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.

Challenge to New York laws banning natural gas appliances and infrastructure in certain new buildings.

Mulhern Gas Co. v. Mosley

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New York Federal Court Dismissed Some Defendants from Challenge to State’s Natural Gas Ban

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United States of America

New York

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New York Federal Court Dismissed Some Defendants from Challenge to State’s Natural Gas Ban

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