Legal Challenge To New York City's Local Law 97 Reinstated By Appellate Court



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About five years ago, the New York City Council enacted Local Law 97, which imposes strict restrictions on greenhouse gas emissions for large buildings, and assesses fines and penalties ...
United States Environment
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About five years ago, the New York City Council enacted Local Law 97, which imposes strict restrictions on greenhouse gas emissions for large buildings (25,000 square feet or larger), and assesses fines and penalties for non-compliance. Around the same time, New York State passed a climate law entitled the Climate Leadership and Community Protection Act ("CLCPA"), which, among other things, concerned "greenhouse gas emissions reduction measures." In May 2022, a lawsuit was brought challenging Local Law 97 on a variety of grounds, including that the New York State law preempted Local Law 97. While the trial court dismissed the lawsuit, the intermediate appellate court in New York reinstated the challenge solely on the grounds of "field preemption."

According to the legal doctrine of "field preemption," any local law will be pre-empted when a state legislature has "indicated its intent to occupy the particular field." In other words, if a state legislature enacted legislation intended to combat climate change by imposing certain standards, any local law in that area--regardless of whether it sought to undercut or enhance those standards--would be rendered a nullity. To be clear, in this case, the appellate court has not yet ruled that Local Law 97 is pre-empted by New York state law--but it is enabling the plaintiffs to challenge the regulation on that basis.

This decision, while it will ultimately turn on the interpretation of the text of the CLCPA, nonetheless has greater significance. Most importantly, it raises the prospect that efforts by localities or political subdivisions to enact laws focused on combatting climate change may see their efforts rendered futile by laws enacted at the state level. Here, in New York, the state and the locality were adopting laws that reinforced particular policies directed at combatting climate change (even if perhaps inartfully drafted). Where this decision may have particular resonance, however, is where certain cities or communities are located within a state that has contrary political tendencies--e.g., blue cities in red states, such as Miami, FL or Houston, TX. In those circumstances, local efforts could effectively be stymied by state action.


Glen Oaks involves a challenge to New York City's Local Law 97, which includes building emission limits intended to combat climate change. The plaintiffs, including homeowners, argued that Local Law 97 was preempted by New York state's Climate Leadership and Community Protection Act, or CLCPA. The Appellate Division agreed, and determined that Local Law 97 was potentially preempted by CLCPA provisions that arguably limited local abilities to enact greenhouse gas regulations. After enacting the CLCPA, New York state regulators have promulgated expansive plans to advance decarbonization. . . . The Glen Oaks decision is important, both because New York City regulations will likely serve as a model for other cities, and because the decision emphasizes that state laws focused on climate change may pose a hurdle to local efforts to regulate in the same space.

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