Sabin Center Files Amicus Brief in New York’s Highest Court Supporting New York City’s Local Law 97 – Climate Law Blog

Last Friday, December 20, 2024, the Sabin Center submitted an amicus brief to the New York State Court of Appeals – the state’s highest court – in support of the City of New York in Glen Oaks Village Owners, Inc., et al. v. City of New York. At issue in the case is whether New York City’s Local Law 97 of 2019, the City’s building performance standards aimed at reducing greenhouse gas (GHG) emissions from its largest buildings, is preempted by New York State’s Climate Leadership and Community Protection Act (CLCPA).

Glen Oaks Village Owners v. City of New York began in 2022, when a group of cooperative apartment owners filed suit seeking to invalidate Local Law 97. The initial complaint, which brought five claims challenging Local Law 97’s lawfulness, was dismissed by the trial court. The Appellate Division, First Department, affirmed the dismissal of four of the five claims, but left open the question of whether the CLCPA preempted the field of GHG regulation within New York State, and therefore preempted Local Law 97. 

Preemption is legal doctrine that applies when a higher level of law – in this case, a state law – blocks or overrides a lower level of law – here, a city law. Field preemption is a type of preemption that occurs when a higher level of government has regulated so comprehensively in an area as to exclude lower levels of government from regulating in the area, creating state uniform regulation. Field preemption can be express or implied. As explained in DJL Rest. Corp. v. City of New York, 96 N.Y.2d 91, 95 (2001), in New York State, “an implied intent to preempt may be found in a ‘declaration of State policy by the State Legislature or from the fact that the Legislature has enacted a comprehensive and detailed regulatory scheme in a particular area.’” 

Effectively, the First Department held that the trial court had analyzed whether the CLCPA conflict preempted Local Law 97 – which means that a state and local law cannot be harmonized – when it should have used a test for field preemption. The First Department remanded the case to the trial court for a field preemption analysis. The City instead moved and was granted leave to appeal to the New York State Court of Appeals, which is now considering the question at hand: whether New York State, in enacting the CLCPA, impliedly occupied the field of GHG regulation and thus preempted Local Law 97.

The Sabin Center’s Amicus Brief

The Sabin Center’s amicus brief argues that a finding that the CLCPA field preempts Local Law 97 would be inconsistent with the CLCPA’s text, stated purpose, and scoping activities. We further argue that holding Local Law 97 preempted by the CLCPA would necessarily inhibit local regulation of GHG emissions, including but not limited to Local Law 97, and could interfere with other local efforts, such as policies to scale up renewable energy resources. With municipalities across the state punching above their weight in driving emissions reductions, a finding of field preemption could directly undermine these GHG reduction efforts, causing harm in New York’s communities, thereby worsening the already severe climate impacts on New Yorkers.

Climate change is already having adverse impacts on communities across New York State. Coastal communities and those in the lower Hudson Valley already experiencing more frequent and severe flooding is expected to get worse in the coming years. Chronic flooding from sea level rise and storm surges has become the norm in Southern Brooklyn and Queens. Extreme heat is also on the rise. Days over 90°F are starting earlier in the year and ending later in the year due to climate change, and disadvantaged communities are often most impacted by urban heat and have fewer resources to address them. Further, wildfire risk and drought have emerged as a top climate concern in New York. In the fall of 2024, a historic period of drought fueled hundreds of wildfires across the State, including hundreds just in New York City. If the CLCPA were held to preempt Local Law 97, the climate harms that New Yorkers are already experiencing would surely worsen.

In addition to the outsized climate impacts felt at the local level, we also explore how municipalities across the State are leading efforts to reduce GHG emissions, and the way in which the CLCPA anticipated state-local collaboration in this work. The CLCPA’s Final Scoping Plan – a plan that details how the state will reach the CLCPA’s climate mandates – devotes an entire chapter to the importance of local governments in meeting the requirements of the CLCPA, noting that they “have an important role to play in meeting Climate Act mandates” by “enact[ing] codes, develop[ing] projects, adopt[ing] policies, and regulat[ing] land use.” In other words, local government actions that regulate GHG emissions are expected and encouraged by the CLCPA. These efforts include climate commitments similar to those in the CLCPA, building electrification requirements, and requirements and incentives for private property owners to adopt electric vehicle (EV) infrastructure. 

At the same time, the 2022 Inflation Reduction Act (IRA) presents an unprecedented opportunity for municipalities to use federal funding to advance their climate efforts. New York municipalities have already used IRA funding to create climate action plans that will inform future local laws and regulations. These kinds of local action could experience preemption scrutiny were the court to make a broad finding that the CLCPA field preempts Local Law 97. As we explain: 

“While Local Law 97 is the subject of this litigation, it is just one of countless local actions – existing and future – implicated by this Court’s decision. The scope of field preemption could preclude local regulation of GHG emissions and significantly risk chilling a variety of local initiatives to reduce GHG emissions and transition to clean energy. Yet, the CLCPA’s legislative findings make clear that rapid reduction of GHG emissions is necessary to combatting the climate crisis, without distinction between State and local actions to do so.”

Preempting local governments from an entire field of regulation could generate uncertainty around what local actions qualify as “regulating GHG emissions.” Such uncertainty often has a chilling effect on local governments leery of litigation (including unfounded litigation), further hindering progress toward state decarbonization goals. Moreover, if the CLCPA were held to preempt the field of GHG emissions regulation, cities in other states with strong climate laws may also feel the chill of preemption. 

The State Legislature evidenced no intent to broadly preempt local GHG emission regulations in passing the CLCPA. For the Court to reach such a holding would be to determine that the State meant to defeat its own climate objectives by intentionally preempting the very GHG emissions reduction measures central to achieving the statute’s purpose. With New York State already falling behind on its CLCPA progress, and as the City notes in its brief, meeting the CLCPA’s emissions reductions mandates requires an “all hands on deck approach.” 

The case has been briefed and oral arguments were held on December 6, 2024. This will be the first time the Court of Appeals has considered the CLCPA, adding an additional layer of importance to the litigation. As we await the Court of Appeals’ decision, it’s crucial to recognize the stakes: preserving local climate action as a vital tool in combating the climate crisis. The Court’s ruling will set a precedent, not only for New York, but for other states grappling with the balance of state and local authority in addressing climate change.