Synopsis
A collection of trade groups and labor unions have sued New York State over 2023 laws that would restrict the use of fossil-fuel equipment in new buildings. The challengers’ legal theory is essentially identical to the theory used in California Restaurant Association v. City of Berkeley, and they are using the same law firm as the plaintiffs in the Berkeley case. However, this court is not required to follow the Berkeley decision, and there is reason to think it may not.
Why it matters for Public Health
A mounting body of evidence is demonstrating that the use of fossil fuels has serious health consequences. Burning gas and other combusted fuels leads to unhealthy outdoor air, and the indoor health impacts can be similar to those of secondhand smoke.
Building code amendments that limit the installation of gas appliances in new buildings, like the ones in this case, are an important tool for reducing these health harms. This approach also makes the transition to electric appliances easier, since it is cheaper to design a new building to be all-electric than to retrofit buildings originally designed to use fossil fuels. For these reasons, energy codes have been popular among state and local governments as a way to advance public health and climate goals.
Background
As part of the state budget passed last year, the New York Legislature required that the state building code be amended to “prohibit the installation of fossil-fuel equipment and building systems” in most new buildings. The state mandated that the changes take effect for one set of buildings by the end of 2025, and for all non-exempt buildings by the end of 2028.
In New York, code changes involve two state bodies: the Fire Prevention and Building Code Council, which is responsible for adopting New York’s building codes, and the Secretary of State, which is responsible for enforcing it and creating rules and regulations for the training of local enforcement officers. The plaintiffs sued the Council and the Department of State, as well as the individual members of the Council and the Secretary in his official capacity.
The plaintiffs have asked the Court to prevent the defendants from enforcing the changes to the code, arguing that they are preempted by the Energy Policy and Conservation Act (EPCA). EPCA enables federal energy-efficiency regulations for certain appliances, as well as preempting state and local regulation of the “energy efficiency” and “energy use” of those appliances. A three-judge panel of the Ninth Circuit recently held that, under certain circumstances, laws that prevent appliances from being used are regulations of those appliances’ “energy use,” and therefore are preempted by EPCA. A strongly worded dissent filed later in the case, and supported by eleven Ninth Circuit judges, disagreed with that reading, urging other courts examining EPCA preemption “not to repeat the panel opinion’s mistakes.”
Because this case is in the Second Circuit, the judge in this case is not required to follow either the Ninth Circuit panel opinion or the dissent, but will likely take them into account. He may also be informed by another federal case in New York City, Association of Contracting Plumbers v. City of New York, where we expect a ruling on a very similar theory of EPCA preemption soon. It is worth noting that this case is the clearest example of an EPCA preemption challenge to building codes, since the Ninth Circuit and New York City cases both involved local ordinances that at least one party argued were not building codes. That could be important, since there is an exception from EPCA preemption for certain building codes that was not raised or addressed in the Ninth Circuit opinion.
Litigation Status
The plaintiffs filed their complaint on October 12, 2023, against both the Secretary of State and the state’s Building Codes Council. On August 29, 2024, Judge Glenn Suddaby dismissed the case as it applied to the Building Codes Council, holding that they were immune to this suit and leaving the Secretary of State as the sole defendant. PUSH Buffalo and the New York Geothermal Energy Organization (NY-GEO) were granted intervenor status on November 25, 2024, on the defendant’s side. The Air-Conditioning, Heating, and Refrigeration Institute (AHRI) filed an amicus brief supporting the plaintiffs’ motion and the Sierra Club and NYU Law’s Guarini Center filed amicus briefs opposing plaintiffs’ motion and supporting the state codes.
On July 23, 2025, the court denied both motions and gave notice to plaintiffs that it would grant summary judgment to the defendant if the plaintiffs could not show that they had other arguments to keep the case alive; the plaintiffs replied two days later to acknowledge that the judge should award judgment to the defendants, given his interpretation of EPCA preemption. The court’s opinion adopts the reasoning in Association for Contracting Plumbers v. City of New York and the dissent to the decision not to rehear the California Restaurant Association v. Berkeley case: that the Ninth Circuit’s interpretation of EPCA in Berkeley relies on the wrong definition of “energy use,” and that, under the appropriate definition, EPCA does not preempt regulations that prohibit the use of fossil-fuel equipment in new buildings.” The plaintiffs agreed that they had no other arguments in support of their case, and the court therefore dismissed the case on August 21.
The plaintiffs appealed the case to the Second Circuit on August 22, 2025. AHRI, the Sierra Club, and the Guarini Center filed amicus briefs with the Second Circuit, supporting the same sides as they did before the district court. Oral argument on the case was held, in tandem with Association for Contracting Plumbers v. City of New York and including argument from the U.S., on January 30, 2026. The oral argument can be heard here.
After appealing, the plaintiffs asked the district court to block the law from taking effect while the appeal was pending, and indicated that they would make the same request to the Second Circuit if the district court denied it. Before Judge Suddaby could rule on the motion, the state agreed to suspend the relevant regulations until 120 days after the Second Circuit rules or, if one of the parties ask the Supreme Court to take the case, 120 days after the Supreme Court either rejects the request or issues its own ruling.
On June 30, 2026, the Second Circuit consolidated this case with Association of Contracting Plumbers of the City of New York et al. V. City of New York and ruled in favor of the State, finding that EPCA does not preempt regulations that prohibit the use of gas appliances. In doing so, the Second Circuit disagreed with the Ninth Circuit's decision in California Restaurant Association v. Berkeley.
On July 28, the appellants filed a petition for rehearing en banc.