New study shows New York municipalities have legal authority to phase out fossil fuels, protect public health

Wednesday February 17, 2021

Analysis from Pace Law, SAFE Cities shows how cities, counties can enact policies on building electrification and pass bans on fracking, oil train terminals, gas stations, and more

NEW YORK — On Wednesday, Feb. 17, advocacy group Stand.earth’s SAFE Cities movement joined legal experts from the Pace Energy and Climate Center at Pace Law as well as state and local elected officials in a webcast that sets the stage for cities, villages, towns, and counties from across New York State to take major actions needed to phase out fossil fuels and protect public health in their communities. 

The webinar discussed new legal analysis from SAFE Cities and the Pace Energy and Climate Center, which showed that these local governments have legal authority to enact policies such as building electrification and bans on fracking, oil train terminals, gas stations, and fossil-fuel unloading docks. While municipalities are often preempted by state and federal law, the analysis found legal pathways for local governments to enact more than a dozen of these SAFE Cities-style policies. Similar to a traffic light, the analysis gave these policies a “green means go” designation. 

A recording of the webinar will be available soon.

“One of the inspirations for this legal study is what we often hear from local elected officials and staff: that gas, oil, and coal companies and trade associations regularly attempt to undermine local powers, both directly and through communication strategies. Fossil fuel companies consistently operate from an 'inevitability frame' that argues, 'this project is inevitable, you can't stop it, so let's talk mitigation.' What’s actually inevitable is the clean energy transition — and the local powers covered by this legal study will be a key part of that transition,” said Anne Pernick, Community Manager for SAFE Cities.

Webinar speakers included Craig Hart and Jessica Laird, of the Pace Energy and Climate Center at Pace Law; Nicola Armacost, Mayor of Hastings-on-Hudson; Robert Carroll, District 44 Assemblymember of the New York State Assembly; Robin Wilt, Councilmember for the Town of Brighton, and Dominic Frongillo, a former councilmember in Caroline, NY, and co-founder of Elected Officials to Protect New York.  

With this new analysis, New York’s elected officials are poised to simultaneously lead the charge into a climate-safe, decarbonized future, and to close the chapter on the era of fossil fuel “site fights” that have occurred in the past 15 years to stop projects like the Williams Pipeline, the Constitution Pipeline, and the Millennium Pipeline. To make this future a reality, elected officials will be using groundbreaking policies as models.

“Municipalities can use their authority … to adopt laws that protect the environment, such as banning fossil fuel production, adopting comprehensive commitment to sustainability, mandating energy efficiency, and permitting renewable power generation. Through this authority, municipalities can act to regulate greenhouse gas emissions, which in turn have the effect of limiting fossil fuel expansion through decreased consumption at the consumer level,” reads the legal analysis by the Pace Energy and Climate Center.

NEW YORK ELECTED OFFICIALS SPEAK OUT

Elected officials and community leaders face mounting pressure to act on the climate crisis. A recent public opinion survey of New York State residents found that 84 percent agreed that the continued heating of the Earth’s climate poses a serious problem for the world. Additionally, 86 percent of residents agreed that their governments should take action to require power plants to reduce emissions, while 80 percent supported requirements that would decarbonize buildings.

“As elected officials, we’re public stewards. We take a constitutional oath to protect the general welfare, now and into the future. When there's a problem like the climate crisis, like fossil fuels, which threaten all of our survival, it's our responsibility as elected officials to step up. We need a solution to that problem. By working together, elected officials, in solidarity with communities that we represent, can solve problems that cross municipal boundaries,” said Dominic Frongillo, a former councilmember in Caroline, NY, and co-founder of Elected Officials to Protect New York.

"There's no day like today to kick the bad habit of fossil fuels, it will take a lot of time. It will be difficult. But we can't keep investing in bad dirty antiquated fossil fuel technology and expect to meet the goals of the CLC EPA, or the goals of the climate, the Paris Climate accord. It's important that we hold our state representatives, our governor, as well as our mayors and county executives and city council members, our feet to the fire,” said Robert Carroll, District 44 Assemblymember of the New York State Assembly.

Armacost discussed Hastings-on-Hudson’s adopting an energy stretch code that makes buildings more energy efficient, while Wilt discussed how Brighton’s participation in a community-choice aggregation program lowered energy costs for residents while expanding access to renewable energy resources.

“The stretch code makes environmental and economic sense. It saves energy and money as it results in less energy use and in reduced operating costs; it increases property values as more homes, businesses, owners, and even tenants are looking for green and efficient buildings; and it will be a pivotal tool in supporting our village in achieving its energy and climate goals,” said Nicola Armacost, Mayor of Hastings-on-Hudson.

“New York State has the third highest average electric rate in the nation. Community Choice Aggregation leverages the collective buying power of the residents and small businesses at large enough scale to dictate the terms of how they buy electricity. These programs not only cut costs for consumers and provide strong consumer protection, but they presented an opportunity to advance on the energy goals that are articulated in New York’s Climate Leadership and Community Protection Act,” said Robin Wilt, Councilmember for the Town of Brighton.

ABOUT THE STUDY

In New York State, cities and counties from Albany to Rochester and Buffalo have many of the same legal pathways and authorities that New York City possesses, the analysis found. Reviewing the applicable federal, state, and local laws, as well as major court rulings and precedents, executive orders, and regulatory processes, the authors analyzed where and under what conditions municipal jurisdictions’ actions would be preempted by state and federal authority. 

The analysis reviewed the potential legal pathways for 24 SAFE-style policies — including resolutions declaring a climate emergency that specifically calls for an end to fossil fuel expansion, placing temporary or permanent restrictions on new fossil fuel infrastructure, and electrification policies such as mandates that new buildings be all-electric, electrifying public transportation fleets, and banning construction of new gas stations. 

The analysis found that 15 such policies are legally permitted under existing authority, allowing cities and counties to enact bans on an oil train terminal, a fossil fuel loading dock, and extracting fracked gas, as well as implementing a policy to decommission gas infrastructure and switch existing buildings to electric sources. The analysis determined that for seven more SAFE-style policies, the legal criteria favored the state and federal authorities, but municipalities could prevail in a court challenge using specific legal arguments or circumstances. These policies included implementing a ban on bulk fossil fuel storage facilities, restricting pipes and compressors, and banning sales of internal combustion engine cars. Finally, the analysis determined that just two SAFE-style policies—banning internal combustion engine cars and pipelines—are not allowed under current law.

The analysis cites the following as examples of what is possible in New York State: 

  • A zoning ordinance in the Town of Dryden that banned all activities related to the exploration, production, and storage of fracked gas and petroleum;
  • The East Hampton Climate Action Plan, which was New York State’s first municipality to commit to 100% renewable energy with a plan that includes dates, greenhouse gas emissions data and reduction targets, and other measures addressing fleet electrification, building energy efficiency standards, and land management;
  • Ithaca’s policy requiring new buildings produce 40% fewer greenhouse gas emissions than what’s required in the New York Energy Code. The policy will also require new buildings to be net-zero by 2030;
  • Westchester County’s adoption of a community-choice aggregation program that expands access to and increases consumption of clean energy resources;
  • The Chenango Valley Central School District’s petition under the State Environmental Quality Review Act to block construction in the Town of Fenton of a fracked gas compressor facility, which was proposed to be part of the Millennium Pipeline project. 

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Media contact: Peter Jensen, Stand.earth, safemedia@stand.earth, (415) 532-3817