In announcing her fiscal year 2024 budget, New York State Governor Kathy Hochul announced that New York will soon become the first state to ban natural gas hookups in new construction.
The proposal, which has not yet been fully released, would likely not include any “exceptions” for local governments and would appear to be similar to the ban enacted in New York City in 2021.
Astonishingly, New York State’s ban is likely to be enacted less than three weeks after the Ninth Circuit Court of Appeals in San Francisco struck down an ordinance passed by the city of Berkeley that prohibited the construction of natural gas infrastructure. in California Restaurant Association v. City of Berkeley(9Thursday Circuit, April 17, 2023), a three-judge panel of the United States Court of Appeals for the Ninth Circuit ruled that such a ban is preempted by the federal Energy Policy and Conservation Act (EPCA).
According to the court, “EPCA’s preemption clause provides that once a federal environmental protection standard becomes effective for a given product, “no state regulation relating to the energy efficiency, energy use, or water use of such covered product shall be effective with respect to such product. project”, if the regulation does not meet one of certain categories, none of which were applicable in the given case.
At issue was the city of Berkeley’s 2019 attempt to regulate (or, less gently, ban) the use of natural gas appliances in new construction. Recognizing the legal difficulties of doing so directly, Berkeley passed an ordinance banning natural gas infrastructure in new buildings, apparently on the grounds that if an outright ban on connecting or using natural gas might be excessive, it outlawed infrastructure that gas can even enter new buildings. where it can then be consumed does not have to be. It doesn’t matter. The Ninth Circuit has held that both direct and indirect attempts to regulate energy infrastructure are preempted by federal law.
The federal government made the request amicus curiae (friend of the court) brief in support of Berkeley, arguing that there is no preemption of EPCA because the ordinance does not attempt to develop conservation standards specific to appliances covered by EPCA. In a very stark opinion, the Ninth Circuit rejected both Berkeley and the federal government’s position. It stated:
“[B]In enacting EPCA, Congress ensured that states and localities could not prevent consumers from using covered products in their homes, kitchens and businesses. EPCA preemption thus extends to regulations that apply to the products themselves and the local infrastructure for their use of natural gas.”
The upcoming New York law completely ignores the Ninth Circuit’s ruling. New York is in the second circuit, so Berkeley the decision does not necessarily control what happens in this other federal court when New York law is challenged (and rest assured it will be). But it’s a cheeky “in your face” challenge to a judge sitting in the Ninth Circuit. The Ninth Circuit was indeed very straightforward in its decision. Commenting on the Berkeley ban, which did not ban natural gas outright but only new infrastructure, the court said:
“States and localities cannot circumvent the text of broad preemption provisions by doing indirectly what Congress says they cannot directly.”
Regardless of what the courts say, it will likely take years for the matter to reach the Supreme Court. Until then, localities like New York State and New York City, where some kind of ban will be in place, will have to deal with the impact. According to the United States Energy Information Agency, natural gas accounts for approximately 60% of New York State’s power generation capacity and accounted for 46% of the energy New York State produced in 2021.
All in all, New York has placed a lot of its hopes on hydropower from Canada, but it’s hard to imagine how a high-voltage transmission line can be built from Quebec to New York without hitting at least some environmentally sensitive areas that could lead to problems. by many of the same environmental groups that are now applauding the natural gas ban.
Something like this actually happened when, in 2021, after the state of Maine had given approval to a power line company to carry hydropower from Canada to Massachusetts and work on the transmission lines had already begun, Maine voters—after heavy pressure from an alliance of environmental and business interests that objected to the project—approved a statewide referendum to retroactively ban the construction of high-voltage transmission lines in Maine’s wild and scenic Upper Kennebec region and subject other transmission projects to legislative approval.
The results of this referendum were later overturned in 2022 by the Maine Supreme Court on constitutional grounds.
However, what happened in Maine could very easily happen elsewhere, including New York.
So, a problem that is still ignored by many environmental activists and policy makers. Is there a realistic plan to power our lives as we move steadily away from the use of fossil fuels and inexorably towards electricity produced by so-called “clean energy” sources? Will people wake up one day and find they can no longer have heat or air conditioning and no one can leave their lights on? How do we actually compensate people (if we decide to compensate them at all, which remains a very big “if”) when they are forced to switch to electric heat pumps to heat their homes because fossil fuels have been banned or manufactured? virtually impossible to get, although they may still have perfectly working but older furnaces that they paid for long ago but can no longer use? As our politicians stumble to ban the use of fossil fuels virtually everywhere, it might be beneficial to start asking ourselves how exactly we will live when fossil fuels disappear from our lives entirely.