New York Gas Ban Tees Up Potential Supreme Court Fight

New York this week became the first US state to ban natural gas in new homes, creating what is likely to be a legal test case for the growing anti-gas movement.

The action comes in the wake of last month’s Ninth US Circuit Court of Appeals ruling that tossed out a similar ban by Berkeley, California, and potentially paves the way for the US Supreme Court to ultimately decide whether such bans amount to municipal overreach or acceptable oversight.

“Most certainly New York’s ban will be challenged in the Second Circuit" court that governs Connecticut, New York and Vermont, Taylor Holcomb, a partner specializing in energy, environmental and regulatory law at Jackson Walker, told Energy Intelligence.

“I’d expect the Ninth Circuit’s Berkeley decision would be persuasive there,” Holcomb said. “But if the Second Circuit decides the issue differently, that could tee up a ‘circuit split’ for Supreme Court review.”

He noted that the Ninth Circuit ruling explicitly said the 1970s-era Energy Policy and Conservation Act “ensured that states and localities could not prevent consumers from using covered products in their homes, kitchens, and businesses.” But others, including Amy Turner at Columbia’s Sabin Center for Climate Change Law, see a narrow scope for its application.

Whatever the US court system ultimately decides will have broad ramifications for dozens of similar laws in place across the country — including one in New York City.

‘Myopic Policy’

As part of a broad budget package, the Democratic-controlled New York legislature voted to prohibit gas furnaces, appliances and water heaters in newly constructed residences.

The measure, aimed at encouraging more climate-friendly equipment, such as induction stoves and electric heat pumps, takes effect in 2026 for buildings seven stories and under, and in 2029 for taller structures.

Gov. Kathy Hochul (D) has been a broader proponent of weaning the state off of fossil fuels, and cited the state’s 2019 goals for reducing greenhouse gas emissions by 40% by 2030 and 85% by 2050 from 1990 levels in supporting the ban.

The move was quickly lambasted by the gas industry, as well as Republican politicians who decried it as government overreach.

“This unprecedented decision significantly undermines New Yorkers’ access to affordable, reliable and efficient energy,” the American Public Gas Association said. “Natural gas serves as a vital source of energy for home heating, cooking and hot water — particularly for the low-income and vulnerable consumers who will be most impacted by this myopic policy.”

The utility trade group noted that 60% of New Yorkers currently heat their homes with gas and that requiring future customers to adopt all-electric appliances and furnaces “will shift the majority of that energy demand onto the state’s already overburdened electric grid. Not only will this further exacerbate grid reliability challenges, it will also decrease energy efficiency. … The new policy ignores these realities.”

New York State Sen. Robert Ortt (R) said the “first-in-the-nation, unconstitutional ban on natural gas hookups in new construction will drive up utility bills and increase housing costs.”

'Low-Hanging Fruit'

But environmental groups hailed the move and said they hope other states follow New York’s lead. "There is no way we can meet our climate goals without getting fossil fuels out of buildings," Matthew Vespa, a senior attorney with Earthjustice, told Energy Intelligence.

Vespa called the gas industry's arguments "disingenuous," saying the cost of expanding the gas grid to meet new demand would drive up energy bills far more than shifting to an electric-only model. "There's enormous potential to redirect money that would be spent on building new gas pipelines toward electrification," he said, as long as utilities and regulators plan ahead for the added pull on the power grid.

Vespa predicted that some cities and states will begin considering measures to expand their gas bans to existing homes and businesses, which he acknowledged would pose an even bigger political and legal challenge. "Starting with new construction makes a lot of sense. It's the low-hanging fruit," he said. "But I don't think we can stop there."

Since Berkeley’s ban nearly four years ago, more than 20 states have already passed laws forbidding local governments from prohibiting new gas installations. The issue has taken on new urgency in recent months after a member of the US Consumer Product Safety Commission floated the idea of banning gas stoves — a move the industry called "reckless" and lacking any scientific basis.

Amid intensive media coverage and public backlash, the Biden administration has since indicated that it is not considering any such ban. But New York state’s new law has many convinced that the issue is far from settled.