By Amy Turner

Yesterday, the U.S. District Court for the Northern District of California issued a long-awaited decision in California Restaurant Association v. City of Berkeley. The decision essentially – and subject to possible appeals – answered in the negative the question of whether Berkeley’s first-in-the-nation prohibition on natural gas hookups to newly-constructed buildings (often termed a “natural gas ban”; herein referred to as the “Berkeley Ordinance”) was preempted by the U.S. Energy Policy & Conservation Act (“EPCA”). But, more than that, the decision offers guidance with respect to other questions on local policymakers’ minds: What, exactly, does EPCA preempt? Does the phrase “local regulation… concerning the energy conservation [or] energy use” capture a huge range of policies that effectively, but indirectly, preclude the use of an energy type, no matter how far from direct energy “standards” they may be? The District Court’s decision indicates that EPCA preemption is not so far-reaching as some had argued.

To take a step back, EPCA – a sprawling law passed in the 1970s meant to conserve energy in the face of the oil crisis – directs the U.S. Department of Energy to set energy efficiency, energy use and water use standards for a range of “covered appliances,” including many large building systems like furnaces, water heaters and HVAC systems. In so doing, the law also expressly preempts state and local “regulation[s]… concerning the energy efficiency, energy use, or water use” set for these same covered appliances. In short, the federal government sets energy efficiency standards for furnaces, hot water heaters and HVAC systems; therefore, local governments generally may not. (There are some exceptions to EPCA preemption, including for standards set in state and local building codes, so long as they offer a range of compliance options. Berkeley’s 2019 Ordinance was not part of a building code.) To date, few cases parse EPCA’s preemption provisions relating to appliance energy standards (and the ones that do look at the building code exception).

In California Restaurant Association, a trade group (the “CRA”) representing members “interested in opening a new restaurant or in relocating a restaurant to a new building in Berkeley,” brought suit against the city. The plaintiffs made both federal and state law claims. (The state law claims can be summarized for our purposes as asserting that Berkeley should have followed the state building code amendment process and other state laws in enacting its natural gas restrictions; those claims were not decided by the District Court and are not relevant for purposes of this post.) The federal law claims asserted that EPCA preempted the Berkeley Ordinance because the Ordinance effectively prohibits the use of natural gas appliances and therefore “concern[s] the… energy use” of covered building appliances. EPCA defines “energy use” as “the quantity of energy directly consumed by a consumer product at point of use,” and “energy” as “electricity, or fossil fuels.” According to the CRA, the Berkeley Ordinance effectively requires appliances covered by EPCA to directly consume “zero” natural gas.

The District Court was not persuaded by the CRA’s preemption argument, calling it an “expansive interpretation of the EPCA… remarkable for its sweeping breadth.” Citing precedents that call for a narrow interpretation of statutory preemption language, the court rejects the notion that EPCA preempts local ordinances that do “not facially address any of those [energy conservation or energy use] standards, let alone mandate or require any particular use of a covered product.” The court further notes that a prohibition on natural gas infrastructure in new buildings “is clearly outside the preemption provision of the EPCA.”

While the decision is undeniably good news for the Berkeley Ordinance, it also offers guidance to the many other local governments around the country considering some sort of restriction on building natural gas use, particularly outside of a state or local building code. First, the District Court puts to rest a broad reading of EPCA preemption that would disallow local laws that (1) do not facially or directly set energy efficiency or energy use standards but that (2) “have some downstream impact on commercial appliances.” In a September 2020 brief, the city of Berkeley lists precedent state and local requirements that regulate equipment “covered” by EPCA that nevertheless are not preempted by EPCA. State safety regulations, for example, set emergency egress requirements for cold-storage units, even though freezers are regulated by EPCA. Similarly, some local requirements in California restrict new swimming pools as a drought mitigation measure; Berkeley notes that EPCA does not preempt these restrictions as impermissible energy efficiency standards for pool heaters. While local governments will still need to navigate state law limitations, yesterday’s decision suggests that they need not overthink EPCA preemption; policies that have some indirect impact on EPCA-covered appliances will not be held preempted on that basis alone.

Second, the District Court repeatedly reaffirms that states and local governments have powers expressly or impliedly delegated to them that EPCA preemption was not intended to displace. In particular, the District Court cites “a city’s exercise of its power to regulate building infrastructure to protect public health and safety,” a traditional exercise of the police power left to the states under the Tenth Amendment of the U.S. Constitution. The decision also notes the federal Natural Gas Act’s delegation of “all aspects relating to the direct consumption of gas” to the states. Noting that “wide swaths of the U.S. … lack natural gas access,” the District Court reasoned that “nothing in [EPCA] evinces legislative intent to require local jurisdictions to permit the extension of natural gas service.” This endorsement of express and traditional sources of local government authority should give local governments some comfort that their building decarbonization policies will not be preempted by EPCA by virtue of their “downstream impact on … appliances.”

It should be noted that California Restaurant Association has not been finally decided. In addition to potential appeals, Judge Yvonne Gonzalez Rogers dismissed the state law claims without prejudice, meaning that plaintiffs may bring those claims in state court. And, of course, every local government is subject to unique state law limitations. Still, the decision is a win for local governments. Cities can take from this decision that EPCA does not – beyond its express terms – impinge on their health and safety authority (to the extent delegated by the state), and that “downstream” consequences of their local laws on appliance energy use will not, without more, doom these local laws to preemption under EPCA.

July 2021 Updates to the Climate Case Charts


Posted on July 2nd, 2021 by tiffanychalle

By Margaret Barry and Korey Silverman-Roati

Each month, Arnold & Porter and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-U.S. climate litigation charts.

If you know of any cases we have missed, please email us at columbiaclimate@gmail.com.

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 147.

FEATURED CASE

Louisiana Federal Court Blocked Biden Administration “Pause” on New Oil and Gas Leases

The federal district court for the Western District of Louisiana issued a nationwide preliminary injunction barring the Biden administration from implementing a “Pause” on new oil and natural gas leases on public lands or in offshore waters. President Biden ordered the pause in Executive Order 14008, “Tackling the Climate Crisis at Home and Abroad,” to allow completion of a “comprehensive review and reconsideration of Federal oil and gas permitting and leasing practices in light of the Secretary of the Interior’s broad stewardship responsibilities …, including potential climate and other impacts associated with oil and gas activities on public lands or in offshore waters.” Although the states challenging the pause based their request for a preliminary injunction on federal agencies’ violations of the Administrative Procedure Act, the court found as an initial matter that the states had made a showing that President Biden had exceeded his powers when he ordered the “Pause” because the Outer Continental Shelf Lands Act (OCSLA) does not grant specific authority for the President to pause offshore oil and gas leases. The court then proceeded to conclude that the states had alleged standing, with allegations of particularized and concrete injuries based on loss of proceeds from new leases, as well as from loss of jobs and economic damages. The court found that those alleged injuries were fairly traceable to the pause and that a favorable ruling would redress the injuries. The court also found that the states could establish standing as a result of “special solicitude.” In addition, the court found that the states’ claims under the Administrative Procedure Act (APA) were within the “zone of interests,” as were their citizen suit claim under OCSLA and their ultra vires claim. The court rejected the government’s contention that the “Pause” and related actions—the cancellation and stoppage of offshore lease sales and the cancellation or postponement of “eligible lands” under the Mineral Leasing Act (MLA)—were not final agency actions reviewable under the APA. The court cited cases finding actions that were not permanent to be final agency actions. In addition, the court rejected the contention that these actions were committed to agency discretion and therefore not reviewable; the court held that the pausing of a lease sale was not within the discretion of agencies under either the OCSLA or the MLA. With respect to the criteria for a preliminary injunction, the court found that the states had a substantial likelihood of success on the merits on proving that the federal agencies implemented the “Pause” as directed by the executive order both to sales under the MLA and the OCSLA. The court concluded that the states had a substantial likelihood of success on the merits of their claims that the federal agencies’ actions were contrary to law (the OCSLA and MLA), that their actions were arbitrary and capricious, that the agencies failed to provide notice and an opportunity to comment, and that they unreasonably withheld or unreasonably delayed action they were required to take. The court also found that the states demonstrated a substantial threat of irreparable injury in the form of “very substantial damages” from lost ground rents and bonuses that would be difficult or impossible to recover due to sovereign immunity. In addition, the court found that equity and the public interest weighed in favor of the plaintiff states. Having found that the factors for a preliminary injunction were satisfied, the court also found that the injunction should be nationwide in scope due to the need for uniformity. Louisiana v. Biden, No. 2:21-cv-00778 (W.D. La. June 15, 2021).

After the Louisiana federal court issued the nationwide injunction, the federal district court for the District of Wyoming issued a sua sponte order in a separate case challenging the pause on new onshore leasing. The order directed the parties to submit briefs on whether the court should stay proceedings in light of the Louisiana court’s order. The parties all opposed staying the proceedings, though the trade group petitioners said the court could temporarily defer ruling on their motion for a preliminary injunction. On June 30, the Wyoming federal court denied the motions without prejudice, finding that they were “materially moot.” Western Energy Alliance v. Biden, No. 0:21-cv-00013 (D. Wyo. June 16, 2021).

Read more »

SABIN CENTER RELEASES ITS WINTER/SPRING 2021 SEMI-ANNUAL REPORT


Posted on June 28th, 2021 by tiffanychalle

The Sabin Center for Climate Change Law posted its Winter/Spring 2021 Semi-Annual Report, which includes a summary of the Center’s key activities between January and May 2021.

It is available for download here

Below are some highlights from the report:

  • With the Biden-Harris administration in office since January 2021, the Sabin Center’s work has shifted once again from a focus on COVID-19 and the Trump administration’s deregulatory agenda to the renewed federal government commitment to climate action and ongoing climate developments at the state and local level, in the private sector, and in the courts.
  • The Center will become an affiliate of the new Columbia Climate School. Faculty director Michael Gerrard has been deeply involved in the planning for the new school.
  • The Center launched the Climate Reregulation Tracker to follow the Biden administration’s progress reinstating and expanding on climate policies that had been rolled back under the previous administration.
  • The Center is cataloguing the new administration’s efforts to undo the Trump administration’s anti-science actions, as well as tracking anti-science actions at the state and local levels through our Silencing Science Tracker.
  • The Center continues to maintain the Model Laws for Deep Decarbonization in the United States website, providing legal tools needed to transition away from fossil fuels. We are currently cooperating with legal scholars in Brazil and Australia who are undertaking similar projects in those countries.
  • The Cities Climate Law Initiative’s senior fellow Amy Turner worked with several cities on legal questions relating to building decarbonization, natural gas transition issues and decarbonization of for-hire and delivery vehicles.
  • The Renewable Energy Legal Defense Initiative (RELDI) continues to represent community groups and local residents who support renewable energy development in their communities including New York’ first offshore wind farm and a New York-based solar facility.
  • The Center submitted comments and briefs to numerous agencies, including FERC, EPA, and NYPSC.
  • The Center sponsored/co-sponsored numerous virtual events and conference.
  • Executive director Michael Burger and climate law fellow Hillary Aidun received an Amicus Service Award from the International Municipal Lawyers Association.
  • Two Center papers were selected for inclusion in the Environmental Law and Policy Annual Review top 20 articles list.
  • The Center published books and articles on a variety of topics. These include, among others:

The UNEP Global Climate Litigation Report: 2020 Status Review, co-authored by Michael Burger and Daniel Metzger.

Removing Carbon Dioxide Through Ocean Alkalinity Enhancement and Seaweed Cultivation: Legal Challenges and Opportunitiesby Romany M. Webb, Korey Silverman-Roati and Michael B. Gerrard, February 2, 2021.

The Legal Framework for Offshore Carbon Capture and Storage in Canada, by Romany M. Webb and Michael B. Gerrard, February 10, 2021.

Migrants Can Make International Law, Harvard Environmental Law Review, Ama Francis, February 2021.

Principles of International Law and the Adoption of a Market-Based Mechanism for Greenhouse Gas Emissions from Shipping, by Hillary Aidun, Daniel Metzger and Michael B. Gerrard, February 27, 2021.

The Climate Leadership and Community Protection Act’s Environmental Justice Promise, by Hillary Aidun, Julia Li, and Antonia Pereira, April 2021.

Biden’s First 100 Days: Where he stands on science, op-ed by Romany Webb and Lauren Kurtz, The Hill, April 29, 2021.

To learn more about our work, our Climate Law Blog, and numerous media and news items in which Michael Gerrard, Michael Burger and Sabin Center fellows were interviewed, quoted or mentioned, read the report here.

U.S. Climate Litigation in the Age of Trump: Full Term


Posted on June 23rd, 2021 by tiffanychalle

By Korey Silverman-Roati

Litigators responded to the Trump administration’s climate deregulation agenda by filing hundreds of lawsuits across the U.S. over the four years of the administration. A new Sabin Center White Paper published today, U.S. Climate Litigation in the Age of Trump: Full Term, takes stock of 378 U.S. climate cases that responded or interacted with federal policy and law during the Trump administration. In the final two years, cases increased, as 219 were filed from 2019 until the end of the term.

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By Jennifer Danis

In a major decision, Environmental Defense Fund v. FERC, et. al (here) the D.C. Circuit ruled in favor of the Environmental Defense Fund in its challenge to the Federal Energy Regulatory Commission’s decision making on the Spire Pipeline, holding that FERC requires more than private, self-dealing contracts to find public need to build fossil fuel pipelines.

The Natural Gas Act, which is aimed at regulating the gas industry to protect the public interest, requires FERC to find that new gas infrastructure is required by the public convenience and necessity.  Enter Spire: a pipeline company that proposed a new interstate gas pipeline whose capacity would be contracted for by one entity: its own regulated utility affiliate.  If Spire acquired a Section 7 certificate, it would condemn over 200 acres of land to build its gas transmission line, wreaking environmental havoc on lands it crossed.  But there was a catch – the regulated utility affiliate turned back capacity on existing pipelines, citing safety, cost, and reliability benefits to its contracting for new capacity. This affiliate-supported gas pipeline project model was one of several across the country, in which state-regulated utilities got together and created new gas pipeline companies solely for the purpose of building new capacity —  on which the average return on equity garnered hovered around 14%.  And even if the capacity contracts cost more than ones the regulated-affiliates already held, their ratepayers would foot the bill: win-win for the corporate entities and private shareholders, but lose-lose for the ratepayers, the environment, and landowners along the route.

Like all the other projects of this genre, FERC approved the Spire project.  Based on one self-dealing contract between the pipeline company and its affiliated shipper, and attendant vague assertions of public benefit (but acknowledged flat demand) by the project proponent, FERC found that the project served the public interest, and that there was public need for this gas infrastructure.  When challengers brought the case to the D.C. Circuit, FERC maintained that it had protected the public interest and appropriately discharged its obligations under its Gas Act mandate.[1]

Vacating Spire’s Section 7 Certificate, the D.C. Circuit stated unequivocally that, “there is a difference between saying that precedent agreements are always important versus saying that they are always sufficient to show that construction of a proposed new pipeline ‘is or will be required by the present or future public convenience and necessity.’” Describing the federal commission’s approach as “ostrich-like,” the court found that evidence of “market need” is easily manipulated when a pipeline builder contracts with its affiliates for its project’s capacity – and that the Natural Gas Act requires FERC to protect the public interest by ensuring that there is, in fact, a public need for more gas transmission.   It distinguished prior caselaw that FERC and pipeline companies alike argued stood for the idea that private contracts for capacity are enough to show that there is market demand, and that market demand is a corollary for public necessity.

The impact of today’s opinion is potentially enormous – FERC has operated under a court-approved regime of insisting that it is never required to “look behind” private contracts to independently assess whether or not new gas infrastructure is needed.  With Spire, the D.C. Circuit disabused FERC of this idea, just in time for FERC’s reconsideration of its own policy for authorizing Section 7 infrastructure. Ironically, its existing Certificate Policy Statement quite literally commands it to do just that – consider more than just precedent agreements when determining public need, but FERC had been insisting otherwise.  In its policy revision inquiry docket, Docket No. PL18-1, the Sabin Center and New Jersey Conservation Foundation filed extensive and detailed recommendations focusing on precisely what data and analyses FERC must require from pipeline applicants in order to determine whether a proposed project satisfies the stringent Natural Gas Act requirement that it only authorize projects serving the public interest. See FERC Docket # PL18-1 recommendations (May 26, 2021). When revisiting its certification process, FERC now has some baseline guidance from the D.C. Circuit about how it must steward the public interest when deciding whether to approve new fossil fuel pipelines conjured up by self-dealing affiliates. It must look beyond precedent agreements when analyzing whether such projects meet the statutory standard, particularly where such proposals are heavily affiliate-driven.

This decision will also have important bearing on challenges to FERC’s Certificate Order for the PennEast Pipeline project, which the D.C. Circuit is currently holding in abeyance pending the outcome of a related Supreme Court case (which the Court will decide before the end of June). The PennEast project is also predicated on self-dealing private contracts, and its litigation record contains significant evidence demonstrating that those contracts do not reflect market need for that new gas pipeline. Given the enormous climate impacts of gas pipeline infrastructure, and its other adverse impacts on water resources and landowners along pipeline routes, this opinion is a warning to fossil fuel infrastructure developers that the days of FERC’s rubber stamping are over.

[1] The author was counsel to Dr. Susan Tierney, an Amicus in this D.C. Circuit challenge. (Amicus brief available here).

By Maria Antonia Tigre*

     Brazilian Amazon

Over the last year Brazil has seen numerous innovative climate litigation claims filed that have questioned the country’s climate policies and general effects of activities on climate change. (I wrote about some of those here and here.) The Amazon rainforest, the country’s not-so-secret weapon to mitigate climate change, features prominently in the litigation. The majority of the cases have been filed by the Amazon Task Force (ATF), established in 2018 by federal public prosecutors to unite the offices working to combat illegal deforestation in Amazonia. Cases have targeted the federal government for failure to contain a surge in deforestation and the federal environmental agency for easing timber exportation requirements.

A new case filed by the ATF through the Ministério Público Federal (MPF) in federal court targets a Brazilian farmer (Dauro Parreiras de Rezende) who was single-handedly responsible for the deforestation of 2,488.56 hectares (the equivalent of 4,650 football fields) between 2011 and 2018.

On April 16, 2021, the court granted an injunction – days after the case was filed – ordering the removal of the entire cattle herd from the farms that caused illegal deforestation. The court also suspended any paperwork related to the movement of cattle coming from or destined to the farms. The MPF further seeks to hold the farmer accountable for (i) residual material and intermediate climate damage, i.e., the value of emissions that deforestation has caused; (ii) collective pain and suffering as a violation of human rights (moral damages); (iii) intermediate and residual material environmental damages; and (iv) compensation for illegal profits from deforestation. This article analyzes the main legal aspects argued in the petition.
Read more »

June 2021 Updates to the Climate Case Charts


Posted on June 8th, 2021 by hillaryaidun

By Margaret Barry and Korey Silverman-Roati

Each month, Arnold & Porter and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-U.S. climate litigation charts.

If you know of any cases we have missed, please email us at columbiaclimate@gmail.com.

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 146.

FEATURED CASE

In Baltimore’s Climate Case Against Fossil Fuel Companies, Supreme Court Held that Appellate Review of Remand Order Extends to All Grounds for Removal

In a 7-1 decision, the U.S. Supreme Court held that the Fourth Circuit Court of Appeals erred when it concluded that its review of the remand order in Baltimore’s climate change case against fossil fuel companies was limited to determining whether the defendants properly removed the case under the federal officer removal statute. The Court declined to review the companies’ other grounds for removal, finding that the “wiser course” was to allow the Fourth Circuit to address them in the first instance. The Court’s decision concerned the interpretation of 28 U.S.C. § 1447(d), which provides that “an order remanding a case to the State court from which it was removed pursuant to section 1442 [the federal officer removal statute] or 1443 [removal statute for civil rights cases] of this title shall be reviewable by appeal.” The Court concluded that the ordinary meaning of “order” in Section 1447(d) would include “the whole of a district court’s ‘order,’ not just some of its parts or pieces.” The Court was not persuaded by arguments that exceptions to the general bar on appellate review of remand orders should be construed narrowly or that Congress would have expressly directed that appellate courts should review all aspects of remand orders had that been its intention. In addition, the Court cited its decision in Yamaha Motor Corp., U. S. A. v. Calhoun, 516 U. S. 199 (1996)—which concerned the scope of appellate review of orders certified for appeal by district courts—as its “most analogous precedent.” The Court found that Yamaha resolved any doubts about Section 1447(d)’s interpretation with its holding that appellate courts could address any questions contained in a district court order certified for appeal. The Court said other precedents cited by Baltimore “were driven by concerns unique to their statutory contexts.” Nor was the Court persuaded by the argument that Congress ratified lower appellate court interpretations limiting the scope of review for remand orders cases removed under Section 1443 when it enacted the exception for the federal officer removal statute. The Court stated that “[i]t seems most unlikely to us that a smattering of lower court opinions could ever represent the sort of ‘judicial consensus so broad and unquestioned that we must presume Congress knew of and endorsed it.’” Responding to policy concerns regarding efficiency raised by Baltimore, the Court first noted that policy arguments could not prevail over “a clear statutory directive” and found, moreover, that Section 1447(d) “tempers its obvious concern with efficiency” by providing for the exceptions to the bar on appellate review in the first place. The Court also suggested that a “fuller form of appellate review” could serve the cause of efficiency. In response to the concern that its interpretation would “invite gamesmanship,” the Court again said policy concerns could not override plain meaning and also noted that in any event Congress had addressed this policy concern by allowing courts to sanction frivolous arguments. Justice Sotomayor dissented, writing that she believed the Court’s interpretation would allow defendants to “sidestep” the general bar on appellate review by “shoehorning” a civil rights or federal officer removal argument into their case for removal. She also was persuaded that Congress had ratified the lower appellate court decisions holding that there was a narrower scope of review. Justice Alito did not take part in the case. On May 28, the Maryland state court hearing Baltimore’s case stayed the proceedings pending the Fourth Circuit’ review of the defendants’ other grounds for appeal. BP p.l.c. v. Mayor & City Council of Baltimore, No. 19-1189 (U.S. May 17, 2021).

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by Matteo Fermeglia, Catherine Higham, Korey Silverman-Roati and Joana Setzer*

Photo: Steve Buissinne, Pixabay

Climate litigation is now established as a critical part of domestic climate governance regimes. While domestic climate litigation is still the most notorious form of climate-related dispute resolution, arbitration and mediation are becoming important means of resolving climate-related disputes. However, the confidential nature of such processes means they are difficult to examine and quantify.

In 2021 the Sabin Center for Climate Change Law (Sabin Center) at Columbia University and the Grantham Research Institute on Climate Change and the Environment partnered with the Centre for Government and Law (CORe) at Hasselt University, to identify climate-related Investor-State Dispute Settlement (ISDS) cases for inclusion in Sabin Center’s Climate Litigation database and the Grantham’s Research Institute’s Climate Change Laws of the World database. At least 13 climate-related ISDS cases filed between 2012 and the present were identified. While these cases do not always contain explicit references to climate change, they all relate directly to the introduction, withdrawal or amendment of a policy measure explicitly developed to meet a country’s climate goals.

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by Iva Lea Aurer*

The historic judgment rendered by the District Court of the Hague on May 26, 2021 represents a new understanding of corporate liability in regards to the risk of harm caused by their contribution to climate change. The court ordered Royal Dutch Shell (“RDS”) to reduce its emission by net 45% by 2030 in comparison to levels in 2019 – although without assertion of any unlawful conduct by the defendant (link to the judgement in English here).

Background

In April of 2019, Milieudefensie, as well as 7 other NGOs and 17 379 private individuals, started a lawsuit against RDS seeking: (i) reduction of (net) 45% by 2030 compared to 2019; (ii) subsidiary reduction of 35% or (iii) reduction of 25% by 2030 compared to 2019. Plaintiffs argued that as Shell’s contribution to emissions is measurable and substantial (historic emissions associated with its production and sale of fossil fuels amount to approximately 1.8% of total global emissions, according to the Climate Accountability Institute, and its current share is around 1% of annual emissions), and therefore significantly contributes to the risk of harm to present and future generations’ interests, both in the Netherlands and abroad, it constitutes tortious behavior. They grounded defendant’s liability on violation of the unwritten standard of care, considered from the standpoint of 6:162 of the Dutch Civil Code, Dutch case law, and human rights.

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By Amy Turner  

This week marked significant growth for the building electrification movement, as the legal pathways in use by local governments to catalyze electrification doubled in number. Previously, local governments had pursued building electrification through building code provisions requiring or incentivizing electrification expressly, or through affirmative “bans” on natural gas hookups to new and renovated buildings. More than 40 local governments in California have taken the former approach, in addition to Seattle, while a much smaller number – three in California plus Brookline, Massachusetts – took the latter. Brookline’s attempt was later struck down by the Massachusetts attorney general.

Building electrification requirements – at times called “natural gas bans,” including on this blog – are subject to a complicated interplay of federal, state and local law, and many local governments have been found or determined themselves to be preempted from one or more approaches. This week’s advancements offer two new models for local governments looking to require or promote building electrification: air pollution and land use regulation.

New York City: On Thursday, May 27, Councilmember Alicka Ampry-Samuel and four of her colleagues introduced Intro. 2317, which would amend the City’s building code to limit greenhouse gas emissions from new and renovated buildings to 50 kilograms of carbon dioxide per million BTUs. The bill represents a twist on the strategy of updating a local building code to require or incentivize electrification: it uses the local building code process but focuses on air emissions. Buildings need not be built all-electric to comply with the code standard – appliances and building systems using any fuels are acceptable – but it will be far easier for them to comply if they do. The New York City bill is tailored to avoid preemption in two main ways. First, by setting an air emissions standard, it limits preemption risk by the U.S. Energy Policy & Conservation Act (EPCA), which prohibits state and local regulations “concerning the energy efficiency, energy use or water use of” many building systems and appliances. Second, by allowing for the continued provision of all forms of fuel, including fossil gas, it steers clear of potential preemption by the New York State public service law’s so-called “obligation to serve,” which declares as New York State policy “the continued provision of… gas, electric and steam service to all residential customers.” It should be noted that New York City has broad local building code authority, while many local governments are preempted by statewide codes. Still, the air emissions standard model could be adapted to apply for jurisdictions without building code authority, including for existing buildings. Intro. 2317 is not yet scheduled for a hearing.

Brookline, Massachusetts: Ten months after Brookline’s 2019 bylaw prohibiting gas connections to new buildings was struck down by the state’s attorney general, members of the local legislative body, Town Meeting, introduced Warrant Articles 25 and 26, two zoning bylaws that provide strong incentives for electrification in new buildings. WA-25 offers a number of incentives to buildings in the Emerald Island special overlay district. The approach parallels other conditions of the overlay district and can be expanded to new zoning overlays in the future. WA-26 is somewhat more novel, and applies to all projects seeking a special permit. Under WA-26, buildings built with fossil fuels will receive special permits that expire in 2030, while buildings built without them (i.e., that are built all-electric) will receive special permits that endure in perpetuity. Special permits are inherently discretionary, and in Brookline no building will be denied one solely on the basis of fossil fuel use. However, a new building will need to transition to non-fossil sources of energy within the next decade. WA-25 and WA-26 are both expressions of Brookline’s longstanding land use authority. Like many other local governments across the country, Brookline is preempted by the statewide building code and other state laws from enacting building construction requirements; however, it is within its authority to make land use determinations, including offering zoning incentives and approving or denying special permits for projects that are otherwise not allowed by the existing zoning code. The warrant articles are consistent with other uses of zoning incentives to induce sustainable building practices and features, and can be used as a model for local governments facing other forms of preemption that may inhibit progress on building electrification. If approved by Town Meeting, the warrant articles will require approval by the Massachusetts attorney general’s office.

Both approaches represent new legal pathways for local governments looking to spur building electrification. By focusing on air pollution and land use controls, areas of longstanding local authority for New York City and Brookline, respectively, these pieces of legislation offer models to local governments around the country whose authority does not allow local amendment of the building code or for other local construction requirements. The Brookline warrant articles sidestep potential building code preemption entirely by offering zoning incentives. The New York City bill also offers a useful model for using air pollution control authority to regulate building emissions. While it does invoke the City’s building code authority, it does not contain any specific requirements for building construction (such as the use of a type of building system) and could be adapted to another context more consistent with a local government’s legal authority to regulate. It is not yet clear whether any of these bills will face challenges in court. Many local governments have found themselves stymied in their efforts to promote building electrification; use of these novel legal pathways may provide a roadmap for new local building electrification programs.

 

 

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