Pipeline in industrial district
While announcing her Fiscal 2024 budget, New York State Governor Kathy Hochul announced that New York will soon be the first state to ban natural gas hookups in new construction.
The proposal, which has yet to be fully released, likely would not contain any “opt-outs” for local municipalities and would appear to be similar to a ban enacted by New York City in 2021.
Surprisingly, the New York State ban likely will be enacted less than three weeks after the Ninth Circuit Court of Appeals in San Francisco struck down an ordinance enacted by the City of Berkeley that banned the construction of natural gas infrastructure. In California Restaurant Association v. City of Berkeley, (9th 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 establishes that, once a federal conservation standard becomes effective for a covered product, ‘no State regulation concerning the energy efficiency, energy use, or water use of such covered product shall be effective with respect to such project’” unless the regulation meets one of certain categories, none of which was applicable in that case.
At issue was an attempt by the City of Berkeley in 2019 to regulate (or, less gently, bar) the use of natural gas appliances in new construction. Realizing the legal difficulties in doing so directly, Berkeley adopted an ordinance that banned natural gas infrastructure in new buildings, apparently reasoning that if a direct prohibition of natural gas hookups or usage may be overreaching, outlawing the infrastructure by which gas can even enter new buildings where it can then be consumed may not be. No matter. The Ninth Circuit ruled that both direct and indirect attempts to regulate energy infrastructure are preempted by federal law.
The federal government filed an amicus curiae (friend of the Court) brief in support of Berkeley, arguing that there is no EPCA preemption at issue as the ordinance does not attempt to develop conservation standards specific to appliances covered by the EPCA. In a very blunt opinion, the Ninth Circuit rejected both Berkeley’s and the federal government’s position. It stated:
“[B]y enacting EPCA, Congress ensured that States and localities could not prevent consumers from using covered products in their homes, kitchens, and businesses. So EPCA preemption extends to regulations that address the products themselves and the on-site infrastructure for their use of natural gas.”
The upcoming New York law completely ignores the Ninth Circuit ruling. New York is in the Second Circuit, so the Berkeley ruling does not necessarily control what will happen in that different federal Court when New York’s law is challenged (and rest assured, it will be). However, it is a brazen “in your face” challenge to the judges sitting in the Ninth Circuit. Indeed, the Ninth Circuit was very direct in its ruling. Commenting on the Berkeley ban, which didn’t outlaw natural gas directly but instead only new infrastructure, the Court said:
“States and localities can’t skirt the text of broad preemption provisions by doing indirectly what Congress says they can’t do directly.”
Regardless of what the courts say, the issue likely will take years to reach the Supreme Court. Before then, localities like New York State and New York City, where there will be some sort of ban, will have to deal with the fallout. According to the United States Energy Information Agency, natural gas accounts for approximately 60% of New York State’s energy generating capacity and constituted 46% of the energy that New York State generated in 2021.
Overall, New York has pinned many of its hopes on hydropower from Canada, but it is hard to imagine how high-voltage transmission lines can be constructed from Quebec to New York City without impinging on at least some environmentally sensitive areas that could result in challenges by many of the same environmental groups that are now applauding the natural gas ban.
Indeed, something like this already happened when, in 2021, after the State of Maine had granted approvals to a power line company to convey hydropower from Canada to Massachusetts and work on the transmission lines had already started, Maine voters – following a strong push by an alliance of both environmental and business interests who had objected to the project – approved a statewide referendum to retroactively ban construction of high-voltage transmission lines in Maine’s wild and scenic Upper Kennebec Region and to subject other transmission projects to legislative approval.
The results of that referendum were later overturned in 2022 by the Maine Supreme Court on constitutional grounds.
Nevertheless, what happened in Maine could very easily happen elsewhere, including New York.
Thus the problem, which continues to be ignored by many environmental activists and policy-makers. Is there a real plan for how to power our lives as we continue to migrate away from fossil fuel use and make the switch, inexorably, to electrical power generated by so-called “clean energy” sources? Will people wake up one day and find that they no longer can get heat or air conditioning, and no one can keep their lights on? Indeed, how will we compensate people (if we decide to compensate them at all, which remains a very big “if”) when they are compelled to switch to things like electric heat pumps to heat their homes because fossil fuels have been banned or made effectively impossible to get, although they may still have perfectly workable but older furnaces that they long ago paid for but can no longer use? As our politicians trip over themselves to ban fossil fuel use virtually everywhere, it might be beneficial to start asking ourselves how exactly we will live when fossil fuels are fully gone from our lives.
Source: https://www.forbes.com/sites/danielmarkind/2023/05/08/new-york-state-pushes-ahead-on-natural-gas-ban/