copycat legislation banning gas appliances are banning gas infrastructure,” which has resulted in several other related cases pending in the lower federal district courts weighing the question of presumption against preemption.

Representing New York City, attorney Rebecca Visgaitis argued the law regulates based on the type of fuel that is used, not the quantity of energy that an appliance consumes, and repeatedly characterized the policy as “agnostic” to energy use.

“We are operating on a different axis and a different regulatory sphere,” she told the three-judge panel. “This is something where the federal government has not taken action — Congress has not enacted a law saying that states and localities are not allowed to ban particular fuel sources.”

New York City insists the case turns on the trade groups’ misreading of the term “energy use” in the EPCA to refer to the ability to operate a product that uses energy, when instead Congress meant to refer to a characteristic of the product as designed.

“Giving the term the colloquial meaning plaintiffs propose would require setting aside established canons of statutory construction and rewriting the statute to fit plaintiffs’ preferred goals,” city lawyers wrote in an appeals brief. “Plaintiffs’ fail to identify any support for their reading in EPCA itself, and the limited precedent they rely on, the Ninth Circuit’s decision in California Restaurant Association, is unpersuasive because it reflects the same core misunderstanding.”

U.S. Circuit Judge Myrna Perez asked both sides to how broadly to interpret the word “concerning” in the EPCA’s preemption against state regulations “concerning the … energy use.”

Baran said the term does the same work as “relating to” in other preemption statutes.

“I think ‘concerning’ determines the relationship between the preempted subject matter, which is energy use, energy efficiency or water use of a covered appliance, and what is actually preempted,” he said.

Perez, a Joe Biden appointee, was joined on the panel by U.S Circuit Judge Robert D. Sack, a Bill Clinton appointee, and U.S. District Judge Loretta Preska, a George H.W. Bush appointee sitting by designation.

The panel did not immediately rule from the bench on the appeal Friday morning.

The coalition of plaintiff trade groups includes the Plumbing-Heating-Cooling Contractors National Association, the Association of Contracting Plumbers of the City of New York, New York State Energy Coalition, Plumbing Foundation City of New York Inc. and the Building Industry Association of New York City Inc.

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