Mulhern Gas Co. v. Mosley

The federal district court for the Northern District of New York rejected a claim that the federal Energy Policy and Conservation Act (EPCA) preempts New York’s statutory prohibitions on fossil fuel equipment and systems in certain new buildings. EPCA preempts state regulations “concerning the energy efficiency, energy use, or water use” of a “covered product” for which a federal energy conservation standard has been established. The New York statutes were enacted in 2023, and the New York State Fire Prevention and Building Code Council (Code Council) had commenced a rulemaking process (subsequently <a href="https://www.timesunion.com/capitol/article/new-buildings-new-york-face-major-shakeup-20786107.php">completed</a>) to amend the Energy Conservation Construction and Uniform Fire Prevention and Building Codes to implement the statutes’ prohibitions. The court first denied the motion by the New York Secretary of State (the only remaining defendant) to dismiss on standing or ripeness grounds, finding that the statutes themselves caused harm sufficient to establish an imminent and concrete injury traceable to the Secretary that was redressable by the courts. Though the amendments to the Codes had not been adopted, the court also found that since “there is no doubt that they will inevitably be adopted and contain the prohibition mandated by the statute,” the action was ripe. The court agreed with the defendants and intervenor defendants, however, that the challenged statutes are not regulations concerning “energy use” and therefore are not preempted by EPCA. The court found that the plaintiffs’ definition of “energy use” was not EPCA’s definition of the term, which is “the quantity of energy directly consumed by a consumer product at point of use,” determined in accordance with test procedures. The court declined to adopt the Ninth Circuit’s interpretations of “energy use” and “point of use” in <a href="https://climatecasechart.com/case/california-restaurant-association-v-city-of-berkeley/">California Restaurant Association v. City of Berkeley</a>, and instead cited the dissent’s analysis in Berkeley as well as the analysis of the federal district court for the Southern District of New York <a href="https://climatecasechart.com/case/association-of-contracting-plumbers-of-the-city-of-new-york-v-city-of-new-york/">upholding</a> New York City’s building electrification law, both of which concluded that “energy use” should be interpreted in accordance with its “specialized” meaning under EPCA. The court was not persuaded by the plaintiffs’ arguments that this interpretation of “energy use” would render superfluous EPCA’s exception from preemption for regulations in building codes concerning energy efficiency or energy use. The court also rejected the contention that its interpretation of “energy use” would conflict with EPCA’s preemption waiver provision. The court gave the plaintiffs 21 days to show cause why the court should not grant judgment as a matter of law in the defendant’s favor.

In a challenge to New York’s ban on natural gas appliances and infrastructure in certain new construction, the federal district court for the Northern District of New York dismissed on sovereign immunity grounds claims against the New York Department of State, the New York State Fire Prevention and Building Code Council (Code Council), and individual members of the Code Council. The plaintiffs conceded that claims against the Department of State and the Code Council were barred by sovereign immunity but argued unsuccessfully that claims were not barred against individual Code Council members because the members were tasked with implementing the statutory ban by amending the Energy and Building Codes and were thus enforcing state law under the doctrine of Ex Parte Young. The court found that suing the individual members in their official capacity “is little more than an attempt to sue the State under a different name, because those members … do not have a sufficient connection to the enforcement of the relevant statute.” The court noted that although the statute directs the Code Council to incorporate the ban into the Codes, the law specifies that the Secretary of State and county or local governments will have enforcement authorities. The court also noted, moreover, that the Secretary, not the Code Council members, had final authority to review and approve the amendments. The court granted the plaintiffs’ request for dismissal without prejudice in light of “significant uncertainty” regarding whether dismissal on sovereign immunity grounds is jurisdictional (and thus necessarily without prejudice) or an affirmative defense. The court stated, however, that the plaintiffs would not be permitted to amend their complaint against the dismissed defendants. The court declined to limit relief sought against the Secretary of State to prospective relief at this juncture, given that there was no indication the plaintiffs were seeking relief beyond that scope.