First published: Dec 2023
A Win for the Climate
TAKEAWAY Nearly 18 months passed between the filing of the Glen Oaks complaint and the court’s dismissal of it. One of the more interesting things about the Glen Oaks lawsuit is how much the ground had shifted under the plaintiffs’ feet during that period. For example, New York State released its final Scoping Plan under the CLCPA in December 2022, which, among other things, included an entire chapter highlighting the importance of coordinated action with local jurisdictions. “Partnership with local governments,” explained the Scoping Plan, “is a keystone of the State’s clean energy, adaptation and resilience, and greenhouse gas (GHG) emissions mitigation strategies” – a direct (if implicit) rebuke to plaintiffs’ assertion that the CLCPA pre-empted the CMA. As noted above, the Glen Oaks court was convinced that the two laws were not only consistent but should be read together. In addition, the Department of Buildings issued two sets of rules during the interim period that filled in many of the “vague” provisions of the law. For example, under the first set of rules issued in 2022, the DOB incorporated 61 different use-and-occupancy subgroups with different emissions factors for each, hopefully leading to more equitable and realistic emissions targets for covered buildings. With the newly issued “good faith efforts” rules, the DOB spelled out a detailed process by which building owners could seek to reduce or eliminate the annual fines issued for noncompliance during the 2024–2029 period. These rules underscore New York City’s position, contra the Glen Oaks plaintiffs, that building owners should have multiple viable compliance pathways short of just accepting massive annual fines. This decision is by no means the last word on legal challenges to Local Law 97. Not only is it expected that the Glen Oaks plaintiffs will appeal, but there will likely be new legal challenges once the DOB starts issuing fines to non-complying buildings in 2025. Nevertheless, this decision is a landmark in legitimating robust climate policy at the local level.
GLEN OAKS VILLAGE OWNERS, INC. ET AL V. CITY OF NEW YORK ET AL
WHAT HAPPENED: This action represents the first major – but unsuccessful – legal challenge to the validity of Local Law 97 of 2019, the centerpiece of New York City’s Climate Mobilization Act (CMA) and the legislative effort to decarbonize the city’s buildings sector to combat the escalating climate crisis.
In May 2022, a group of residential cooperatives and building owners, mostly based in Queens, sued the city, Department of Buildings (DOB), and DOB’s then-Commissioner, and asserted myriad legal theories attempting to invalidate Local Law 97. Further, the plaintiffs in Glen Oaks sought a drastic remedy from the court: to enjoin the defendants from implementing or enforcing any part of Local Law 97’s provisions.
The complaint was filed on May 18, 2022, and the city moved to dismiss it in July. The motion was fully briefed by October 2022, and the court issued a decision dismissing the complaint on Oct. 27, 2023.
IN THE COURT: Five main arguments were advanced in seeking invalidation of Local Law 97, and the court rejected each of these, dismissing the complaint in its entirety. The arguments made were:
1. That Local Law 97 was preempted by New York State’s Climate Leadership and Community Protection Act (CLCPA), which the state Legislature passed in July 2019, not long after the City Council had passed the CMA.
2. That the penalties to be assessed for violations of Local Law 97 are not in fact penalties but are instead improper taxes on carbon emissions.
3. That the “excessive fines” they expected to receive for noncompliance would “deprive them of property without due process of law.”
4. That Local Law 97 was unconstitutionally “retroactive” in application, because many of the plaintiffs previously had undertaken expensive capital projects based on existing environmental requirements.
5. That Local Law 97 was unconstitutionally “vague” because it “fail[ed] to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits.”
COUNSEL For Glen Oaks Village Owners, Robert Friedrich, 9-11 Maiden LLC, Bay Terrace Cooperative Section 1, Warren Schreiber KING & SPALDING; GIBSON, DUNN & CRUTCHER/ For New York City THERESA DERNBACH New York City Law Department / Judge J. Machelle Sweeting
