As we previously reported, on June 30, 2026, the US Court of Appeals for the Second Circuit rejected arguments that New York City Local Law 154 and New York State’s amended Energy Law, which prohibit the installation of natural gas–powered appliances in most new buildings, are preempted by the federal Energy Policy and Conservation Act (EPCA). Following the June decision, the appellants filed a request for a rehearing en banc before the Second Circuit. On August 26, 2026, the Second Circuit denied that petition.
Attorneys for the appellants indicated a willingness to file a petition for a writ of certiorari to the United States Supreme Court. This petition must be filed by October 26, 2026.
The grant of certiorari is subject to the Supreme Court’s full discretion and is rarely granted, limited to only those cases with “compelling reasons.” Here, the Second Circuit’s decision unequivocally confirms a split with the Ninth Circuit on the EPCA’s reach.1 Two other federal appellate courts, the Fourth and DC Circuits, are also considering cases on appeal that address local laws curtailing the installation of fossil fuel infrastructure in new buildings and the preemption of these laws by the EPCA. Further, the US Department of Justice (DOJ) has taken an interest in similar cases where municipalities enact local laws to ban gas infrastructure and appliances in new construction. The DOJ recently initiated a lawsuit against the Township of Morris, New Jersey, over an ordinance that bans natural gas, propane gas, and fuel oil infrastructure and appliances in certain new construction and argued that the local ordinance is preempted by the EPCA. This federal interest, along with the circuit split, increases the odds that the Supreme Court elects to hear the case.
In the meantime, implementation of New York State’s Energy Law remains stayed. The stay will be lifted on October 28, 2026, unless a timely petition for certiorari is filed with the Supreme Court, in which case the stay will remain in place. New York City’s law was effective January 1, 2024.
Any potential ruling from the Supreme Court will not only impact new building construction across New York State but will have nationwide impacts as other municipalities attempt to regulate equipment and infrastructure that utilizes fossil fuels. Barclay Damon will continue to monitor these lawsuits and keep clients updated on any relevant developments.
If you have any questions regarding the content of this alert, please contact Yvonne Hennessey, Environmental Practice Area chair, at yhennessey@barclaydamon.com; Gabrielle Figueroa, special counsel, at gfigueroa@barclaydamon.com; Dan Krzykowski, associate, at dkrzykowski@barclaydamon.com; or another member of the firm’s Environmental Practice Area.
1The Ninth Circuit held that a local law passed by the City of Berkeley that prohibited the installation of natural gas piping in new buildings was preempted by the EPCA. See California Restaurant Association v. City of Berkley, 89 F.4th 1094 (9th Cir. 2024).