A small group of building owners and individuals has filed a lawsuit challenging a centerpiece of the City's efforts to combat climate change – the Climate Mobilization Act. The Act, also known as Local Law 97, requires owners of most buildings over 25,000 square feet to dramatically reduce their building emissions in phases over the coming decade and beyond or face progressively steeper penalties. The law sets emissions limits based on square footage and occupancy group, and ratchets those limits down over time. For example, a typical apartment building under occupancy group R-2 (residential) may emit no more than .00675 metric tons of carbon dioxide per square foot between 2024 and 2029 and no more than .00407 per square foot between 2030-2034.
The Plaintiffs allege that the Act is preempted by the State's Climate Leadership and Community Protection Act (citing statutory and New York constitutional home rule provisions); the Act violates Due Process under both the State and federal constitutions on grounds of vagueness, retroactivity and excessive fines; and that the Act's penalties are really an improper tax that the City lacks authority to impose (again citing statutory and constitutional home rule provisions). The City must respond with an answer or motion to dismiss by the end of July.
Whatever the merit or lack thereof of Plaintiff's legal claims, the challenge highlights some important policy issues that already loom large in policymakers' minds as the Act's first compliance deadlines approach. For example, the Act's reliance on building size in setting of emissions caps, without consideration for density of occupancy, will have some unintended consequences. By indirectly penalizing density, the law treats a sparsely populated luxury apartment building with lower overall emissions (but higher emissions per resident) more favorably than a densely populated apartment building with higher emissions per square foot. The litigation also points out that the definition of "covered buildings" is unclear when applied to certain multi-building apartment complex configurations. The City Council has already amended the Act to address other practical concerns raised since its initial passage in 2019, and we expect there will be more to come. Carter Ledyard routinely advises clients on compliance with this and other green building laws and will be tracking both legislative and legal developments.
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