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New York heats up nation

Dec 21, 2023

The New York assembly's approval of a ban on natural gas and other fossil fuels in new buildings is a major victory for climate activists that will heat up the nationwide debate over gas stoves and furnaces.

New York is now the first state that has passed a law to ban gas appliances in new buildings, though it may not be the last.

Meanwhile, Washington state already has building codes that restrict the use of gas heating in new apartment and commercial buildings, requiring heat pumps instead. California has also adopted building codes that encourage construction of buildings that use electricity rather than gas.

Supporters of the shift argue the bans are good public policy that will lower planet-warming emissions from burning natural gas, while keeping people more safe given studies linking gas appliances to asthma and finding that they can leak cancer-causing benzene.

They think the historic step by New York, which approved the ban as part of a larger budget bill, gives them momentum.

"What we’re seeing is that this is very momentum-based," said Panama Bartholomy, executive director of the Building Decarbonization Coalition.

He said New York's law could spark additional action from both states and in the private sector.

Amy Turner, a senior fellow at Columbia Law School, specifically pointed to Massachusetts, which currently has a pilot program in place under which 10 cities and towns are banning fossil fuels in new buildings, as another state that could take up the mantle.

"I assume it's already very interested in this kind of policy and the state of Massachusetts would therefore look to New York as a model," Turner said.

Opponents of the bans have described them as government overreach, arguing people should be able to decide what they want to cook with in their own homes.

The fight over gas stoves has increasingly become politically heated, with some states moving to block cities from enacting such bans.

In New York too, the issue was a partisan one, with Republicans in the state speaking out against banning gas appliances.

"This is an anti-free market effort to strip consumers of their right to choose the energy source that best fits their needs," Will Barclay, leader of the New York State Assembly's Republican Conference, wrote in a March op-ed.

More than 20 states have adopted what they’re calling "energy choice" laws that prevent cities from banning natural gas.

Dan Lapato, managing director for state affairs at the American Gas Association, said he sees debates over gas bans increasing at the state level.

"There's always that risk of others trying to pick this up and really replicate what New York's done," Lapato, whose organization represents the gas industry, told The Hill.

"The conversation's been moving to the state level," he added.

Lapato said that his group is not "abandoning" the Empire State and would still be "having conversations about the importance of natural gas infrastructure."

A city-level gas ban in California was recently struck down in court, raising questions about the legal prospects of what New York and other places are doing.

In 2019, Berkeley, Calif., became the first city nationwide to ban natural gas hookups in new homes. Last month, a federal appeals court struck down the ban, saying that Berkeley's ban on natural gas piping was preempted by the federal Energy Policy and Conservation Act.

The law says that products that fall under federal efficiency rules cannot also be regulated at the state level. The court interpreted this to include Berkeley's ban, saying that while the ban does not directly bar the purchase of consumer appliances, it could render gas appliances useless.

The implications of this ruling on other such bans around the country is unclear. Areas that are not in the 9th Circuit are not necessarily bound by its decision making.

"While it might be advisory authority in other areas — judges might look to it as an example — it's not binding authority," said Jennifer Rushlow, dean of the Vermont School of the Environment at Vermont Law and Graduate School.

"I do think in a lawsuit challenging this new ban in New York, the same issues would come up," Rushlow added.

Some observers argue that the Berkeley case may slow down these efforts.

Frank Maisano, senior principal at Bracewell LLP who works on communications and strategic counseling for energy industry clients, said he thinks the lawsuit could have a "chilling effect" on efforts to ban gas.

But Bartholomy, an advocate for reducing emissions and the ban, said New York appears confident its new law will stand up in the courts, given it passed the measure after the Berkeley decision.

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