Local Action, Global Problem: Why and How New York City Is Tackling Climate Change

Fordham Urban Law Journal Fordham Urban Law Journal

Volume 50

Number 6

Building a Greener Future through

Urban Sustainability

Article 1

2023

Local Action, Global Problem: Why and How New York City Is Local Action, Global Problem: Why and How New York City Is

Tackling Climate Change Tackling Climate Change

Danielle Spiegel-Feld

Katrina M. Wyman

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Recommended Citation Recommended Citation

Danielle Spiegel-Feld and Katrina M. Wyman,

Local Action, Global Problem: Why and How New York City Is

Tackling Climate Change

, 50 Fordham Urb. L.J. 1187 (2023).

Available at: https://ir.lawnet.fordham.edu/ulj/vol50/iss6/1

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1187

LOCAL ACTION, GLOBAL PROBLEM: WHY AND

HOW NEW YORK CITY IS TACKLING CLIMATE

CHANGE

Danielle Spiegel-Feld & Katrina M. Wyman

Scholars often characterize local action to mitigate climate change as a

puzzle. No locality’s greenhouse gas emissions (GHGs) are sufficiently

large to materially affect climate change; cities that reduce their emissions

will therefore bear the costs of doing so, while deriving few climate benefits.

This Article analyzes why New York City has taken on the task of reducing

GHGs, and the evolution of its policies in the first two decades of the 21st

century. This Article argues that the city’s initial climate measures imposed

few costs on private actors and were largely linked to the traditional local

government objective of promoting economic growth. In contrast, the city’s

move in 2019 to impose legally binding requirements on local building

owners to decarbonize their buildings portend material costs and cannot

easily be explained in economic terms. These building mandates arose from

the work of committed policymakers inside city government and the city

council, and the grassroots activism of community groups motivated to

oppose President Trump and his stance on climate change. With a new,

more real estate-friendly mayor in office and a difficult economic climate in

This Article is based on a chapter in a forthcoming book by Danielle Spiegel-Feld and

Katrina M. Wyman on the role of cities in environmental law that will be published by

Cambridge University Press. Wyman is the Wilf Family Professor of Property Law at New

York University School of Law. When this article was drafted, Spiegel-Feld was Executive

Director of the Guarini Center on Environmental, Energy and Land Use Law at New York

University School of Law. The authors thank Sara Savarani and the editors of the Fordham

Urban Law Journal for their work on the Article.

In light of the topic of this article, the authors note that Spiegel-Feld was the lead author

of a 2021 report for New York City that examined whether the city should develop a carbon

trading program to help implement its building performance standard, Local Law 97 of 2019.

ANIELLE SPIEGEL-FELD ET AL., CARBON TRADING FOR NEW YORK CITY’S BUILDING SECTOR:

REPORT OF THE LOCAL LAW 97 CARBON TRADING STUDY GROUP TO THE NEW YORK CITY

MAYOR’S OFFICE OF CLIMATE AND SUSTAINABILITY (2021). Wyman was also an author of the

report.

1188 FORDHAM URB. L.J. [Vol. L

the city, there is uncertainty about whether the city will enforce the building

mandates. However, federal and New York State actions since the city

passed its building mandates in 2019, such as the federal Inflation Reduction

Act and state-led electricity decarbonization, may reduce the costs to

building owners of lowering building emissions, and therefore increase the

political and economic viability of New York City’s building mandates. In

sum, the history of New York City’s decarbonization efforts emphasizes the

potential for local action to address climate change and the difficult political

economy of such action.

Introduction .................................................................................... 1188

I. Green Growth ........................................................................... 1192

II. Protest Politics .......................................................................... 1197

III. Easing In .................................................................................. 1206

A. Declarations and Targets .............................................. 1207

B. Data Collection ............................................................. 1212

C. Mandates ...................................................................... 1222

D. Beyond Local Law 97 .................................................. 1237

IV. Will It Hold? ............................................................................ 1240

Conclusion ...................................................................................... 1244

NTRODUCTION

Scholars have treated local government actions to reduce GHG emissions

in the 21st century as a puzzle. No single city contributes enough to global

GHG emissions that its actions alone can materially impact the trajectory of

global change. Since GHGs produced in any particular location mix globally

and create global impacts, cities that take action to reduce GHG emissions

will bear the full cost of whatever investments they make towards reducing

GHGs but will only receive a small fraction of the benefit. If, as many

scholars argue, cities adopt policies to advance local economic interests, it

seems surprising that they would enact policies to fight against global

climate change.

1. For scholarship suggesting that subnational (meaning state and/or local) actions to

decarbonize are a puzzle, see, e.g., Jonathan B. Wiener, Think Globally, Act Globally: The

Limits of Local Climate Policies, 155 U.

PA. L. REV. 1961, 1965 (2007); Richard B. Stewart,

States and Cities as Actors in Global Climate Regulation: Unitary vs. Plural Architectures,

50 A

RIZ. L. REV. 681, 690 (2008); Daniel A. Farber, Yuichiro Tsuji & Shiyuan Jing, Thinking

Globally, Acting Locally: Lessons from the U.S., Japan, and China, 82 O

HIO ST. L. J. 953,

956 (2021). Some scholars have even argued that local governments have a “disincentive to

pursue climate protection because its costs are local but the benefits of GHG reduction are

shared globally.” Rachel M. Krause et al., Applying Policy Termination Theory to the

Abandonment of Climate Protection Initiatives by U.S. Local Governments, 44 P

OL’Y STUD.

2023] LOCAL ACTION, GLOBAL PROBLEM 1189

In the U.S. context, there is another reason local actions to reduce GHG

emissions are puzzling: U.S. cities are legally constrained in their ability to

regulate GHG emissions. American cities generally cannot directly regulate

emissions from the production of electricity or the use of motor vehicles,

which are under federal or state control.

Yet, together, electricity generation

and transportation account for more than half of U.S. GHG emissions.

Cities have far more power to regulate the demand for fossil fuels through

measures including land use planning, procurement policies, educational

campaigns, and subsidies for low-carbon alternatives. But due to limits on

local taxation authority, many cities cannot unilaterally impose taxes on

carbon intensive products, which many economists believe to be the most

efficient means of spurring decarbonization.

In short, cities that want to

engage in regulating GHG emissions must operate within a sea of second

bests.

Given all these limitations, why have some U.S. cities, most notably New

York City, taken on the global threat of climate change in the 21st century,

as we describe below?

Why are they trying to cut climate warming

J. 176, 180–81 (2016). Of course, many activities that produce GHG emissions also emit local

air pollutants, and so the reduction of GHG emissions can produce perceptible co-benefits;

making buildings more energy efficient so that they burn less oil for heat is an example of an

action that produces both GHG benefits and local air pollutant benefits. See Stewart, supra,

at 690.

2. See Katherine A. Trisolini, All Hands on Deck: Local Governments and the Potential

for Bidirectional Climate Change Regulation, 62 S

TAN. L. REV. 669, 674 (2010) (“Local

governments lack power to regulate vehicle technology, fuel composition, and power plant

technology and licensing, all critical determinants of transportation and energy emission

levels.”); see also Peter John Marcotullio et al., The Geography of Global Urban Greenhouse

Gas Emissions: An Exploratory Analysis, 121 C

LIMATIC CHANGE 621, 623 (2013) (noting that

“the electricity and heat used in urban areas often is produced outside of urban boundaries”);

Danielle Spiegel-Feld & Katrina M. Wyman, Building Better Building Performance

Standards, 52 E

NVT’L L. REP. 10268, 10269 (2022) (“[L]ocal governments and building

owners have only limited control over the stringency of BPSs [Building Performance

Standards] that peg compliance to GHGs. Electricity is a major source of energy for most

buildings, yet cities typically do not control the carbon intensity of electricity that is supplied

by the electricity grid.”).

3. See Sources of Greenhouse Gas Emissions, E

NVT’L PROT. AGENCY,

http://www.epa.gov/ghgemissions/sources-greenhouse-gas-emissions

[https://perma.cc/2BP6-Q9A8] (last updated Apr. 28, 2023).

4. See, e.g., Emma Newburger, A Carbon Tax Is ‘Single Most Powerful’ Way to Combat

Climate Change, IMF Says, CNBC (Oct. 10, 2019, 10:30 AM),

https://www.cnbc.com/2019/10/10/carbon-tax-most-powerful-way-to-combat-climate-

change-imf.html [https://perma.cc/2BP6-Q9A8]; Erin Adele Scharff, Green Fees: The

Challenge of Pricing Externalities Under State Law, 97 N

EB. L. REV. 168, 180–81 (2018).

5. We say “some” U.S. cities have taken on climate change advisedly because many

cities have not done so. “[A]lmost 45 percent” of the 584 cities with populations exceeding

20,000 that responded to a “Smart and Sustainable Cities Survey” in 2015–2016 “considered”

“climate change mitigation or adaptation . . . .low or nonexistent priorities.” RACHEL M.

1190 FORDHAM URB. L.J. [Vol. L

pollutants when any individual city’s actions won’t influence global

temperatures? Using New York City’s experience over the past two decades

as our central case study, we discern two distinct motivations—one

economic and one political—for its efforts to mitigate climate change.

Neither of these motivations provides a complete explanation for the City’s

efforts. Only when combined does the full picture come into view.

Looking first at the economic rationale, upon close analysis, it appears

that many of the City’s early 21st century “climate measures” were primarily

geared towards protecting city infrastructure and promoting economic

growth.

Few, if any, of these early measures imposed significant costs on

regulated entities.

Some of the City’s more recent climate policies, by contrast, portend real

costs on certain stakeholders — namely building owners, including of

residential properties — and are far more difficult to explain on the basis of

local economic interests alone.

These more aggressive actions, we believe,

emerged in part in response to political pressure from local progressive

interest groups that were motivated by a mixture of environmental, social

justice, and labor concerns. During the Trump presidency, when progressive

politicians were ascendant in deep-blue enclaves like New York City, local

environmental and social justice activists found many allies in city

KRAUSE & CHRISTOPHER V. HAWKINS, IMPLEMENTING CITY SUSTAINABILITY 23, 25–26

(2021).

6. We are by no means the first to consider why cities have taken on climate change.

Surveying the existing literature on the question, political scientist Sara Hughes identifies five

explanations: “opportunities for leadership, entrepreneurship, and city branding;” “a desire to

capture the local co-benefits;” “a sense of responsibility to address a threat;” and responding

to (in)action at other levels of government. S

ARA HUGHES, REPOWERING CITIES: GOVERNING

CLIMATE CHANGE MITIGATION IN NEW YORK CITY, LOS ANGELES, AND TORONTO 32–38

(2019). Accurately reflecting the state of the literature, Hughes does not mention local

political dynamics in large progressive American cities as a factor, a point that we stress based

on what we learned from researching the history of climate legislation New York City adopted

in 2019 and 2021. Other scholars have considered the characteristics of the cities that are, and

are not, addressing climate change. See, e.g., Krause et al., supra note 1, at 181 (“These studies

generally find that cities with larger, more educated and liberal populations, higher capacity

governments, and economies that put less stress on the environment are more likely to engage

on this issue.”).

7. See infra notes 28–37 and accompanying text.

8. See H

UGHES, supra note 6, at 35–37 (discussing the importance of the co-benefits that

localities may experience in acting to reduce GHG emissions as a factor driving local actions).

9. See, e.g., Natalie Wong, NYC Landlords Bracing for Millions in Fines with New

Climate Law, B

LOOMBERG (Jan. 19, 2023, 9:00 AM),

https://www.bloomberg.com/news/articles/2023-01-19/nyc-landlords-bracing-for-millions-

in-fines-with-new-climate-law [https://perma.cc/6CNJ-TQ2Q]; Carl Campanile, NYC Co-op

Owners, Covering Over 800K Apartments, Rebel Against Massive Climate Law Costing

Millions, N.Y.

POST (Apr. 30, 2023, 8:05 PM), https://nypost.com/2023/04/30/co-op-owners-

rebel-against-massive-nyc-climate-law-costing-millions/ [https://perma.cc/KBX2-SJH8].

2023] LOCAL ACTION, GLOBAL PROBLEM 1191

government, and the political power of large property owners waned with an

unpopular real estate developer in the White House.

This particular

allocation of political power made way for progressive local climate action

that might not otherwise have been possible. The big question going forward

is whether the progressive climate policies enacted in the late 2010s will be

enforced in the small number of cities that legislated them and replicated

elsewhere. With the Biden administration having passed a significant

climate law in the form of the Inflation Reduction Act (IRA) in 2022,

some

local policymakers may feel less compulsion to act. On the other hand, if

the IRA’s tax credits and grant programs are implemented in ways that help

to defray the costs of building decarbonization, then the IRA may provide

local policymakers with more scope for action by enabling them to

externalize some of the costs of climate policy to taxpayers beyond local

borders. The precarity of aggressive local decarbonization policies in places

such as New York that have adopted them reinforces the difficulty of

mitigating global climate change through local actions.

Parts I and II of this Article trace the different economic and political

motivations of cities such as New York that have acted to address climate

change. Part III analyzes the actions that cities have taken to reduce GHG

emissions since the early 1990s. It divides local policies into three categories

and suggests that there has been an evolution over time from declarations

and establishing GHG reduction targets, to estimating city emissions and

educating people about them, and, in a limited number of cities such as New

York, to a third type of policy in which the city mandates that private actors

reduce their emissions. We pay particular attention to innovative policies

that cities have adopted to decarbonize buildings, a traditional object of local

regulation where many cities have broad scope to act. The tools that New

York City developed in the first decade of the 21st century to track building

energy use rippled through dozens of American cities and states in the

decades that followed. However, as Part IV emphasizes, the jury is still out

on whether mandates that buildings reduce emissions, the most recent and

10. On the decline in the political power of real estate interests in New York City (and

State) in 2019, see John Leland, Real Estate Thought It Was Invincible In New York. It

Wasn’t., N.Y.

TIMES (Nov. 29, 2019), https://www.nytimes.com/2019/11/29/nyregion/real-

estate-industry-nyc.html [https://perma.cc/A68D-QZPY].

11. FACT SHEET: One Year In, President Biden’s Inflation Reduction Act is Driving

Historic Climate Action and Investing in America to Create Paying Jobs and Reduce Costs,

HE WHITE HOUSE (Aug. 16, 2023), https://www.whitehouse.gov/briefing-room/statements-

releases/2023/08/16/fact-sheet-one-year-in-president-bidens-inflation-reduction-act-is-

driving-historic-climate-action-and-investing-in-america-to-create-good-paying-jobs-and-

reduce-

costs/#:~:text=The%20Inflation%20Reduction%20Act%20is,making%20the%20tax%20co

de%20fairer [https://perma.cc/55SQ-AQPF].

1192 FORDHAM URB. L.J. [Vol. L

aggressive of the local policies, will be enforced and scaled up given the

costs of removing fossil fuels from existing buildings and blowback from

local property owners. To overcome political opposition to the

implementation of stringent building performance standards, city

governments may need financial assistance for building owners from higher

levels of government. Thus, even in areas, such as building policy, where

cities traditionally have significant control, economic and political

circumstances may constrain city governments’ space to maneuver. The

political economy of local decarbonization efforts that impose costs on local

actors is no simple matter.

I. G

REEN GROWTH

When Michael Bloomberg first took office as the mayor of New York

City in 2002, he was not known as an environmentalist. In fact, the mayor’s

most famous environmental “initiative” during the first term was to cut the

city’s recycling program.

By 2007, the mayor had created a pioneering

Office of Long-Term Planning and Sustainability, published a

groundbreaking plan to increase sustainability throughout the city, and

committed to reducing the city’s GHG emissions by 30 percent below 2005

levels by 2030.

It was a 180-degree turn. Writing in 2009, a journalist for

The New Yorker mused,

Who would have guessed, back in 2002, when the businessman Mayor

seemed to regard recycling as a discretionary luxury, that his physical

legacy might come to be defined as much by the planting of a million trees

and by lawn chairs in the middle of Times Square as by gleaming (and

empty) new office towers.

What sparked the change of heart? The biggest change, we would argue, is

that key voices in the administration came to believe that the city’s long-term

growth hinged on using resources more efficiently and getting climate

change under control. Daniel Doctoroff was an important voice in this

respect. Doctoroff, who worked in investment banking and private equity

before joining city government, was Deputy Mayor for Economic

12. See Geraldine Sealey, Is Recycling Worth the Trouble, Cost?, ABC NEWS (Mar. 8,

2002) https://abcnews.go.com/US/story?id=91824&page=1 [https://perma.cc/WW5L-

UNQM]; N.Y.C.

INDEPENDENT BUDGET OFF., REFUSE AND RECYCLING: COMPARING THE

COSTS 2 (Feb. 2004), https://www.ibo.nyc.ny.us/iboreports/refuseandrecycle.pdf

[https://perma.cc/CD4K-TCDL].

13. See NEW YORK CITY MAYOR MICHAEL R. BLOOMBERG, PLANYC 9 (2007),

https://www.nyc.gov/html/planyc/downloads/pdf/publications/full_report_2007.pdf

[https://perma.cc/92ZR-QHE3].

14. Ben McGrath, The Untouchable, NEW YORKER (Aug. 29, 2009),

https://www.newyorker.com/magazine/2009/08/24/the-untouchable [https://perma.cc/75S6-

CAVF].

2023] LOCAL ACTION, GLOBAL PROBLEM 1193

Development and Rebuilding during the first seven years Bloomberg was in

office.

Odd as it might seem, the roots of New York City’s climate agenda

trace back to Daniel Doctoroff and his failed efforts to bring the 2012

Olympic Games to New York City.

Back in the 1990s, when Doctoroff still worked in the private sector, he

became “obsessed” with the idea that New York City should host the

Olympics.

As Doctoroff recounts the story in his memoir, Greater than

Ever, even after crime rates fell in the 1990s and the city began to prosper

economically, it failed to make the infrastructural upgrades needed to unbury

itself from three decades of economic hardship and decay. “The terrible toll

of neglect was still apparent everywhere,”

he explained. In Doctoroff’s

view, the City needed major new development projects to bring it out of its

slump, yet the city seemed to have a “development phobia,” and its

antiquated land-use processes made such projects all but impossible.

“Hosting the Olympics could be the antidote to New York’s development

phobia,” he believed, bringing New York the types of major public works

projects that were necessary to revitalize the city and bring it into the 21st

century.

Once Doctoroff joined the Bloomberg administration, he had the full

support of City Hall behind the Olympic bid.

Eventually, New York City

won the support of the United States Olympic Committee as well, which

meant that the City would represent the United States in its bid to the

International Olympic Committee.

But that still left several other stiff

competitors, including from London, the world’s other financial capital. In a

crushing defeat for Doctoroff and his team, London ultimately won the

Games.

It is here that sustainability entered the scene. By 2004, London had a

sustainability plan in place as well as an innovative congestion-pricing

plan.

When a staffer at the NYC Economic Development Corporation

15. See Daniel Doctoroff, LINKEDIN, https://www.linkedin.com/in/dandoctoroff

[https://perma.cc/66Z8-BKSK] (last visited Sept. 8, 2023).

16. D

ANIEL DOCTOROFF, GREATER THAN EVER: NEW YORK’S BIG COMEBACK 9 (2017).

17. Id. at 10.

18. Id. at 9–11.

19. Id.

20. See Jim Rutenberg, Mayor Says Olympic Bid was Worth a Shot, N.Y.

TIMES (July 7,

2005), https://www.nytimes.com/2005/07/07/nyregion/mayor-says-olympic-bid-was-worth-

a-shot.html [https://perma.cc/SK4F-ZGNU].

21. See DOCTOROFF, supra note 16, at 30.

22. See id. at 268.

23. See MAYOR OF LONDON, THE LONDON PLAN: SPATIAL DEVELOPMENT STRATEGY FOR

GREATER LONDON 4–5, 121 (Greater London Authority eds., Feb. 2004),

https://www.london.gov.uk/programmes-strategies/planning/london-plan/past-versions-and-

1194 FORDHAM URB. L.J. [Vol. L

brought up London’s advances in this field, it set off Doctoroff’s competitive

instincts. “I was acutely sensitive to anything London did that would make

us less competitive because it had just beaten us out of the Olympics,” he

later explained.

There were other pressures pushing towards sustainability too.

Throughout Bloomberg’s first term in office, the city’s economy rebounded

from the September 11th attacks and its population steadily grew.

In fact,

studies that the city conducted during the time of the preparation of the

Olympic bid indicated that the city’s population would grow by a million

more before 2030, bringing the total number of inhabitants to over 9

million.

That meant 1 million more people traveling through the city

streets, competing for scarce green space, drawing water from the city’s

reservoirs, and taking electricity from the city’s grid. Looking at these

forecasts, Doctoroff came to believe that “it was logical to think that if we

didn’t manage the growth, we might even choke off the virtuous cycle of

[growth] we had set in motion.”

Future energy constraints were of particular concern to local officials. In

2004, the New York City Energy Policy Task Force concluded that “New

York City has adequate electricity resources today, but only by a slim

margin.”

The report went on to explain that “a projected increase of

approximately 1.5% annual in electricity demand in the next five years will

necessitate new generation and transmission facilities and expanded

distribution resource measures.”

The following year, oil prices reached

alterations-london-plan/london-plan-2004 [https://perma.cc/L8UR-VX6K]; Congestion

Charge in London, POLITICS.CO.UK, https://www.politics.co.uk/reference/congestion-

charge/ [https://perma.cc/647Q-W76B] (last visited Aug. 14, 2023).

24. DOCTOROFF, supra note 16, at 322.

25. See generally Michael L. Dolfman & Solidelle F. Wasser, 9/11 and the New York City

Economy: A Borough-by-Borough Analysis, M

ONTHLY LAB. REV. (June 2008).

26. See D

OCTOROFF, supra note 16, at 274 (“At one of the pre-Olympic decision meetings,

the City Planning Department brought in Joe Salvo, the head of its Population Division, to

make a presentation. Salvo’s series of PowerPoint slides told a compelling story: the virtuous

cycle of the successful city was taking hold. Crime was down; housing starts, particularly in

the outer boroughs, were up; and newcomers were pouring in much faster than people were

leaving, at an accelerating pace. The result was that population was growing more quickly

than we had anticipated. In fact, he predicted the city would have a startling nine million

people by 2030 (up from 8.1 million when we took office).”); see also Katherine Bagley &

Maria Gallucci, Bloomberg’s Hidden Legacy, I

NSIDE CLIMATE NEWS (Nov. 18, 2013),

https://insideclimatenews.org/news/18112013/bloombergs-hidden-legacy-climate-change-

and-future-new-york-city-part-1/ [https://perma.cc/EKM6-D5AQ] (indicating that

predictions of population growth provided an impetus for what became PlaNYC).

27. D

OCTOROFF, supra note 16, at 319.

28. N.Y.C.

ENERGY POLICY TASK FORCE, NEW YORK CITY ENERGY POLICY: AN

ELECTRICITY RESOURCES ROADMAP 9 (Jan. 2004),

http://www.nyc.gov/html/om/pdf/energy_task_force.pdf [https://perma.cc/2SYK-V4DC].

29. Id.

2023] LOCAL ACTION, GLOBAL PROBLEM 1195

record highs and concern about the US dependence on foreign energy

sources pervaded the halls of Congress.

In the words of Laurie Kerr, who

was a chief architect of New York City’s first green buildings legislation,

between the looming energy crisis, competition with London, and concerns

about the impact of population growth on the city’s infrastructure, the idea

that New York City would develop a sustainability plan was “almost

overdetermined.”

The sustainability plan that materialized, named PlaNYC, contained 127-

action items which were grouped in six different areas.

Climate change,

including a reduction in GHG emissions, was one of these six areas.

Yet

it would be a mistake to view the city’s climate initiatives as independent

from its broader concerns about promoting growth. Bloomberg

administration officials themselves made no secret of the fact that their plans

to reduce energy use were motivated in large part by a desire to safeguard

the city’s energy supply. Testifying at a City Council hearing regarding a

proposed bill that would arguably become the Bloomberg Administration’s

signature climate law, Rohit Aggarwala, who headed the Mayor’s Office of

Long-Term Planning and Sustainability, explained the rationale behind the

proposal as follows:

When we think about energy infrastructure, it is critical and one of our key

findings from PlaNYC that we cannot think about energy infrastructure

without treating our buildings as part of that infrastructure, because you

can’t just think about the power plants and the transmission lines, you also

have to think about demand, whenever you think about energy challenges.

And as we experience our peak load days this summer, and we’ve already

done a couple of weeks ago, a day that had the fourth highest electricity

demand in our history, and that was even before it was officially summer.

PlaNYC itself proffered a similar economic rationale for its climate actions.

“These efforts will require substantial investments—but each will provide an

even greater return,”

the plan’s authors noted.

None of this is to suggest that New York City officials were not genuinely

motivated to reduce climate change. They were. As a coastal city, NYC

officials were deeply concerned about the risk of flooding that climate

30. See generally CONG. RSCH. SERV., RL3302, Energy Policy Act of 2005: Summary and

Analysis of the Enacted Provisions, (Mar. 8, 2006).

31. See C

ITY OF N.Y.C., PLANYC: A GREENER, GREATER NEW YORK 142 (2007)

[hereinafter PLANYC 2007] (grouping the action items into six areas: land, water,

transportation, energy, air, and climate change).

32. Id.

33. Testimony of Rohit T. Aggarwala, Dir. of Long-Term Planning and Sustainability,

Transcript of the Minutes of the Committee on Environmental Protection, New York City

Council 13 (June 27, 2008) (Transcribed by Cindy Millelot, CSR).

34. P

LANYC 2007, supra note 31, at 133.

1196 FORDHAM URB. L.J. [Vol. L

change would bring.

But the actions that the City proposed to tackle

climate change also directly aligned with its economic priorities.

Notably, local governments (like some higher levels of government) have

proffered other economic arguments for limiting climate change apart from

reducing energy costs. In particular, some local governments have presented

decarbonization as an industrial strategy that will build new industries within

their borders and create well-paying middle-class jobs. In 2007, Los

Angeles’ first climate action plan referred to the potential for city leadership

in reducing GHG emissions to pay economic dividends in the form of new

export industries, noting that adopting a GHG reduction policy would lead

the city to “invest in cutting edge green technology that can be marketed to

the global community.”

Viewed in this light, even very small jurisdictions’

efforts to reduce GHG emissions could be economically rational. But the

ecological payoff is less certain than it is in the context of traditional

environmental problems and the economic incentives are more tenuous.

There is some evidence that New York City officials have also envisioned

climate action as promoting local industrial development. In 2009, for

example, Aggarwala touted that the four bills in the Greater Greener

Buildings package that Mayor Bloomberg urged the council to adopt would

create “19,000 construction-related jobs over . . . .12 years.”

Similarly, in

2018, while testifying in support of a bill to decarbonize large buildings in

New York City, Mark Chambers, then the director of the mayor’s office of

sustainability, argued that “[c]limate change is an enormous challenge but if

addressed meaningfully, it’s also an opportunity to provide our residents

with lifelong skills they can use for careers that put them solidly in the middle

class.”

Chambers went on to state that the bill in question would “create

approximately 14,700 good paying, green jobs like retrofitting windows and

building envelopes, installing green energy, and improving the efficiency of

our heating and hot water systems.”

The predictions of job increases are

35. According to PlaNYC, “With almost 600 miles of coastline and over half a million

New Yorkers living within our current flood plain, this change is especially dangerous to New

York . . . .According to one estimate, a Category 2 hurricane would inflict more damage on

New York than any other American city except Miami.” Id. at 8.

36. CITY OF LOS ANGELES, GREEN LA: AN ACTION PLAN TO LEAD THE NATION IN FIGHTING

GLOBAL WARMING 3 (May 2007); see also HUGHES, supra note 6, at 25 (also quoting the 2007

Los Angeles climate action plan). Officials in California, which has been a leader among

states in decarbonization efforts, have also suggested that addressing climate change would

produce economic benefits. See Stewart, supra note 1, at 691.

37. Testimony of Rohit T. Aggarwala, Dir. of Long-Term Planning and Sustainability,

Written Testimony before the Committee on Environmental Protection, New York City

Council 5 (June 26, 2009).

38. Testimony of Mark Chambers, Written Testimony before the Committee on

Environmental Protection, New York City Council (Dec. 4, 2018).

39. Id.

2023] LOCAL ACTION, GLOBAL PROBLEM 1197

hard to assess because economic modeling of job impacts from government

policies is subject to many uncertainties;

what is interesting is the effort to

portray reducing GHG emissions as an economic and a social opportunity,

which is consistent with local government’s traditional focus on promoting

economic development.

II. P

ROTEST POLITICS

Some of New York City’s strongest actions to mitigate climate change do

not fit neatly within the green growth paradigm. These commitments appear

primarily geared towards fulfilling political goals by protesting federal

inaction on climate rather than promoting economic development. Looking

back at the last two decades of climate action in U.S. cities, there appear to

be two distinct pathways through which politics motivate change: a top-

down pathway, where elected leaders take it upon themselves to call for

action, and a bottom-up pathway through which grassroots groups pressure

leaders to act. As we will see, the top-down pathway seems to have led many

mayors to set lofty GHG reduction targets and start gathering the data needed

to measure progress towards those targets. But if New York’s experience is

any guide, it is only when the desire of local leaders to protest federal foot-

dragging combines with powerful grassroots pressure that cities will go

further and impose hard-hitting mandates on industry.

New York City has a vibrant community of climate activists in the 21st

century.

The Natural Resources Defense Council (NRDC) and the

40. Economic modeling regarding the impacts of government policy is generally subject

to uncertainty. See, e.g., Neil R. Ericsson, Forecast Uncertainty in Economic Modeling 1 BD.

GOVERNORS FED. RSRV. SYS., INT’L FIN. DISCUSSION PAPERS NO. 697 (2001),

https://www.federalreserve.gov/pubs/ifdp/2001/697/ifdp697.pdf [https://perma.cc/G9NY-

WK5N] (“Economic forecasts feature prominently in . . . .government policy

analysis . . . .Economic forecasts typically differ from the realized outcomes, with

discrepancies between forecasts and outcomes reflecting forecast uncertainty.”).

Notwithstanding the uncertainties, there are efforts to estimate the employment opportunities

created through decarbonization policies. See, e.g., UCLA Luskin Center for Innovation,

Workforce Impacts of Decarbonization, https://innovation.luskin.ucla.edu/environmental-

equity/workforce-impacts-of-decarbonization/ [https://perma.cc/J4YC-MBH5] (last visited

Aug. 10, 2023); H

UGHES, supra note 6, at 23 (referring to a study of the jobs created from

expenditures on energy efficiency in Los Angeles).

41. The environmental groups testifying at city council environmental protection

committee hearings on proposed climate legislation provide an indication of the groups

interested in local climate policy. The following 12 environmental groups testified at the

December 4, 2018 committee hearing on Local Law 97 (capping greenhouse gas emissions

from large buildings): New York Communities for Change; Sierra Club of New York City;

New York League of Conservation Voters; Alliance for a Greater New York; Environmental

Defense Fund; Natural Resources Defense Council; 350 Brooklyn; 350 New York City; WE

ACT for Environmental Justice; NYC Environmental Justice Alliance; NYC Climate Action

Alliance; and Jewish Climate Action Network. See generally Transcript of the Minutes of the

Committee on Environmental Protection, New York City Council (Dec. 4, 2018). The

1198 FORDHAM URB. L.J. [Vol. L

Environmental Defense Fund (EDF), two established public interest

environmental groups that were founded mainly by graduates of elite law

schools in the late 1960s and early 1970s, have their national headquarters

in Manhattan, close to the financial and real estate elites that historically

helped to fund them.

These groups work mainly on climate policy at the

federal and state levels. But they also have programs that address climate

policy in the New York City area, especially NRDC.

The New York

League of Conservation Voters is also active on some local climate policy

issues in New York City.

The city also has an array of environmental justice groups centered outside

of lower Manhattan. WE ACT for Environmental Justice was founded in

West Harlem in 1988 to address the harms to the area from a sewage

following 15 environmental groups testified at the November 17, 2021 hearing on Local Law

154 (banning natural gas connections in new construction): Natural Resources Defense

Council; WE ACT for Environmental Justice; New York Communities for Change; New

York Public Interest Research Group; Food and Water Watch; United for Action; Sane Energy

Project; Earthjustice; Stand.earth; WE ACT for Environmental Justice; El Puente; 350 NYC;

Jewish Climate Action Network NYC; Alliance for a Green Economy; 350 Brooklyn. See

Transcript of the Minutes of the Committee on Environmental Protection, New York City

Council (Nov. 17, 2021).

The presence of a large number of environmental interest groups in New York City is

broadly consistent with the recent findings of political scientist Sarah Anzia on interest group

activity at the local level. Anzia’s surveys of city officials found that “environmental groups

average between ‘slightly’ and ‘somewhat’ active.” S

ARAH ANZIA, LOCAL INTERESTS:

POLITICS, POLICY, AND THE INTEREST GROUPS IN US CITY GOVERNMENTS 94 (2022). However,

Anzia’s empirical findings that interest groups in general (not specifically environmental

groups) are more active in larger cities imply, by extension, that environmental groups should

be more active in New York than in other cities. She concludes that “[l]arger cities and cities

that make policy on a larger number of issues have significantly more interest group activity,

as do cities with more Democratic and liberal residents.” Id.

at 73; see also id. at 106

(“Democratic presidential vote is also positively associated with greater activity by. . . .

environmental groups. . . .It may be that some groups, such as environmental groups, are more

active in Democratic places because Democrats tend to have more pro-environment policy

views.”).

42. P

AUL SABIN, PUBLIC CITIZENS: THE ATTACK ON BIG GOVERNMENT AND THE REMAKING

AMERICAN LIBERALISM 127 (2021) (“In the fall of 1977, the Environmental Defense Fund

established its new national headquarters in New York City, close to crucial financial

supporters. . . .While it maintained a large Washington, DC, office, the Natural Resources

Defense Council also kept its national headquarters in Manhattan, near to major supporters in

the finance and real estate industries.”).

43. See, e.g., supra note 41 and accompanying text (listing the Natural Resources Defense

Council as among the environmental groups testifying at New York City council hearings on

local climate bills).

44. See Issues, N.Y. League of Conservation Voters, https://nylcv.org/issues/

[https://perma.cc/C3UW-6UK8] (last visited Aug. 10, 2023); see generally N.Y. League of

Conservation Voters & N.Y. League of Conservation Voters Educ. Fund, New York City

Policy Agenda 2023 (2023), https://nylcv.org/wp-

content/uploads/NYLCV_2023_NYC_Policy_Agenda_WEB.pdf [https://perma.cc/3LLF-

SZRZ] (last visited Aug. 10, 2023).

2023] LOCAL ACTION, GLOBAL PROBLEM 1199

treatment plant that the city built to comply with the Clean Water Act.

The

New York City Environmental Justice Alliance was established in 1991 by

people who had been involved in campaigns against waste and sludge

treatment facilities and other noxious facilities in Brooklyn and other parts

of the city.

UPROSE is “a Puerto Rican-originated, Latino-based, multi-

ethnic community organization in Sunset Park[,]” Brooklyn established over

fifty years ago.

Importantly, in the 2010s, multiracial community and labor organizations

in New York City, such as the Alliance for a Greater New York (ALIGN)

and New York Communities for Change,

also began working on climate

policy at the local level, often in coalitions with environmental justice groups

in the City.

These community, labor, and environmental justice

organizations link limiting climate change by reducing GHG emissions with

promoting economic, racial, and social justice by creating employment for

low-income workers in industries spawned by the need to decarbonize the

economy.

In particular, these organizations have sought to reduce GHG

emissions from buildings, the city’s largest source of emissions, and

potentially create jobs for low-income workers in upgrading buildings.

45. See generally Our Story, WE ACT FOR ENVT’L JUST.,

https://www.weact.org/whoweare/ourstory/ [https://perma.cc/7PBZ-9N4R] (last visited July

30, 2023).

46. See 30th Anniversary Gala, N.Y.C. ENVT’L JUST. ALLIANCE, https://nyc-eja.org/30th-

anniversary-gala/ [https://perma.cc/48P4-5379] (last visited Aug. 10, 2023); see also JULIE

SZE, NOXIOUS NEW YORK: THE RACIAL POLITICS OF URBAN HEALTH AND ENVIRONMENTAL

JUSTICE 115 (2006).

47. Kenneth Gould & Tammy Lewis, Green Gentrification: Urban Sustainability and the

Struggle for Environmental Justice 135 (2017).

48. See About, ALIGN, https://alignny.org/about/ [https://perma.cc/422X-VJBU] (last

visited July 30, 2023); see also History, N.Y.

CMTY’S. FOR CHANGE,

https://www.nycommunities.org/about [https://perma.cc/UD7E-LYCC] (last visited July 30,

2023).

49. See, e.g., Climate Works for All, ALIGN, https://alignny.org/campaign/climate-

works-for-all/ [https://perma.cc/86N2-7N59] (last visited Sept. 8, 2023) (“After the 2014

People’s Climate March, community groups, environmental justice organizations, labor

unions and other allied advocates joined together to form the Climate Works For All

coalition.”).

50. See, e.g., id.; The Climate, Jobs & Justice Package: The Pro-worker Climate Plan,

ALIGN (Mar. 2, 2023), https://alignny.org/resource/the-climate-jobs-justice-package-the-

pro-worker-climate-plan/ [https://perma.cc/V4NB-U5A6]; Campaigns: Green Jobs, N.Y.

CMTY’S. FOR CHANGE, https://www.nycommunities.org/green-jobs [https://perma.cc/F6DK-

WUAQ] (last visited Aug. 10, 2023).

51. In uniting environmental, social, racial, and economic objectives, the coalitions reflect

longstanding concerns of environmental justice organizations in the United States, which have

been broader than the concerns of the established, mainstream environmental groups. See

Julian Agyeman et al., Trends and Directions in Environmental Justice: From Inequity to

Everyday Life, Community, and Just Sustainabilities, 41 A

NN. REV. ENV’T & RES. 321, 325–

26 (2016); see also Dorceta Taylor, The Rise of the Environmental Justice Paradigm:

1200 FORDHAM URB. L.J. [Vol. L

To understand how and why community-based coalitions in particular

mobilized for new local climate laws in the 2010s, and why insiders within

city government were motivated to supply them in the 21st century, it is

useful to step back and consider the evolution of climate politics at the

national level.

In the last decade of the 20th century, when climate change emerged as

the defining environmental concern in the United States, there was broad

bipartisan support at the federal level for reducing GHG emissions. In fact,

it was a Republican President, George H.W. Bush, who negotiated and

signed the landmark United Nations Framework Convention on Climate

Change (UNFCCC) in 1992 under which countries broadly agreed to

stabilize the climate (although the signatories did not commit to any specific

obligations to reduce their emissions).

The Senate ratified the treaty later

that year by a simple voice vote without any recorded objections.

Climate politics became a partisan issue after the 1990s.

In his very first

State of the Union Address in February of 1993, when the Democrats

controlled the House and the Senate, President Bill Clinton announced

support for a new “broad-based energy tax”

that came to be known as the

“BTU Tax.” The tax was intended to raise money to help close the deficit

and reduce carbon emissions, among other goals.

The tax passed the House

although not a single Republican voted for it; the Senate never voted on the

tax.

Faced with mounting opposition from manufacturing, energy, and

Injustice Framing and the Social Construction of Environmental Discourses, 43 AM. BEHAV.

SCIENTIST 508, 509–10 (2000).

52. Public Papers: Statement on Signing the Instrument of Ratification for the United

Nations Framework Convention on Climate Change,

GEORGE H.W. BUSH PRESIDENTIAL LIBR.

& MUSEUM (Oct. 13, 1992), https://bush41library.tamu.edu/archives/public-

papers/4953?fbclid=IwAR3vp0zzELT8zzmJL-RYqw6-qDY-h-c3o5D5Oo-

vjpJ7M8Vkd9HfExUw6NE [https://perma.cc/PW5S-JWHV].

53. See United Nations, Framework Convention on Climate Change, S.

TREATY DOC. NO.

102–38, at 1 (Oct. 1, 1992); see also United Nations Framework Convention on Climate

Change, S. EXEC. REP. NO. 102–55 at 15 (1992).

54. See M

ATTO MILDENBERGER, CARBON CAPTURED: HOW BUSINESS AND LABOR

CONTROL CLIMATE POLITICS 123 (2020) (“From the 1990s forward, a partisan gradient in

climate policy preferences did exist: Democrats were more likely than Republicans to propose

and support costly climate reforms.”).

55. Dawn Erlandson, The BTU Tax Experience: What Happened and Why It Happened,

12 P

ACE ENV’T L. REV. 173, 173 (1994); see also David Rosenbaum, Clinton Backs off Plan

for New Tax on Heat in Fuel, N.Y. TIMES (June 9, 1993),

https://www.nytimes.com/1993/06/09/us/clinton-backs-off-plan-for-new-tax-on-heat-in-

fuels.html [https://perma.cc/JA5M-HJJS].

56. See

MILDENBERGER supra note 54, at 107–13.

57. See Roll Call 199, H.R. 2264, 103rd Cong. (1993) (final vote results),

https://clerk.house.gov/Votes/1993199 [https://perma.cc/QZS2-MGHG] (last visited Aug.

11, 2023); see also M

ILDENBERGER, supra note 54, at 112–13; Erlandson, supra note 55, at

174; Robinson Meyer, History’s Greatest Obstacle to Climate Progress Has Finally Fallen,

2023] LOCAL ACTION, GLOBAL PROBLEM 1201

agricultural sectors — as well as from the senators representing states where

these sectors predominate — the Democratic leadership came to realize that

the bill was doomed to fail.

The episode was politically costly for House

Democrats; Republicans chastised Democratic opponents who had voted in

favor of the “Big Tax on U” in the 1994 midterm elections in which

Democrats lost 54 seats in the House.

Republican opposition to climate policy solidified in the years that

followed.

Shortly after taking office in 2001, President George W. Bush

declared that the United States would not implement the Kyoto Protocol to

the UNFCCC, which Vice President Gore had helped to negotiate, and which

established binding GHG emissions obligations for developed countries.

When President Barack Obama took office in 2009, the Democrats

controlled both the House and Senate as they had at the beginning of

Clinton’s presidency, and Democrats sought to advance cap and trade

legislation. Although a cap and trade bill to regulate GHG emissions passed

the House in Obama’s first term, the Senate never took up cap and trade

THE ATLANTIC (Aug. 7, 2022, 5:19 PM),

https://www.theatlantic.com/science/archive/2022/08/senate-climate-implation-reduction-

bill-passed/671073 [https://perma.cc/L6DU-A4V9] (“The House of Representatives passed

the [BTU tax] proposal, but the Senate never took it up.”).

58. See David S. Hilzenrath, Miscalculations, Lobby Effort Doomed BTU Tax Plan,

WASH. POST (June 11, 1993),

https://www.washingtonpost.com/archive/business/1993/06/11/miscalculations-lobby-

effort-doomed-btu-tax-plan/d756dac3-b2d0-46a4-8693-79f6f8f881d2/

[https://perma.cc/C9V2-48PK].

59. See Bruce Thompson, House Democrats Should Be Careful They Don’t Get BTU’d,

OLL CALL (Sept. 20, 2021, 10:00 AM), https://rollcall.com/2021/09/20/house-democrats-

should-be-careful-they-dont-get-btud/ [https://perma.cc/Z8JA-C56B].

60. In fact, by the time George W. Bush was running for President in the summer of 2000,

the Republican National Committee’s platform pledged to “increase domestic supplies of

coal, oil, and natural gas” and included only passing reference to the benefits of renewable

energy tax credits and energy efficiency. 2000 Republican Party Platform,

AM. PRESIDENCY

PROJ. (July 31, 2000), https://www.presidency.ucsb.edu/documents/2000-republican-party-

platform [https://perma.cc/FM6P-5ZSB]. By 2016, the Republican Party had jettisoned even

gestures towards climate policy. Instead, the 2016 platform declared that government policies

that favored renewable energy represented “the triumph of extremism over common sense,”

and demanded an “immediate halt to U.S. funding for the U.N.’s Framework Convention on

Climate Change.” 2016 Republican Party Platform, A

M. PRESIDENCY PROJ. (July 18, 2016),

https://www.presidency.ucsb.edu/documents/2016-republican-party-platform

[https://perma.cc/67WL-7PHT]. The Democratic Party’s platform from the same year called

climate change an “urgent threat” and promised “bold steps to slash carbon pollution.” The

contrast could hardly be clearer. 2016 Democratic Party Platform, A

M. PRESIDENCY PROJ.

(July 21, 2016), https://www.presidency.ucsb.edu/documents/2016-democratic-party-

platform [https://perma.cc/AE9A-UDE4].

61. See Julian Borger, Bush Kills Global Warming Treaty, THE GUARDIAN (Mar. 29, 2001,

3:28 PM), http://www.theguardian.com/environment/2001/mar/29/globalwarming.usnews

[https://perma.cc/5C68-BB84].

1202 FORDHAM URB. L.J. [Vol. L

legislation.

Once again, federal climate legislation was doomed by the

Senate, where the rural areas in which Republicans tend to cluster,

are over-

represented compared to their share of the national population.

Obama

never made another serious attempt to get a climate bill through Congress

during his remaining years in office. Instead, he used the regulatory

authority of agencies, such as the Environmental Protection Agency under

the Clean Air Act, to reduce GHG emissions. Although Obama succeeded

in promulgating regulations to reduce GHG emissions from new motor

vehicles, the Supreme Court blocked his effort to regulate power plant

emissions under the Clean Power Plan.

Trump Administration regulatory

rollbacks

and Supreme Court decisions

made the limits of the

administrative approach painfully clear.

62. See Maxine Joselow, Why the Inflation Reduction Act Passed the Senate but Cap-and-

Trade Didn’t, WASH. POST (Aug. 10, 2022, 8:10 AM),

https://www.washingtonpost.com/politics/2022/08/10/why-inflation-reduction-act-passed-

senate-cap-and-trade-didnt/ [https://perma.cc/G7E2-WZ7Z].

63. See, e.g., Jacob Brown & Ryan D. Enos, The Measurement of Partisan Sorting for

180 Million Voters, 5 NATURE HUM. BEHAV. 998 (2021). A recent study of partisan sorting

between 1856 and 2016 found that, “geographic sorting within states is at a historic high.”

Ethan Kaplan et al., Partisan Spatial Sorting in the United States: A Theoretical and

Empirical Overview, 211 J.

PUB. ECON. 1, 2 (2022). Democratic voters tend to cluster in urban

areas of their states, whereas Republicans dominate in rural areas. See Brown & Enos, supra,

at 998.

64. See Nate Silver, The Senate’s Rural Skew Makes It Very Hard for Democrats to Win

the Supreme Court, F

IVETHIRTYEIGHT (Sept. 20, 2020, 9:42 AM),

https://fivethirtyeight.com/features/the-senates-rural-skew-makes-it-very-hard-for-

democrats-to-win-the-supreme-court/ [https://perma.cc/FRR9-4CSG] (“The Senate is an

enormous problem for Democrats given the current political coalitions, in which Democrats

are dominant in cities while Republicans triumph in rural areas.”); see also F

RANCES E. LEE

& BRUCE I. OPPENHEIMER, SIZING UP THE SENATE: THE UNEQUAL CONSEQUENCES OF EQUAL

REPRESENTATION 10 (1999).

65. See West Virginia v. EPA, 577 U.S. 1126, 1126 (2016) (granting stay of the

Environmental Protection Agency’s Carbon Pollution Emission Guidelines); see also West

Virginia v. EPA, 142 S. Ct. 2587, 2604, 2616 (2022) (holding that the Environmental

Protection Agency could not regulate carbon emissions without a clear delegation from

Congress and discussing the 2016 stay that originally prevented the rule from “taking effect”);

Robinson Meyer, The Supreme Court’s Devastating Decision on Climate,

THE ATLANTIC

(Feb. 10, 2016), https://www.theatlantic.com/technology/archive/2016/02/the-supreme-

courts-devastating-decision-on-climate/462108/ [https://perma.cc/5CPC-YRNN].

66. See Amanda Reilly & Kevin Bogardus, Seven Years Later, Failed Waxman-Markey

Bill Still Makes Waves, E&E

DAILY (June 27, 2016, 7:00 AM),

https://www.eenews.net/articles/7-years-later-failed-waxman-markey-bill-still-makes-

waves/ [https://perma.cc/9P7F-X8HW]; see generally Nadja Popovich et al., The Trump

Administration Rolled Back More Than 100 Environmental Rules. Here’s the Full List, N.Y.

TIMES (Jan. 20, 2021), https://www.nytimes.com/interactive/2020/climate/trump-

environment-rollbacks-list.html [https://perma.cc/FC3D-9PKD].

67. See West Virginia, 577 U.S. at 1126; see also West Virginia, 142 S. Ct. at 2616.

2023] LOCAL ACTION, GLOBAL PROBLEM 1203

In August of 2022, 30 years after George H.W. Bush signed the UNFCCC,

Congress finally passed the first significant federal climate bill, the Inflation

Reduction Act (IRA), a spending bill that establishes a broad suite of tax

credits, grants, and other incentives for low-carbon technologies. The

legislation, which includes “$369 billion in climate and energy related

funding,”

was a stunning victory for the Democrats, with President Biden

having succeeded in getting the Congressional legislation on climate that had

eluded Clinton and Obama. Even so, the vote tally for the IRA underscores

the ongoing partisan divide over climate: not a single Republican senator

voted for the IRA, which was passed through a budget reconciliation process

that allowed Senate Democrats to bypass the filibuster.

Moreover, because

it was passed through the reconciliation process, the IRA does not include

any regulatory caps on GHG emissions; it seeks to incentivize, rather than to

mandate, GHG emission reductions.

As of 2023, there is little evidence that the partisan divide over climate

change is abating. In May of 2022, the news site FiveThirtyEight published

a poll of Americans’ political priorities.

The pollsters had asked the

respondents what issue or issues were most important to them.

Looking at

the sample as a whole, 16% of respondents stated that climate change was

one of the most important problems facing the country.

But there was a

huge difference between the percentage of Democrat and Republican

respondents on the question: 30% of Democrats stated that climate change

was among the most important issues compared to only 6% of Republicans.

Only two other issues — election fraud and immigration — showed such a

large partisan divide.

68. Brady Dennis, As Congress Funds High-Tech Climate Solutions, It Also Bets on a

Low-Tech One: Nature, WASH. POST (Aug. 14, 2022, 7:00 AM),

https://www.washingtonpost.com/climate-solutions/2022/08/14/nature-climate-solutions-

inflation-reduction-act/ [https://perma.cc/CS7E-VC4W].

69. See Joselow, supra note 62.

70. See Kent Hughes, Wilson Center Expert Analysis of the Inflation Reduction Act: The

IRA and Competitiveness W

ILSON CTR. (Aug. 15, 2022),

https://www.wilsoncenter.org/article/wilson-center-expert-analysis-inflation-reduction-act

[https://perma.cc/CGD7-Q37Z]; see also Joselow, supra note 62.

71. See Geoffrey Skelley & Holly Fuong, We Asked 2,000 Americans about Their Biggest

Concern, FIVETHIRTYEIGHT (May 17, 2022, 6:00 AM),

https://fivethirtyeight.com/features/we-asked-2000-americans-about-their-biggest-concern-

the-resounding-answer-inflation/ [https://perma.cc/MW8C-49WC].

72. See id.

73. See id.

74. See id.

75. See id. Note that some commentators dispute that there is such a stark partisan divide

over beliefs about climate change. See L

EISEROWITZ ET AL., POLITICS & GLOBAL WARMING,

APRIL 2022, 14–15 (Yale Univ. & George Mason Univ., eds. 2022); Gregg Sparkman et al.,

1204 FORDHAM URB. L.J. [Vol. L

Scholars and advocates should view U.S. cities’ efforts to tackle climate

change with the above history of partisanship and federal policy stagnation

in mind. As will be described in the following section, many of these cities’

biggest climate policy announcements were preceded by federal

backtracking on climate change, in particular President Bush’s withdrawal

of the U.S. from the Kyoto Protocol

and President Trump’s withdrawal of

the U.S. from the Paris Agreement.

Even some of the most zealous

advocates for local leadership on climate change have been explicit about

the fact that they have urged local governments to engage in climate policy

design more out of necessity than choice. In the words of the political

scientist Benjamin Barber, who founded the Global Parliament of Mayors,

cities have been forced to take on the climate crisis because “national leaders

have defaulted in dealing with the big issues of an interdependent world. . . .

[including] climate change.”

With time, Barber hoped, cities would set an

example for their “laggard mother states” that would spur them into action.

Interviews with current and former New York City government officials

buttress Barber’s sense that federal foot-dragging contributed to local action.

When asked what motivated New York City to take on GHG emissions, one

long-time environmental policy staffer echoed the sentiments quite

precisely. “The federal government has been the world’s worst laggard,” the

staffer said. “Since Kyoto, it’s been China and us. The leadership has to

come from somewhere.” Pete Sikora, a veteran grassroots climate change

organizer for New York Communities for Change, was even blunter in his

assessment: “Trump being in the White House helped us because it removed

Americans Experience a False Social Reality by Underestimating Popular Climate Policy

Support by Nearly Half, 13 NATURE COMMC’NS 4–5 (2022).

76. See supra note 61 and accompanying text.

77. See Press Release, White House, President Trump Announces United States

Withdrawal from the Paris Climate Accord (June 1, 2017),

https://trumpwhitehouse.archives.gov/articles/president-trump-announces-u-s-withdrawal-

paris-climate-accord/ [https://perma.cc/3BRQ-Q699].

78. B

ENJAMIN R. BARBER, COOL CITIES: URBAN SOVEREIGNTY AND THE FIX FOR GLOBAL

WARMING 10 (2017). Barber addressed this criticism to nation states in general, not just the

United States. Id. But he also makes clear throughout the book that the United States, which

at the time that he was writing had just elected Donald Trump, had been deeply irresponsible

with respect to climate change policy. Id. Note that a decade earlier, in the waning days of the

George W. Bush administration, the political scientist Miranda Schreurs offered a similar

explanation for American cities’ leadership on climate. See Miranda A. Schreurs, From the

Bottom Up: Local and Subnational Climate Change Politics, 17 J.

ENV’T & DEV. 343, 350

(2008). In her words, American cities had taken up the cause of climate change in response

to the federal government’s “failure. . . .to play a strong leadership role on climate change

politics.” Id.

79. B

ARBER, supra note 78, at 71.

2023] LOCAL ACTION, GLOBAL PROBLEM 1205

the idea that the Feds would come in and save us,”

according to Sikora.

“Trump also got people really revved up,” he added. If advocates could

persuade New York City to act, they might be able to scale up to the state

level, where Republicans have often had a stronger toehold on power than in

the city.

Climate activists have scored victories at the state level in recent

years, most notably in 2019 when the state legislated an aggressive plan to

decarbonize by the mid-twentieth century, shortly after the New York city

council passed its bold law to decarbonize buildings.

Local actors were not naive to the fact that their individual efforts could

have only a limited impact on global emissions and did not cast local action

as a perfect substitute for federal initiatives. But they sought to be first

movers in the fight to reduce emissions and inspire other governments to

follow suit. New York City's first climate focused plan made this theory of

change quite explicit. "No city can change these forces, but collective effort

can," the report explained.

Displaying the bravado for which New Yorkers

are famous, the report went on to declare that “New York has always

pioneered answers to some of the most pressing problems of the modern age.

It is incumbent on us to do so again and rise to the definitive challenge of the

century.”

In an interview in 2022, Cas Holloway, who led the New

York City Department of Environmental Protection under Bloomberg,

echoed the sentiment: “New York City has always seen itself as a model for

the urban world,” Holloway explained. “We always thought that

ambitiously, hoping to inspire others.”

There is evidence that other marquee cities bought into the same theory of

change as New York City (i.e., that they could impact the trajectory of global

climate change by inspiring others to emulate their actions). For instance,

Chicago's first Climate Action Plan, published in 2008, stated that the

initiatives “already under way in Chicago and the strategies and goals

outlined in this plan can inspire similar initiatives in cities around the

80. Pete Sikora, Senior Advisor, N.Y. Cmtys. for Change, Remarks at a New York

University Class on “What Should Cities Do to Protect Against Climate Change” (Oct. 12,

2022).

81. See Katrina M. Wyman & Danielle Spiegel-Feld, The Urban Environmental

Renaissance, 108 C

ALIF. L. REV. 305, 332–33 (2020) (“[P]rior to the November 2018

elections, 92 percent of the State senators representing New York City were members of the

Democratic Party, while only 49 percent of senators throughout the State were Democrats,

and Republicans had controlled the State Senate virtually without interruption for decades.”).

Republicans’ relative strength at the state level conforms to national trends in which

Democrats dominate urban areas and Republicans rural areas.

82. N.Y. Climate Leadership and Community Protection Act (CLCPA), 2019 N.Y. Sess.

Laws 3, 8 (McKinney).

83. P

LANYC 2007, supra note 31, at 133.

84. Id. at 9.

1206 FORDHAM URB. L.J. [Vol. L

world."

Dade County, which includes Miami, articulated a similar

rationale in 1993 when it became one of the first local governments in the

United States to adopt a climate action plan after Hurricane Andrew; "[b]y

using this plan as a guide to specific actions across several important policy

areas, Metro-Dade can provide important leadership for its residents and

other local governments,”

the report declared. In essence, these local

leaders hoped to inspire a wave of municipal action that in the aggregate

could make a real difference.

III. E

ASING IN

Consistent with the evolving nature of cities’ motivations for tackling

climate change, major American cities, including New York, steadily

intensified their efforts in the early 21st century to reduce GHG emissions as

the federal foot-dragging on climate intensified.

For more than a decade after the United States signed the UNFCCC in

1992, cities’ climate policy focused primarily on declaring their intent to help

facilitate global efforts to reduce emissions and setting targets for doing so.

In other words, there was a lot of talk during those years, but not so much

action. During the Obama Administration, after Congress failed to pass cap

and trade legislation, local efforts became more action-oriented. Rather than

merely establishing targets, as they had done previously, cities started to take

preparatory steps to implement these targets by producing inventories of

local GHG emissions that highlighted the main sources of emissions within

local borders — buildings and transportation — and educating their

consumers about opportunities for reducing emissions. Still, most of these

regulations took a light-touch or voluntary approach and there were no

mandates that emissions decline. After President Trump took office, at

which point the executive branch was openly hostile to the idea of reducing

GHG emissions, some cities finally started to move beyond target setting and

data collection to actually mandate reductions. In short, if we look at the arc

of cities’ climate activities over the past three decades, we can discern three

main periods that roughly correspond to the dates listed below:

● 1992–2008: Cities declare their intention to participate in climate

policy development and set targets for reducing citywide emissions;

● 2009–2018: Cities begin collecting the data necessary to evaluate

progress towards emissions targets and educating individuals and

businesses about their emissions;

85. City of Chicago, Chicago Climate Action Plan 5 (2008).

86. U

RBAN CO

REDUCTION PROJECT STEERING COMMITTEE, A LONG TERM CO

REDUCTION PLAN FOR METROPOLITAN DADE COUNTY 44 (1993).

2023] LOCAL ACTION, GLOBAL PROBLEM 1207

● 2019–ongoing as of 2023: Cities begin to adopt regulations that

mandate emissions reductions.

We review how each of these different phases unfolded in the following

sections.

A. Declarations and Targets

Many observers identify the 1992 United Nations Conference on

Environment and Development held in Rio de Janeiro as the starting point

for cities’ engagement with climate policy development.

At the Rio

conference, 178 nations adopted Agenda 21, “a nonbinding international

agreement” which established a range of developmental and environmental

objectives for the international community to pursue in the 21st century.

Chapter 28 of Agenda 21 called upon local governments to assist the

international community in implementing its environmental goals.

The

same chapter also called upon international organizations to help mobilize

support for local efforts to advance the sustainable development agenda.

Pursuant to this charge, the United Nations established the Urban CO

Reduction Program, which helped cities develop “strategies” for measuring

and reducing greenhouse emissions.

Yet, over the following decade, “only

a small number of ‘pioneer cities’ in the United States were actively engaged

in climate protection.”

Of the 20 most populous cities in the United States

as of 2020–2021,

only one city (Philadelphia) established a GHG reduction

87. See, e.g., Krause et al., supra note 1, at 180. Note that a small number of cities,

including Toronto, established climate action targets after the 1988 international conference,

“On the Changing Atmosphere.” See

HARRIET BULKELEY, CITIES AND CLIMATE CHANGE 74

(2013).

88. U.N. Conference on Environment and Development, U.N. Sustainable Development

Agenda 21, ch. 1.3, U.N. Doc. A/CONF.151/26 (June 14, 1992).

89. Id. at ch 28.3. Among other charges, Chapter 28 calls upon local governments to

“enter into a dialogue with … citizens, local organizations and private enterprises and adopt

a “local Agenda 21.” Id. It further specifies that “[l]ocal authority programmes, policies, laws

and regulations to achieve Agenda 21 objectives would be assessed and modified, based on

local programmes adopted.” Id.

90. Id. at ch. 28.4.

91. See Krause et al., supra note 1, at 180 (The Urban CO

Reduction Program was “a

United Nations-led effort that worked with a small number of cities to develop comprehensive

GHG mitigation strategies and measurements.”).

92. Id.

93. Based on data from the U.S. Census defining the most populated cities and towns in

the United States for 2020–2021. See Annual Estimates of the Resident Population for

Incorporated Places of 50,000 or More, Ranked by July 1, 2022 Population: April 1, 2020 to

July 1, 2022, U.S.

CENSUS BUREAU, https://www.census.gov/data/tables/time-

series/demo/popest/2020s-total-cities-and-towns.html#tables [https://perma.cc/5BPF-7JU6]

(last visited July 30, 2023). The governmental units assessed in this date include “both

incorporated places (such as cities, boroughs, and villages) and minor civil divisions (such as

1208 FORDHAM URB. L.J. [Vol. L

target in the 1990s.

In short, urban climate policy was a niche (and largely

aspirational) enterprise in the United States during the 1990s. And even

among those cities that did put climate change on the agenda in this era, there

was more talk than concrete action.

President George W. Bush’s election heralded a new era of climate

politics that engaged a larger number of cities. In March of 2001, just a few

months after his inauguration, Bush announced that he had “no interest” in

implementing the Kyoto Protocol.

The announcement enraged green

groups. “Bush is turning his back. . . .[on] the world's scientists, who warn

this problem is more serious than we previously thought,” said a senior

scientist with the NRDC.

Progressive U.S. mayors were similarly

disappointed. Soon after Bush made his intentions clear, the mayor of Seattle

declared that the city would meet what would have been the U.S. emissions

target (a 7 percent reduction below 1990 levels by 2012) itself.

“We are

sending a message to the federal administration that it’s time to act, just like

the rest of the world,” Seattle’s mayor, Paul Schell, declared in 2001.

Other

cities also pledged to reduce their emissions after Bush took office. Nearly

towns and townships).” Methodology for the Subcounty Total Resident Population Estimates

(Vintage 2021): April 1, 2020 to July 1, 2021, U.S.

CENSUS BUREAU,

https://www2.census.gov/programs-surveys/popest/technical-

documentation/methodology/2020-2021/2021-subco-method.pdf [https://perma.cc/KD34-

8VPE] (last visited July 30, 2023). The 20 most populous cities are: Austin, Charlotte,

Chicago, Columbus, Dallas, Denver, Fort Worth, Houston, Indianapolis, Jacksonville, Los

Angeles, New York City, Oklahoma City, Philadelphia, Phoenix, San Antonio, San Diego,

San Francisco, San Jose, and Seattle. Id.

94. In 1999, Philadelphia committed to reduce GHG emissions to 10% below 1990 levels

by 2010 as part of its participation in the International Council for Local Environmental

Initiatives (ICLEI) “Cities for Climate Protection” campaign, which was the successor to the

Urban CO

Reduction Program. See CITY OF PHILADELPHIA, LOCAL ACTION PLAN FOR

CLIMATE CHANGE 3 (2007),

https://www.montcopa.org/DocumentCenter/View/3284/Philadelphia-Climate-Change-

Local-Action-Plan-2007?bidId [https://perma.cc/FT3K-ZXAV] (last visited July 30, 2023);

see also Krause et al., supra note 1, at 180.

95. See Julian Borger, Bush Kills Global Warming Treaty, T

HE GUARDIAN (Mar. 29,

2001), https://www.theguardian.com/environment/2001/mar/29/globalwarming.usnews

[https://perma.cc/V8UC-GAT2].

96. Douglas Jehl & Andrew C. Revkin, Bush, in Reversal, Won’t Seek Cut in Emissions

of Carbon Dioxide, N.Y.

TIMES (Mar. 14, 2001),

https://www.nytimes.com/2001/03/14/us/bush-in-reversal-won-t-seek-cut-in-emissions-of-

carbon-dioxide.html [https://perma.cc/2T4R-55PX].

97. Seattle to Achieve Kyoto Targets, E

DIE NEWSROOM (July 27, 2001),

https://www.edie.net/seattle-to-achieve-kyoto-targets/ [https://perma.cc/N2AS-JUGE]; see

also Schell Game, GRIST (July 24, 2001), https://grist.org/article/game2/

[https://perma.cc/F69V-58E6].

98. Id.

2023] LOCAL ACTION, GLOBAL PROBLEM 1209

half of the 20 most populous cities, including New York City,

adopted their

first GHG reduction targets between 2001, when Bush took office, and 2008,

Bush’s last full year in office.

100

Small cities joined the movement as well.

By the end of 2009, 1,017 U.S. cities had signed on to the Mayors’ Climate

Protection Agreement, which committed cities to achieving the GHG

reduction targets that would have applied to the United States if it had

implemented the Kyoto Protocol.

101

American cities also asserted their climate ambitions in other ways during

the Bush years. While the Bush administration retreated from the

international community, U.S. cities, including New York City, joined the

U.N.-affiliated International Council for Local Environmental Initiatives

(ICLEI) network in large numbers.

102

New York City and Los Angeles

99. See Annual Estimates of the Resident Population for Incorporated Places of 50,000 or

More, Ranked by July 1, 2022 Population: April 1, 2020 to July 1, 2022, supra note 96 and

accompanying text. Specifically, nine of the 20 most populous cities adopted their first

greenhouse gas reduction target between 2001 and 2008. Id.

100. See infra Fig. 1.

101. See, e.g., Jonathan Hiskes, America’s Greenest Mayor, Laid Off and Looking On,

RIST (Dec. 4, 2009), https://grist.org/article/2009-12-03-greenest-mayor-greg-nickels-

seattle/ [https://perma.cc/6XSG-JWJC]; Krause et al., supra note 1, at 180. The Mayor’s

Climate Protection Agreement was an initiative of the U.S. Conference of Mayors, which is

a non-profit organization that represents cities with 30,000 inhabitants or more. About the

Conference, U.S.

CONF. OF MAYORS, https://www.usmayors.org/the-conference/about/

[https://perma.cc/4BYX-XNCT] (last visited July 30, 2023). The Mayors’ Climate Protection

Agreement was unanimously passed by the U.S. Conference of Mayors on June 13, 2005. See

Press Release, Mayor Signs Climate Protection Agreement, B

LOOMINGTON, IND. (Apr. 21,

2006), https://bloomington.in.gov/news/2006/04/21/2438 [https://perma.cc/HM3Y-8YHC].

Professor Hari Osofsky provides useful context for understanding the significance of the

number of mayors that signed the Mayors’ Climate Protection Agreement. In a 2013/2014

article, she indicates that "[i]n the United States,. . . .1,054 mayors, representing a total

population of more than 88,920,962 citizens, have joined the U.S. Conference of Mayors

Climate Protection Agreement (“Mayors Agreement”) in which they pledge to meet what the

U.S. commitments under the Kyoto Protocol would have been: reducing emissions to 7%

below 1990 levels by 2012.

While this number is impressive against the current political

backdrop in which U.S. political leaders cannot agree on a coherent pathway forward, these

mayors represent only about 5% of U.S. cities and 28% of the total U.S. population. The vast

majority of cities and people are not participating in the Mayors Agreement.” Hari M.

Osofsky, The Geography of Solving Global Environmental Problems, 58 N.Y.L.S. L. REV.

777, 784–85 (2014).

102. See Krause et al., supra note 1, at 177 (ICLEI’s “membership peaked in 2010 with

nearly 700 local governments, 565 of which were cities and towns. By 2012, city membership

had declined by 22 percent.”). New York City participated in ICLEI’s Climate Protection

Program. N.Y.C.

MAYOR’S OFF. OF LONG-TERM PLAN. & SUSTAINABILITY, INVENTORY OF

NEW YORK CITY GREENHOUSE GAS EMISSIONS (2007),

https://www1.nyc.gov/assets/sustainability/downloads/pdf/publications/GHG%20Inventory

%20Report%20Emission%20Year%202005.pdf [https://perma.cc/QZ93-AKX2] (last visited

July 30, 2023) [hereinafter N.Y.C.

GHG INVENTORY]. On the history of ICLEI, which created

“the first global programme supporting cities in pursuing climate action” in 1993, see J

OLENE

LIN, GOVERNING CLIMATE CHANGE: GLOBAL CITIES AND TRANSNATIONAL LAWMAKING 109

1210 FORDHAM URB. L.J. [Vol. L

participated in the institutionalization of the C40 Group for Climate

Leadership, which began with an initial meeting in 2005 held at the initiative

of Ken Livingstone, the then Mayor of London, England.

103

Part of the

attraction of these networks may have been the information and technical

support they could provide local governments, for example, for tasks such as

inventorying GHG emissions within local borders.

104

Joining these networks

also may have been linked with a broader effort to assert the standing of

cities in the international community, independent from national

governments, in the polycentric global governance regime that some scholars

suggest blossomed around the turn of the 21st century.

105

Indeed, at the

ceremony at which Mayor Bloomberg announced his first major plan for

creating sustainable New York City, known as PlaNYC, British Prime

Minister Tony Blair and Governor Schwarzenegger — but not politicians

from the federal government

106

— provided words of praise. “This would

mark out New York as a global leader in halting climate change,” Mr. Blair

said via videotaped remarks at the event launching the plan.

107

Out of step

(2018); see also Krause et al., supra note 1, at 180–83 (discussing the opposition of the Tea

Party Movement to ICLEI). See generally Elaine B. Sharp, Dorothy M. Daley & Michael S.

Lynch, Understanding Local Adoption and Implementation of Climate Change Mitigation

Policy, 47 U

RB. AFF. REV. 433 (2011) (analyzing the reasons for joining ICLEI and the

impacts of ICLEI membership); Rachel M. Krause, An Assessment of the Impact That

Participation in Local Climate Networks Has on Cities’ Implementation of Climate, Energy,

and Transportation Policies, 29 R

EV. OF POL’Y RSCH (2012) (impact of joining ICLEI and the

Mayors’ Climate Protection Agreement). On the distinction between ICLEI and the Mayors’

Climate Protection Agreement, see Krause et al., supra note 1, at 180.

103. See MICHELE ACUTO, GLOBAL CITIES, GOVERNANCE AND DIPLOMACY: THE URBAN

LINK 87, 100, 102, 108, 113–15 (2013); see also id. at 103, 113–14 (New York City was chair

of the C40 starting in 2010, and New York City and Los Angeles were members of the

Steering Committee as of 2012). On the history of C40, see L

IN, supra note 102, at 105–26.

104. A

CUTO, supra note 103, at 107–09 (discussing the “technical dimension” of C40);

Krause et al., supra note 1, at 181 (referring to the “technical assistance” that ICLEI offers

“member cities”). Out of 504 cities responding to a 2015–2016 survey of cities with

populations exceeding 20,000, 57% had completed inventories of local government GHG

emissions and 47% percent had inventories of community-wide GHG emissions, which are

more complicated to undertake because they measure emissions throughout the jurisdiction,

not just from city operations. See K

RAUSE & HAWKINS, supra note 5, at 28–29.

105. See, e.g., Helmut Philipp Aust, Shining Cities on the Hill? The Global City, Climate

Change, and International Law, 26 E

UR. J. INT’L L. 255, 261–62 (2015); Michele Acuto &

Benjamin Leffel, Understanding the Global Ecosystem of City Networks, 58 URB. STUD.

1758, 1760-67 (2021).

106. New York Mayor Unveils Master Plan for Greener City, INST. FOR TRANSP. DEV.

POL'Y (July 1, 2007), https://www.itdp.org/2007/07/01/new-york-mayor-unveils-master-

plan-for-greener-city/ [https://perma.cc/68NT-GYG8].

107. Thomas J. Lueck, Bloomberg Draws a Blueprint for a Greener City, N.Y. TIMES (Apr.

23, 2007), https://www.nytimes.com/2007/04/23/nyregion/23mayor.html

[https://perma.cc/3URN-PD7K].

2023] LOCAL ACTION, GLOBAL PROBLEM 1211

with the leadership in Washington, it seems that Bloomberg sought to play

on a global stage.

Figure 1: Cumulative Number of Cities Among the 20 Most Populous

Cities in the United States that Established GHG Reduction Targets, by

Year

108

108. Data collected by determining the year that a GHG target was first established in each

city and charting how many targets were established in each given year. This chart does not

reflect whether a city stopped having a GHG reduction target after establishing one and does

not reflect whether a city increased or reduced the stringency of its GHG reduction target after

adopting its first target. See, e.g., Austin, Tex., Res. No. 20070215-023 (2007); C

ITY OF

CHARLOTTE OFF. OF SUSTAINABILITY, SUSTAINABLE AND RESILIENT CHARLOTTE BY 2050

RESOLUTION (2018); CHI. CLIMATE TASK FORCE, CHICAGO CLIMATE ACTION PLAN 9 (2008)

https://www.chicago.gov/city/en/progs/env/climateaction.html [https://perma.cc/ZUC6-

BFYP] (last visited July 30, 2023); C

OLUMBUS CLIMATE ACTION PLAN (2021),

https://www.columbus.gov/sustainable/cap/ [https://perma.cc/T8PM-YKMU] (last visited

July 30, 2023); Memorandum from City of Dallas to Transp. and Env’t Comm., Greenhouse

Gas Emissions (2012)

http://www3.dallascityhall.com/committee_briefings/briefings0612/TEC_GreenhouseGasE

missions_061112.pdf [https://perma.cc/EXG2-2WR8]; C

ITY AND CNTY. OF DENVER, 80X50

CLIMATE GOAL: STAKEHOLDER REPORT, 5 (2017),

https://www.denvergov.org/content/dam/denvergov/Portals/771/documents/EQ/80x50/80x5

0%20Stakeholder%20Report.pdf [https://perma.cc/Y4A8-GCEY] (“In 2007, Denver

established its first GHG emission reduction goal with the 2007 Climate Action Plan.”);

Kristin Musulin, Houston Unveils First Climate Action Plan, U

TILITYDIVE (Apr. 25, 2020),

https://www.utilitydive.com/news/houston-unveils-first-climate-action-plan/576752/

[https://perma.cc/W3ZS-DAJT]; Indianapolis, Ind., Res. No. 10 (Feb. 27, 2017),

https://citybase-cms-prod.s3.amazonaws.com/1f0e56b8bddd40cb903c679344b0f328.pdf

[https://perma.cc/E4G4-KUG2]; C

ITY OF L.A., GREEN LA: AN ACTION PLAN TO LEAD THE

NATION IN FIGHTING GLOBAL WARMING (2007); PLANYC 2007, supra note 31, at 9 ; CITY OF

PHOENIX, CLIMATE ACTION PLAN FOR GOVERNMENT OPERATIONS, 8 (2009) (“In December

2008, the City Council adopted a goal to: Reduce emissions from city operations to 5 percent

below the 2005 levels by 2015.”); C

ITY OF PHILA., LOCAL ACTION PLAN FOR CLIMATE CHANGE

(2007) (“In 1999 the City committed to a goal to reduce Philadelphia greenhouse gases to 10

percent below 1990 levels by 2010”); C

ITY OF SAN ANTONIO, SA CLIMATE READY: A

PATHWAY FOR CLIMATE ACTION & ADAPTATION (2019); Overview: SD Sustainability, CITY

SAN DIEGO, https://www.sandiego.gov/sustainability/overview [https://perma.cc/LJZ9-

BHS6 ] (last visited July 30, 2023) (“In 2015, the City Council approved San Diego’s Climate

Action Plan, which calls for the City to cut half of all greenhouse gas (GHG) emissions by

2035”); S.F.,

CAL., RES. NO. 158-02 (2004); Climate Smart San Jose, CITY OF SAN JOSÉ,

https://www.sanjoseca.gov/your-government/departments-offices/environmental-

services/climate-smart-san-jos [https://perma.cc/Y9P8-DMJA] (last visited July 30, 2023);

Seattle, Wash., Ordinance No. 125002 (Apr. 30, 2015). Note that the following cities do not

appear to have established a GHG reduction target: Fort Worth, Jacksonville, and Oklahoma

City. See ACEEE,

2021 CITY CLEAN ENERGY SCORECARD: FORT WORTH, TX (2021),

https://www.aceee.org/sites/default/files/pdfs/2021_CityScorecard_OnePagers/CS_2021_Fo

rt%20Worth.pdf [https://perma.cc/9DNE-X5U5] (“[T]he city has few initiatives to reduce

GHG emissions and energy use in local government operations. Fort Worth has not

established goals for GHG emissions reductions in municipal operations.”); Sydney Boles et

al., What Jacksonville Can Learn from Nashville about Fighting Climate Change, WUSF

PUB. MEDIA (May 30, 2021), https://wusfnews.wusf.usf.edu/environment/2021-05-30/what-

1212 FORDHAM URB. L.J. [Vol. L

B. Data Collection

Released in April of 2007, PlaNYC was a landmark moment in New York

City’s environmental history. The plan also marked a general turning point

for the urban environmental movement in the United States. PlaNYC

established a target for New York City to reduce emissions by 30 percent

below 2005 levels by 2030.

109

This target was certainly ambitious at the

time.

110

Yet this ambition is not what made PlaNYC distinctive. What made

it different from other municipal climate plans that came before was its data

driven approach to tracking progress towards the stated goal and educating

jacksonville-can-learn-from-nashville-about-fighting-climate-change

[https://perma.cc/MU4Q-PNRK] (“Jacksonville is doing relatively little to reduce its carbon

footprint and does not have a climate action plan”); Air Quality, C

ITY OF OKLA. CITY (2020),

https://www.okc.gov/departments/planning/programs/sustainability/adaptokc/air-quality

[https://perma.cc/3PYK-KSXC] (noting that Oklahoma City’s efforts to establish a GHG

target are still in progress).

109. P

LANYC 2007, supra note 31, at 134.

110. New York City’s 30% by 2030 reduction target was more ambitious than targets

established by other cities in the 1990s and early 2000s. See, e.g., C

ITY OF PHILA., LOCAL

ACTION PLAN FOR CLIMATE CHANGE (2007) (“In 1999 the City committed to a goal to reduce

Philadelphia greenhouse gases to 10 percent below 1990 levels by 2010.”). MAYOR’S

GREENPRINT DENVER ADVISOR COUNCIL, CITY OF DENVER CLIMATE ACTION PLAN 3, (2007),

https://www.austintexas.gov/sites/default/files/files/Sustainability/Climate/Denver_Greenpri

nt.pdf [https://perma.cc/L9XK-9VEE] (introducing a target in 2007 for Denver to reduce

GHG emissions by 10% per capita by 2012); S.F.

DEPT. OF ENV’T, CLIMATE ACTION PLAN FOR

S.F.: LOCAL ACTIONS TO REDUCE GREENHOUSE GAS EMISSIONS ES-1 (2004), (“In 2002, the

San Francisco Board of Supervisors passed the Greenhouse Gas Emissions Reduction

Resolution, committing the City and County of San Francisco to a greenhouse gas emissions

reductions goal of 20% below 1990 levels by the year 2012.”). But see C

ITY OF BOS., CLIMATE:

CHANGE: THE CITY OF BOS.’S CLIMATE ACTION PLAN, 21 (2007),

https://www.cityofboston.gov/climate/pdfs/capjan08.pdf [https://perma.cc/KM5U-E9HU]

(in April 2007, the mayor of Boston signed an executive order committing Boston to reducing

its GHG emissions by 80% by 2050).

2023] LOCAL ACTION, GLOBAL PROBLEM 1213

the private sector.

111

That the Bloomberg administration would emphasize

the collection of energy and emissions data was perhaps natural given that

the mayor built his fortune collecting data about financial markets for Wall

Street.

112

The first step in the process of collecting data was to establish an inventory

of GHGs emitted throughout the city, which is a necessary precursor to

tracking implementation of a GHG reduction target.

113

Thus, in 2007, the

same year in which the city announced PlaNYC, it published its first GHG

inventory, which reports emissions released from activities in the city and

electricity supplied to it.

114

Shortly thereafter, the city council passed a law

that codified the requirement to publish periodic updates to the inventory and

established a mandate — not just a target — to reduce citywide emissions by

30 percent below 2005 levels by 2030.

115

111. See, e.g., PLANYC 2007, supra note 31, at 140; The Editors, OneNYC Needs More

Data, Fewer Slogans, OBSERVER (Apr. 29, 2015), https://observer.com/2015/04/onenyc-

needs-more-data-fewer-slogans/ [https://perma.cc/S8VE-3P7N] (“In 2007, Mayor Michael

Bloomberg released PlaNYC, an unprecedented analysis and agenda that addressed three of

the city’s challenges: growth, an aging infrastructure and a precarious environment. The

report was data-heavy, examining trends about water supply and quality, energy usage and air

pollution, land use, housing and transportation. It made recommendations to make New York

a more livable and sustainable city; and it set measurable goals.”).

112. See Emily Stewart, How Mike Bloomberg Made His Billions: A Computer System

You’ve Probably Never Seen, V

OX (Dec. 11, 2019), https://www.vox.com/2020-presidential-

election/2019/12/11/21005008/michael-bloomberg-terminal-net-worth-2020

[https://perma.cc/PW2B-KZY5].

113. On the importance of GHG inventories for tracking emissions for policy, see

BULKELEY, supra note 87, at 110–12.

114. New York City seems to have relied on assistance from the International Council for

Local Environmental Initiatives (ICLEI) in undertaking its first inventory. See N.Y.C.

GHG

INVENTORY, supra note 102, at 2 (“This report presents the results to date of New York City’s

participation in ICLEI – Local Governments for Sustainability’s Cities for Climate Protection

Campaign”). In fact, New York City’s efforts to quantify and assess its GHG emissions began

years before, in 2002. Id. at 2 (“Efforts to quantify New York City’s greenhouse gas emissions

began in 2002 with an initial assessment of emissions from City government operations.

Further research and analyses were conducted in subsequent years, including the completion

of 2001 and 2006 government operations inventories and 1995, 2001, and 2005 citywide

inventories, the development of emissions forecasts, the quantification of current government

emissions reduction measures, and the establishment of emissions reduction targets for both

New York City as a whole and for New York City government operations.”).

ICLEI, along with the World Resources Institute (WRI) and C40 Cities Climate

Leadership Group (C40), created what is now the standard protocol used by local governments

to track their GHG emissions. The development of the protocol began in 2011 between C40

and ICLEI; WRI joined the partnership in 2012. See, e.g., W

EE KEAN FONG ET AL., GLOBAL

PROTOCOL FOR COMMUNITY-SCALE GREENHOUSE GAS INVENTORIES: AN ACCOUNTING AND

REPORTING STANDARD FOR CITIES (2021), 26

https://ghgprotocol.org/sites/default/files/standards/GPC_Full_MASTER_RW_v7.pdf

[https://perma.cc/6UHK-M4ZD]; L

IN, supra note 102, at 121–22.

115. N.Y.C., NY Local Law No. 22 (amended by N.Y.C. NY Local Law No. 97, 2019).

1214 FORDHAM URB. L.J. [Vol. L

In 2009, at the urging of a Bloomberg administration seeking to

implement PlaNYC, the city council passed a suite of regulations known as

the Greater, Greener Buildings Plan (GGBP)

116

that enlisted the support of

the real estate industry to achieve the city’s climate goals.

117

New York

focused its efforts on real estate, as opposed to other sources of emissions

such as transportation, because energy use in buildings accounts for the

lion’s share of local GHG emissions in New York and other densely

populated urban areas under the standard approach to measuring city

emissions.

118

Cities also have relatively greater authority to regulate

emissions from buildings than transportation, which makes buildings a more

natural regulatory target.

119

Indeed, around the same time that the city passed

the GGBP, the Bloomberg administration tried to adopt rules to regulate

116. The following three paragraphs draw from Danielle Spiegel-Feld, Reducing

Greenhouse Gas Emissions from Buildings in New York City: An Evolving Regime, in GLOBAL

SUSTAINABLE CITIES: CITY GOVERNMENTS AND OUR ENVIRONMENTAL FUTURE 259, 260

(Danielle Spiegel-Feld et al. eds. 2023).

117. On the connection between the suite of Greener, Greater Buildings laws and PlaNYC,

see Testimony by Rohit T. Aggarwala, Transcript of the Minutes of the Committee on

Environmental Protection, New York City Council, 15 (June 27, 2008); Testimony by Rohit

T. Aggarwala, Transcript of the Minutes of the Committee on Environmental Protection, New

York City Council, 137–38 (June 26, 2009). On December 8, 2009, when the City Council

Environmental Protection Committee voted on the package of bills, the committee chair, Jim

Gennaro, mentioned that EPA had announced the day before that greenhouse gases

endangered public health, and that world leaders were meeting at a conference in Copenhagen.

See generally Transcript of the Minutes of the Committee on Environmental Protection, New

York City Council (Dec. 8, 2009) (noting that the committee voted 9–0 on all the bills, except

for the bill requiring audits and retro-commissioning which passed 8–1, with Council member

Ulrich, a Republican, voting no).

118. For example, in Boston, Chicago, New York, Philadelphia, and Washington, D.C.,

buildings account for over 70 percent of local GHG emissions. See, e.g., Building Emissions

Reduction and Disclosure,

CITY OF BOS. (June 28, 2023),

https://www.boston.gov/departments/environment/building-emissions-reduction-and-

disclosure [https://perma.cc/XD4U-BYFL]; Press Release, City of Chicago Office of the

Mayor, Mayor Lightfoot Announces a Building Decarbonization Working Group, 1 (June 2,

2021),

https://www.chicago.gov/city/en/depts/mayor/press_room/press_releases/2021/june/Decarb

onizationWorkingGroup.html [https://perma.cc/UJM7-KULM]; Climate Mobilization Act,

N.Y.C.

COUNCIL, https://council.nyc.gov/data/green/ [https://perma.cc/59YT-A7XC] (last

visited Aug. 14, 2023); Helena Rudoff, Philadelphia’s 2019 Greenhouse Gas Inventory

Reports 20% Reduction in Emissions Since 2006, C

ITY OF PHILA., (Apr. 21, 2022)

https://www.phila.gov/2022-04-21-philadelphias-2019-greenhouse-gas-inventory-reports-

20-reduction-in-emissions-since-2006/ [https://perma.cc/GMG8-8HU4]; Greenhouse Gas

Inventories, D.C.

DEP’T. OF ENERGY & ENV’T, https://doee.dc.gov/service/greenhouse-gas-

inventories [https://perma.cc/95JF-6DNX] (last visited Aug. 14, 2023).

119. See Danielle Spiegel-Feld, Frontiers in Regulating Building Emissions: An Agenda

for Cities, 47 W

M. & MARY ENV’T L. & POL’Y REV. 103, 107–08 (2022) (noting that “cities .

. . . have more power to address emissions from buildings than they do from other sectors,

such as transportation. Cities that seek to develop policies to reduce GHG emissions must

operate within a thicket of preempting federal and state regulations.”).

2023] LOCAL ACTION, GLOBAL PROBLEM 1215

emissions from taxis and introduce congestion pricing, but these efforts were

thwarted by the federal courts

120

and the state legislature,

121

respectively.

The GGBP included four distinct components:

1. Local Law 84, which requires buildings to annually report to the city

how much energy and water they consume; the buildings then

receive a “benchmarking” score that indicates how their

consumption compares to similar properties.

2. Local Law 85, which requires buildings to meet the requirements of

the most current energy code when they conduct major renovations.

3. Local Law 87, which requires buildings to conduct periodic energy

audits that identify opportunities for cost-effective retrofits and

retro-commissioning of heating, ventilation, and air conditioning

(HVAC) equipment.

122

4. Local Law 88, which requires non-residential buildings to make

certain lighting upgrades and separately charge large tenants for

their electricity consumption (i.e., “submeter”) instead of charging

them a fixed percentage of the building’s total electricity bill (which

had previously been common practice).

123

The legislative package also established two programs to assist building

owners in making energy upgrades: a jobs training program to bolster the

local workforce with the required technical expertise, and an energy

efficiency financing corporation known as the New York City Energy

Efficiency Corporation (NYCEEC) to provide low-cost funding for energy

upgrades.

124

120. See, e.g., Metro. Taxicab Bd. of Trade v. City of New York, No. 8 Civ. 7837, 2008

WL 4866021, at *1 (Oct. 31, 2008); Metro. Taxicab Bd. of Trade v. City of New York, 615

F.3d 152, 158 (2d Cir. 2010).

121. Katrina M. Wyman & Danielle Spiegel-Feld, The Urban Environmental Renaissance,

108 C

ALIF. L. REV. 305–77 (2020).

122. Retro-commissioning essentially requires buildings to tune-up the existing HVAC

systems. Retro-commissioning does not require owners to invest in new systems. N.Y.C., NY

LOCAL LAW NO. 87 § 1 (2019) (adding §28-308.3 (retro-commissioning required)).

123. N.Y.C., NY

LOCAL LAW NO. 88 § 1 (2009) (“[M]ost large buildings have one master

meter for electricity that measures building-wide usage, as opposed to separate meters that

provide such information on a per tenant basis.”).

124. New York City Mayor’s Office of Long-Term Planning and Sustainability, Overview

of the Greener, Greater Buildings Plan (2014)

http://www.nyc.gov/html/gbee/downloads/pdf/greener_greater_buildings_plan.pdf

[https://perma.cc/L8JP-X5BH]; New York City Mayor’s Office of Long-Term Planning and

Sustainability, Greener, Greater Buildings Plan (2014), https://sallan.org/pdf-

docs/Greener_Greater_workforce_and_financing.pdf [https://perma.cc/K3ZC-DBBN].

1216 FORDHAM URB. L.J. [Vol. L

The GGBP was groundbreaking. At the time it was passed, the buildings

that it covered accounted for 45% of energy usage in New York City.

125

Local Law 84 was also among the first benchmarking laws in the U.S. and

the first to be implemented

126

(Austin, Texas and Washington, DC enacted

benchmarking laws the year before LL84 was passed).

127

Together with

Local Law 87, this benchmarking law created a vast repository of data on

energy use and retrofit opportunities throughout the building stock that could

educate the public and inform future emissions mandates.

But the GGBP was also modest. Apart from the requirements to tune up

HVAC equipment and make lighting upgrades in non-residential buildings,

none of the regulations actually obligated building owners to reduce energy

consumption. Nor did the regulations create a direct financial incentive for

owners to reduce their energy consumption. Instead, the laws’ principal aim

was to overcome information deficits among building owners regarding how

inefficient their properties may be to incentivize voluntary cost-effective

improvements.

128

As a testament to just how non-confrontational the GGBP

regulations were, at a City Council hearing about the benchmarking bill,

Russell Unger, who led the industry-connected Urban Green Council, stated

that there was a “strong drive” for benchmarking in the industry.

129

“Buildings are already going this way,”

130

he explained.

It was far from accidental that the GGBP adopted such a non-

confrontational approach. Mayor Bloomberg would have preferred to

impose legally binding obligations on building owners to implement

measures to improve their energy efficiency, but he backed down in the face

125. See NEW YORK CITY MAYOR’S OFFICE OF LONG-TERM PLANNING AND

SUSTAINABILITY, OVERVIEW OF THE GREENER, GREATER BUILDINGS PLAN, supra note 124. As

initially adopted, Local Law 84 applied to buildings with more than 50,000 square feet; it was

subsequently amended to cover buildings with greater than 25,000 square feet as well.

126. About Benchmarking in New York, URBAN GREEN,

https://metered.urbangreencouncil.org/site/about [https://perma.cc/FR6A-6U7T] (last visited

Aug. 14, 2023) (“In 2009, as part of a suit of energy efficiency laws called the Greener,

Greater Buildings Plan, New York passed Local Law 84 (LL84) — one of the earliest

benchmarking laws in the country and the first to be implemented.”).

127. See infra Table 1.

128. N.Y.C.

GLOBAL PARTNERS, BEST PRACTICE: NYC GREENER, GREATER BUILDINGS

PLAN (2010),

https://www.nyc.gov/html/unccp/gprb/downloads/pdf/NYC_Environment_GreenBuildings.

pdf [https://perma.cc/X55X-9EYR]

(“Benchmarking provides the basis for empowering

building owners to take steps towards minimizing energy use and maximizing the economic

benefits of energy conservation.”).

129. Testimony of Russell Unger, Transcript of the Minutes of the Committee on

Environmental Protection, New York City Council, at 59 (June 27, 2008).

130. Id.

2023] LOCAL ACTION, GLOBAL PROBLEM 1217

of opposition from real estate owners and an economic recession.

131

Instead

of taking on the industry, the city “join[ed] forces with the real estate

industry” in its quest to make their buildings greener.

132

Although the cooperative approach was a second-best approach adopted

in the face of the real estate industry’s political clout, there was an economic

rationale for thinking it might yield some improvements in energy efficiency.

Contrary to other polluting industries like energy producers, real estate does

not inherently benefit from intensive energy consumption and could actually

benefit from lower energy costs by reducing its energy use. In any event, the

mayor who had made a fortune in supplying data to the finance industry

would be responsible for the collection of a large amount of data about

building energy usage in New York City that would enable his successor to

mandate building performance standards.

The GGBP had a catalytic effect, perhaps in part because Bloomberg

Philanthropies helped to fund work to export ideas about improving building

energy efficiency that the Bloomberg administration had developed in New

York City.

133

As Table 1 below indicates, 13 of the 20 most populous cities,

including New York City, adopted some sort of benchmarking law between

2009, when the GGBP was passed, and 2022. Combined, these laws covered

billions of square feet.

134

Eight of these cities also adopted some sort of

energy audit law in the years that followed as well or included an audit

requirement as a component of their benchmarking law.

135

131. See Mireya Navarro, Bloomberg Drops and Effort to Cut Building Energy Use, N.Y.

TIMES (Dec. 4, 2009), https://www.nytimes.com/2009/12/05/science/earth/05bloomberg.html

[https://perma.cc/52VV-DR2H]. Section 28-308.3 of Intro. 967 in 2009 would have required

buildings to implement energy efficiency measures that would pay back in seven years or less.

Intro 967 became Local Law 87, which requires audits, and minimal retro-commissioning. Id.

132. Mayor Bloomberg’s 2008 State of the City Address, N.Y.

TIMES (Jan. 17, 2008),

https://www.nytimes.com/2008/01/17/nyregion/17stateofnyc.html [https://perma.cc/ZN26-

75Q9].

133. See Mayors from 10 Major Cities Unite to Cut Climate Pollution from Buildings,

NRDC (Jan. 29, 2014), https://www.nrdc.org/media/2014/140129-0 [https://perma.cc/J2YA-

XJJP].

134. Id.

135. See infra Table 1.

1218 FORDHAM URB. L.J. [Vol. L

Table 1: List of Benchmarking and Auditing Laws in the 20 Most

Populous Cities in the United States, by Year First Adopted

City

Benchmarking

Law

136

Building Audit Law

137

Austin

2008

Charlotte

None

138

None

136. See INST. FOR MKT. TRANSFORMATION, COMPARISON OF U.S. COMMERCIAL BLDG.

ENERGY BENCHMARKING AND TRANSPARENCY POL’YS (2022), https://www.imt.org/wp-

content/uploads/2022/06/IMT-Benchmarking-Matrix_July-2022.pdf

[https://perma.cc/4DDY-BYLB]; see also Energy Conservation Audit and Disclosure

(ECAD) Ordinance,

AUSTIN, TEX., CITY CODE §§ 6–7 (2008); Chicago Energy Use

Benchmarking Ordinance, CHI., ILL. MUN. CODE ch.18-14 (2017); Energy and Water

Benchmarking & Transparency Ordinance,

COLUMBUS, OHIO, CODE OF ORDINANCES tit. 41

ch. 4117 (2020); Energize Denver Benchmarking Ordinance,

DENVER, COLO., REV. MUN.

CODE chs. 4, 10 (2016); Press Release, Mayor’s Office of Resilience and Sustainability,

Mayor Sylvester Turner Signs Sweeping Decarbonization Policy for City Buildings (Apr. 22,

2022); I

NDIANAPOLIS, IND., Ordinance No. 25, REV. CODE TIT. 3 ch. 710 (2021),

https://media.graphassets.com/m86B23MS4unBlMk7TLc2 [https://perma.cc/NQ2Y-86K6];

Existing Buildings Energy and Water Efficiency Ordinance, L.A.,

CAL. MUN. CODE div. 97

§§ 91.9701–9712 (2016); N.Y.C., NY

LOCAL LAW NO. 84, N.Y.C. ADMIN. CODE tit. 28 ch. 3

art. 309 (2009); N.Y.C., NY LOCAL LAW NO. 133, N.Y.C., ADMIN. CODE tit. 28 ch. 3 art. 309

(2016); Energy Benchmarking and Disclosure Law, P

HILA., PA., CODE § 9-3402 (2012);

Building Energy Benchmarking Ordinance, S

AN DIEGO, CAL., MUN. CODE ch. 14 art. 12 div.

1 (2019); Existing Commercial Buildings Energy Performance Ordinance, S.F., CAL. ENV’T

CODE ch. 20 §§ 2000–2009 (2011); Energy and Water Building Performance Ordinance, SAN

JOSE, CAL. MUN. CODE tit. 17 ch. 17.85 §§ 200, 300, 410, 420, 510, 520, 540 (2018); Building

Energy Benchmarking and Reporting Program, SEATTLE, WASH. MUN. CODE tit. 22 ch. 22.920

(2010).

137. See INST. FOR MKT. TRANSFORMATION, COMPARISON OF U.S. BUILDING AUDIT, TUNE-

UPS, AND RETROCOMMISSIONING POLICIES (2021), https://www.imt.org/wp-

content/uploads/2021/01/IMT-Comparison-of-Audit-TuneUp-RCx-Policies-January-

2021.pdf [https://perma.cc/YMG2-WAE8]; see also Energy Conservation Audit and

Disclosure (ECAD) Ordinance, A

USTIN, TEX., CITY CODE §§ 6–7 (2008); Existing Buildings

Energy and Water Efficiency Ordinance, L.A.,

CAL. MUN. CODE div. 97 §§ 91.9701–9712

(2016); N.Y.C., NY LOCAL LAW NO. 87, N.Y.C. ADMIN. CODE tit. 28 ch. 3 art. 308 (2009);

Building Energy Performance Program, P

HILA., PA., CODE § 9-3404 (2019); Building Energy

Benchmarking Ordinance, S

AN DIEGO, CAL., MUN. CODE ch. 14 art. 12 div. 1 (2019); Existing

Commercial Buildings Energy Performance Ordinance, S.F., CAL. ENV’T CODE ch. 20 §2000

– 2009 (2011); Energy and Water Building Performance Ordinance, S

AN JOSE, CAL. MUN.

CODE tit. 17 ch. 17.85 §§ 200, 300, 410, 420, 510, 520, 540 (2018); Energy Audit Ordinance,

SAN JOSE, CAL. MUN. CODE tit. 17 ch. 17.85 §§ 200, 300, 410, 420, 510, 520, 540 (2021);

Seattle, Wash., Ordinance No. 125002, S

EATTLE, WASH. MUN. CODE tit. 22 ch. 22.920 (2016).

138. Note that a voluntary benchmarking program was launched in 2023. City of Charlotte

Launches New Program to Cut Energy Use, CITY OF CHARLOTTE (Apr. 20, 2023),

https://www.charlottenc.gov/CS-Prep/City-News/City-of-Charlotte-Launches-New-

Program-to-Cut-Energy-Use [https://perma.cc/75U6-FEK6].

2023] LOCAL ACTION, GLOBAL PROBLEM 1219

City

Benchmarking

Law

136

Building Audit Law

137

Chicago

2013

None

Columbus

2020

None

139

Dallas

None

Denver

2016

None

Fort Worth

None

140

None

Houston

2022

None

Indianapolis

2021

None

Jacksonville

None

Los Angeles

2016

New York

2009

Oklahoma City

None

Phoenix

2015

141

None

Philadelphia

2012

2019

San Antonio

None

142

None

San Diego

2019

139. Home energy audits in Columbus appear to be voluntary only, as of 2020. See

SUSTAINABLE COLUMBUS, 2020 ANNUAL REPORT (2020),

https://www.columbus.gov/WorkArea/DownloadAsset.aspx?id=2147521859

[https://perma.cc/HUV6-MW2N].

140. The city’s benchmarking program appears to be voluntary only. See State and Local

Building Efficiency Regulations & Policies: Texas, A

QUICORE,

https://www.aquicore.com/blog/state-and-local-building-efficiency-regulations-policies-

texas [https://perma.cc/4XLK-VVAT] (last visited Aug. 14, 2023).

141. Phoenix’s law was blocked by Arizona. See Erin Stone, From Hero to Zero: Arizona

Was a Leader in Climate Policy 15 Years Ago. What Happened?, AZ CENT. (June 11, 2021,

1:27 PM), https://www.azcentral.com/story/news/local/arizona-

environment/2020/09/25/arizona-was-once-climate-policy-leader-in-west-what-

happened/5841376002/ [https://perma.cc/XR49-WACN].

142. An ordinance is in development. See C

ITY OF SAN ANTONIO, PRIMER: SAN ANTONIO

BENCHMARKING 2 (2020),

https://www.sanantonio.gov/Portals/0/Files/Sustainability/EnergyBenchmarking/PrimerSAB

enchmarking2020.pdf?ver=2020-11-19-105017-767 [https://perma.cc/RBJ3-LGF6].

1220 FORDHAM URB. L.J. [Vol. L

City

Benchmarking

Law

136

Building Audit Law

137

San Francisco

2011

San Jose

2018

Seattle

2010

2016

Figure 2: Cumulative Number of Benchmarking and Auditing Laws in

the 20 Most Populous Cities, by Year First Adopted

143

Important as these developments were, by the mid-2010s, it was evident

to people following climate policy in New York City that the GGBP’s light-

touch approach was not going to get the city all the way to where it wanted

to go. Building emissions fell 19% below 2005 levels between 2005 and

2014, but much of the decrease was attributed to reductions in the carbon

intensity of electricity brought about by greater use of natural gas to generate

electric power due to the fracking revolution and decline in the price of

natural gas, rather than actions that building owners had taken.

144

Benchmarking itself was associated with more modest impacts; a 2016 City-

funded study of properties that regularly submitted benchmarking between

2010 and 2015 found that such properties reduced their energy use by 10%

143. Figure populated by Table 1 data.

144. See C

ITY OF NEW YORK MAYOR’S OFFICE OF LONG-TERM PLANNING AND

SUSTAINABILITY, ONE CITY: BUILT TO LAST 6 (2014).

2023] LOCAL ACTION, GLOBAL PROBLEM 1221

during the time period.

145

Another study that examined the effects of

benchmarking laws in Austin, New York, San Francisco, and Seattle found

that, on average, the benchmarking laws led to a 3% decline in utility

expenditures between 2012 and 2013.

146

As for the energy audits that LL87

mandated, the only study to have systematically studied their impact found

the audits to have modestly reduced energy use by between 2.5% and 4.9%,

depending on the type of building.

147

Late in the Bloomberg administration, it started to contemplate more

ambitious GHG reduction targets, as climate scientists underscored a need

for deeper reductions and Hurricane Sandy decimated large parts of the city

in 2012.

148

In fact, on December 31, 2013 — the very last day in which

Bloomberg was in office — the Mayor’s Office of Long-Term Planning and

Sustainability published a report titled “New York City’s Pathways to Deep

Carbon Reductions,” which suggested a 80 x 50 target (80% reduction below

2005 emissions by 2050) and laid out steps the city could take to reduce its

emissions by this much.

149

To achieve the 80 x 50 goal, the city would have

to adopt stricter, more politically complicated regulations than it had to date.

Reviving a strategy that was laid to waste in the GGBP negotiations, the

report mentioned mandatory building performance targets as an option for

helping to achieve an 80% reduction in citywide GHG emissions by 2050.

150

Notably, New York City was far from the only city to have achieved

lackluster results from its early climate policies; a Brookings Institute study

from 2020 that surveyed the climate action plans for the 100 most populous

145. See City of New York, Urban Green Council, New York City’s Energy and Water

Use 2014 and 2015 Report 5 (2017).

146. See Karen Palmer & Margaret Walls, Does Information Provision Shrink the Energy

Efficiency Gap? A Cross-City Comparison of Commercial Building Benchmarking and

Disclosure Laws 27 (Res. For Future, Discussion Paper RFF DP 15-12, 2015).

147. See Constantine E. Kontokosta, Danielle Spiegel-Feld & Sokratis Papadopoulos, The

Impact of Mandatory Energy Audits on Building Energy Use, 5 N

ATURE ENERGY 309, 310

(2020).

148. See C

ITY OF NEW YORK, MAYOR’S OFFICE, NEW YORK CITY’S PATHWAYS TO DEEP

CARBON REDUCTIONS 126 (2013), https://s-

media.nyc.gov/agencies/planyc2030/pdf/nyc_pathways.pdf [https://perma.cc/N4FA-X3RJ]

(stating the rationale for the target was to limit the rise in temperature and “prevent ‘dangerous

anthropogenic interference’ with the climate system,” and also referring to the potential to

both decarbonize and improve resiliency against storms like Sandy).

149. See Daniel Aldana Cohen, New York City as “Fortress of Solitude” after Hurricane

Sandy: A Relationship Sociology of Extreme Weather’s Relationship to Climate Politics, 29

NVT’L POL. 1, 11 (2020).

150

See id. (“Without fanfare, on the last day of Bloomberg’s administration (31 December

2013), the Mayor’s Office of Long-Term Planning and Sustainability uploaded a report titled

‘New York City’s Pathways to Deep Carbon Reductions.’ It outlined an 80% cut in GHG

emissions by 2050, a significant acceleration of the original PlaNYC’s target, largely through

increased building retrofits.” (citing C

ITY OF NEW YORK, NEW YORK CITY’S PATHWAYS TO

DEEP CARBON REDUCTIONS 46 (2013))).

1222 FORDHAM URB. L.J. [Vol. L

U.S. cities found that roughly two-thirds of those cities were lagging behind

their emissions targets.

151

President Trump’s election provided the political

context that enabled local leaders in New York and several other cities to

pledge stronger action. With an avowed climate skeptic

152

in the White

House, the protest politics that were somewhat muted while Obama was in

power came back in full force.

C. Mandates

On June 1, 2017, news broke that President Trump had formally decided

to withdraw the United States from the Paris Agreement on Climate

Change.

153

The news angered climate activists who had hoped that some of

the more progressive members of Trump’s inner circle might prevail upon

him to uphold the agreement.

154

New York City’s Mayor Bill de Blasio

channeled this disappointment in a speech delivered the same day. “This is

a dagger aimed straight at the heart of New York City,” de Blasio declared.

155

He went on to explain that Trump’s decision had amplified the need for local

actions:

151. See Sam Markolf et al., Brookings, Pledges and Progress: Steps toward Greenhouse

Gas Emission Reductions in the 100 Largest Cities across the United States (2020),

https://www.brookings.edu/research/pledges-and-progress-steps-toward-greenhouse-gas-

emissions-reductions-in-the-100-largest-cities-across-the-united-states/

[https://perma.cc/7QZG-6VKW].

152. See Clare Foran, Donald Trump and the Triumph of Climate-Change Denial, T

ATLANTIC (Dec. 25, 2016), https://www.theatlantic.com/politics/archive/2016/12/donald-

trump-climate-change-skeptic-denial/510359/ [https://perma.cc/7Y4H-6LRR] (stating that

Trump “has called global warming a ‘hoax,’ insisted while campaigning for the Republican

nomination that he’s ‘not a big believer in man-made climate change,’ and recently suggested

that ‘nobody really knows’ if climate change exists”); see also Dylan Matthews, Donald

Trump Has Tweeted Climate Change Skepticism 115 Times. Here's All of It, V

OX (June 1,

2017, 5:00 PM), https://www.vox.com/policy-and-politics/2017/6/1/15726472/trump-tweets-

global-warming-paris-climate-agreement [https://perma.cc/T82C-EJQH].

153. See Press Release, White House, President Trump Announces U.S. Withdrawal from

the Paris Climate Accord (June 1, 2017),

https://trumpwhitehouse.archives.gov/articles/president-trump-announces-u-s-withdrawal-

paris-climate-accord/ [https://perma.cc/DRY6-B6TP].

154. Robbie Gramer & Dan de Luce, In Closed-Door Climate Showdown, It’s Jared and

Ivanka vs. Bannon and Pruitt, F

OREIGN POL’Y (May 8, 2017, 4:21 PM),

https://foreignpolicy.com/2017/05/08/in-closed-door-climate-showdown-its-jared-and-

ivanka-vs-bannon-and-pruitt-climate-change-trump-paris-agreement/

[https://perma.cc/M8EX-NC3T0] (noting the debate among members of Trump’s inner circle

regarding a U.S. withdrawal from the Paris Agreement, and noting that, “[u]ntil a couple of

weeks ago, supporters of the climate agreement were cautiously optimistic the administration

would opt to stay in the accord”).

155. See Bill de Blasio, Mayor of New York City, Transcript: Mayor de Blasio Delivers

Remarks on NYC Ferry’s New South Brooklyn Route (May 31, 2017), in N.Y.C.

OFF. OF THE

MAYOR.

2023] LOCAL ACTION, GLOBAL PROBLEM 1223

We in New York City are going to have to take matters into our own hands.

And by the way, that’s what cities all over the country and all over the

world are going to do. That’s what states and provinces are doing. It

shouldn’t be this way, but it’s what is necessary. We have to take matters

into our own hands when it comes to climate change.

We plan, later this week, to sign an executive order maintaining New York

City’s commitment to the Paris Agreement. We will partner with cities big

and small around the country to support them in doing the same. It’s

obvious that when our federal government fails us, local governments have

to step up.

156

History was repeating itself. Just as Seattle and other cities had pledged to

reduce their emissions to align with the Kyoto Protocol’s targets after Bush

withdrew from the agreement,

157

New York, Chicago, Dallas, and hundreds

of other cities were pledging to reduce their own emissions to align with the

Paris targets in an effort partly organized this time by Bloomberg

Philanthropies.

158

Once again, cities were promising to take up climate

change in protest against federal backsliding.

But there were also some important differences this time around. With

the climate crisis intensifying — 2017 was the hottest summer New York

City had ever recorded to that date

159

— scores of available data on energy

usage throughout the city’s buildings, the memory of 2012’s Hurricane

Sandy still plainly in view, and a deeply unpopular president who for many

personified the excesses of the real estate industry, the stars were finally

aligned for New York City to impose stricter climate regulations to curtail

building emissions.

In September 2017, two months before he was handily re-elected to a

second term, Mayor Bill de Blasio sketched the centerpiece of a more

aggressive climate strategy: New York City would set a cap on the amount

of fossil fuels that large buildings could use each year and fine buildings that

exceeded their caps.

160

The caps would apply to buildings with more than

156. Id.

157. See Hiskes, supra note 101.

158. See America Is All In, BLOOMBERG PHILANTHROPIES,

https://www.bloomberg.org/environment/supporting-sustainable-cities/america-is-all-in/

[https://perma.cc/WCW6-XT9M] (last visited Aug. 7, 2023).

159. See Hottest Summer Ever for New York City, DAILY BEAST (Apr. 24, 2017, 5:50 PM),

https://www.thedailybeast.com/cheats/2010/09/01/hottest-summer-ever-for-new-york-city

[https://perma.cc/D5F4-HUC4].

160. See William Neuman, De Blasio Vows to Cut Emissions in New York’s Larger

Buildings, N.Y.

TIMES (Sept. 14, 2017), https://www.nytimes.com/2017/09/14/nyregion/de-

blasio-mayor-environment-buildings-emissions.html?mcubz=3 [https://perma.cc/JQP6-

V56P]; see Samar Kurshid, Mapping the Mayoral: Where de Blasio and Malliotakis Each

Did Well, G

OTHAM GAZETTE, (Nov. 10, 2017), https://www.gothamgazette.com/city/7313-

1224 FORDHAM URB. L.J. [Vol. L

25,000 square feet, thus capturing tens of thousands of buildings.

161

The

mayor offered few details about the plan at that time. But he made clear that

the fines could be substantial, up to millions of dollars per year. “We gave

people a very fair amount of time for the private sector to come forward and

really agree to voluntary goals that will be sufficient,”

162

de Blasio said. “It

[is] time to move to mandates.”

163

Eighteen months later, the city council

passed a bill known as Local Law 97 of 2019 (LL97) that wrote the

envisioned mandate into law. The bill passed by a vote of 45–2, with only

two nos from the Republican-tending borough of Staten Island.

164

As indicated above, the idea of mandating that buildings meet certain

performance standards was far from new;

165

Bloomberg officials wanted to

require certain efficiency improvements as part of the GGBP and revived the

idea in their waning days in office.

166

In a sense, the de Blasio administration

was just picking up where Bloomberg left off. While in other policy areas

mapping-the-mayoral-where-de-blasio-and-malliotakis-each-did-well

[https://perma.cc/V939-ZQ82].

161. Portions of the following text draw from Spiegel-Feld et al., supra note 116.

162. Press Release, New York City Press Office, Mayor de Blasio: NYC Will Be First City

to Mandate That Existing Buildings Dramatically Cut Greenhouse Gas Emissions (Sept. 14,

2017), https://www.nyc.gov/office-of-the-mayor/news/587-17/mayor-de-blasio-nyc-will-be-

first-city-mandate-existing-buildings-dramatically-cut#/0 [https://perma.cc/DFK2-WVNH].

Later in the fall, Council member Costa Constantinides introduced Intro 1745, which

established mandatory targets for buildings. See Stas Zakrzewski, NYC Climate Mobilization

Act: A Brief History, P

ASSIVE HOUSE ACCELERATOR (Feb. 4, 2020),

https://passivehouseaccelerator.com/articles/nyc-climate-mobilization-act-a-brief-history

[https://perma.cc/C46H-52J7].

163. Transcript: Mayor de Blasio Announces NYC Will Be First City to Mandate that

Existing Buildings Dramatically Cut Greenhouse Gas Emissions, N.Y.C. OFF. MAYOR (Sept.

14, 2017), https://www.nyc.gov/office-of-the-mayor/news/589-17/transcript-mayor-de-

blasio-nyc-will-be-first-city-mandate-existing-buildings [https://perma.cc/4Z8Q-ZC6K];

Zakrzewski, supra note 162 (noting there were no members of the City Council standing with

de Blasio when he made his announcement, and the chair of the council’s environmental

protection committee, Costa Constantinides, who ultimately oversaw the complex process of

drafting of the law mandating building emissions reductions, was reported in the New York

Times as “taken aback” that the mayor had come out so soon for mandates before a bill had

been drafted);

see also

William Neuman, Big Buildings Hurt the Climate. New York City

Hopes to Change That, N.Y.

TIMES (Apr. 17, 2019),

https://www.nytimes.com/2019/04/17/nyregion/nyc-energy-laws.html

[https://perma.cc/9H58-RR9S].

164. Transcript of the Minutes of the City Council Meeting, New York City Council 1503

(Apr. 18, 2019).

165. The following paragraphs expand on material previously published in a condensed

form in Katrina Wyman, Building Efficiency, 40

ENVT’L F. 24 (2023).

166. See N.Y.C., N.Y., Intro. 967 s.1 (2009) (draft bill requiring buildings to implement

energy efficiency measures that would pay back in seven years or less); see Navarro, supra

note 131 (reporting that Bloomberg had wanted mandatory targets). On the idea that

administration officials revived the ideas of mandates in the waning days of the

administration, see Cohen, supra note 149, at 11.

2023] LOCAL ACTION, GLOBAL PROBLEM 1225

de Blasio distanced himself from Bloomberg, who de Blasio portrayed as a

Manhattan-centered elitist, on climate, the new administration drew heavily

upon its predecessor’s work.

167

As a case in point, the de Blasio

administration’s very first sustainability report, One City Built to Last, issued

in 2014, formally adopted the 80 x 50 goal that Bloomberg officials had

floated earlier and signaled that building mandates might be necessary to

achieve the goal.

168

The continuity in climate policy was facilitated by a

continuity in policy- and law-makers between the two administrations.

Council member Costa Constantinides, the chair of the council’s

environmental protection committee starting in 2015 — who spearheaded

the drafting of Local Law 97 — had worked as a staffer for the chair of the

committee he was now heading in 2009 when the Bloomberg era building

laws were adopted and mandates were considered but dropped.

169

Inside the

mayoral offices working on climate change, Dan Zarrilli and John Lee were

both key figures in the Bloomberg administration and stayed on well into the

167. See Michael Barbaro, Seeking to Succeed Bloomberg, While Keeping Him at a

Distance, N.Y. TIMES (Sept. 4, 2013),

https://www.nytimes.com/2013/09/05/nyregion/seeking-to-succeed-bloomberg-while-

keeping-him-at-a-distance.html [https://perma.cc/8NJR-DBTN].

168. See ONE CITY: BUILT TO LAST, supra note 144, at 10; see also Matt Flegenheimer, De

Blasio Orders a Greener City, Setting Goals for Energy Efficiency of Buildings, N.Y. TIMES

(Sept. 20, 2014), https://www.nytimes.com/2014/09/21/nyregion/new-york-city-plans-

major-energy-efficiency-improvements-in-its-

buildings.html?action=click&module=RelatedCoverage&pgtype=Article&region=Footer

[https://perma.cc/X3V6-6ZYE]. In December 2014, the NYC council passed legislation

increasing the goal for reducing citywide emissions from 30% by 2030, to an 80% reduction

by 2050. Intro 78-2014 (Local Law 66). See O

NE CITY: BUILT TO LAST, supra note 144, at 9–

10.

169. See Costa Constantinides, LINKEDIN, https://www.linkedin.com/in/costa-

constantinides-abbb554 [https://perma.cc/YJR7-LWVK] (last visited Sept. 10, 2023)

(identifying Constantinides as Deputy Chief of Staff to Councilmember James Gennaro from

December 2007 to December 2013). Councilmember James F. Gennaro was chair of the City

Council’s Environmental Protection Committee from January 2002 to December 2013. See

James F. Gennaro, L

INKEDIN, https://www.linkedin.com/in/james-f-gennaro-70ba4461

[https://perma.cc/A4US-VTNS] (last visited Sept. 10, 2023). Local Law 87, which required

retro-commissioning but not building retrofits, was passed in 2009, while Gennaro was chair

and Constantinides was his deputy chief of staff. See Navarro, supra note 131; Testimony of

Brad Lander, Council Member, Transcript of the Minutes of the Committee on Environmental

Protection, New York City Council 41 (Dec. 4, 2018) (describing the history of how the

proposal for mandatory retrofits was dropped in 2009). Constantinides had personal reasons

for working hard to pass a law to remove fossil fuels from buildings. Removing them would

not only reduce GHG emissions and help the climate, but also reduce local air pollution and

therefore prevent more children from getting asthma, which afflicted his own son. See Costa

Constantinides, From Asthma Alley to Renewable Row: Transform This Stretch of Queens,

N.Y. D

AILY NEWS (Jan. 16, 2022, 5:00 AM), https://www.nydailynews.com/opinion/ny-

oped-20220116-ucjx47uc7felbl2wfwxbwzw2fq-story.html [https://perma.cc/3MYN-4QCQ].

1226 FORDHAM URB. L.J. [Vol. L

de Blasio era.

170

So why were city policymakers and legislators more

successful in pushing through mandates in 2019 than their predecessors in

the Bloomberg era? Part of the answer, we think, is political activity by

community-based interest groups in New York City.

171

A number of key political developments, both inside and outside of New

York City, laid the groundwork for performance mandates to finally pass in

2019. For starters, One City Built to Last was published on the very same

day in September of 2014 as the People’s Climate March, which brought

300,000 climate activists pouring into New York City streets.

172

The

People’s Climate March, which occurred ahead of a UN climate summit in

New York,

173

was hailed as the “biggest ever call to action on climate

change.”

174

After the march, pressure from grassroots interest groups in the

city for GHG mandates began to coalesce.

175

A turning point in this regard

came in 2015 when ALIGN, an alliance of labor and community groups,

formed the Climate Works for All coalition and issued a report calling for

mandatory “energy use performance targets” for buildings.

176

The Alliance

saw mandatory targets for buildings as a way of addressing climate change

while also creating jobs in the city.

177

To them, mandatory building targets

were not only a climate policy, but also an economic and social policy that

would benefit low-income New Yorkers and people of color.

178

Retrofitting

buildings would increase demand for labor, and more efficient buildings

would reduce utility costs for their inhabitants. It was the perfect alignment

170. See John Lee, LINKEDIN, https://www.linkedin.com/in/john-lee-87771636/

[https://perma.cc/J5LK-24FU] (last visited Aug. 20, 2023); see Dan Zarrilli, LINKEDIN,

https://www.linkedin.com/in/danielzarrilli/ [https://perma.cc/3ZXU-83NU] (last visited July

30, 2023).

171. See generally ANZIA, supra note 41 (analyzing the impact of interest groups on local

governments); see also Kent E. Portney & Jeffrey M. Berry, The Impact of Local

Environmental Advocacy Groups on City Sustainability Policies and Programs, 44 P

OL’Y

STUD. J. 196, 201 (2016) (finding that environmental advocacy groups have influenced city

commitments to sustainability).

172. Melissa Davey et al., People’s Climate March: Thousands Demand Action Around

the World, THE GUARDIAN (Sept. 21, 2014),

https://www.theguardian.com/environment/live/2014/sep/21/peoples-climate-march-live

[https://perma.cc/63SN-W9TJ]; see also generally O

NE CITY: BUILT TO LAST, supra note 144

(announcing publication of One City Built to Last, which established the 80 x 50 goal, on

September 21, 2014).

173. Davey, et al., supra note 172.

174. O

NE CITY: BUILT TO LAST, supra note 144, at 1017.

175. See Cohen, supra note 149, at 14 (“The massive September 21st, 2014 People’s

Climate March set the developments [towards LL97] in motion.”).

176. Climate Works for All, supra note 49, at 10.

177. Id. at 9.

178. See id. at 4, 26.

2023] LOCAL ACTION, GLOBAL PROBLEM 1227

of their members’ climate and economic interests.

179

Sensing the growing

momentum behind mandates, mayoral staff deployed the experts to flesh out

an operational approach for reducing emissions from buildings. In 2015–

2016, the mayor’s office of sustainability created a “technical working

group” that included representatives from the real estate industry, building

engineers, and other experts, to establish bespoke data about the

opportunities for efficiently reducing building emissions in New York

City.

180

Trump’s election in late 2016 and his withdrawal from the Paris

Agreement greased the wheels further.

181

After Trump announced that the

U.S. would withdraw from the Paris Agreement, progressive Council

Member Jumaane Williams proclaimed that mandatory energy efficiency

standards for buildings were “one of the immediate ways New York City can

really lead” on reducing GHG emissions “and truly resist.”

182

Activists at

ALIGN used the Trump family’s real estate holdings in New York City as a

reason to mandate building energy improvements, warning that “[w]ithout

requiring significant energy use reductions at Trump Tower, Trump

International Hotel, Kushner’s 666 Fifth Avenue office tower, and others,

the city will not be able to meet its ambitious 80 x 50 goal.”

183

In short, by mid-2017, political momentum was moving quickly in the

direction of mandates. However, there were still disagreements between

various interest groups over the details that needed to be worked out.

ALIGN, for its part, praised de Blasio’s coming out for building performance

mandates but wanted to make sure that any such mandate would count

emissions from electricity used in buildings, not just fossil fuels burned on-

site.

184

They also insisted that tenants in rent regulated buildings would not

179. See id. at 11.

180. David Giambusso, Trump’s Paris Withdrawal Sparks New Push for Energy Mandates

in Buildings, POLITICO (June 19, 2017), https://alignny.org/press/trumps-paris-withdrawal-

sparks-new-push-for-energy-mandates-in-buildings/ [https://perma.cc/VL5Y-MZ2E]; see

also O

NE CITY BUILT TO LAST: TECHNICAL WORKING GROUP REPORT: TRANSFORMING NEW

YORK BUILDINGS FOR A LOW CARBON FUTURE (2016),

https://www.nyc.gov/assets/sustainability/downloads/pdf/publications/TWGreport_0421201

6.pdf [https://perma.cc/WV6S-F969] (last visited July 30, 2023).

181. See Giambusso, supra note 180; see also City Council Members Call on de Blasio to

Implement Stronger Energy Efficiency Standards, CITY & STATE N.Y. (June 8, 2017),

https://www.cityandstateny.com/politics/2017/06/city-council-members-call-on-de-blasio-

to-implement-stronger-energy-efficiency-standards/180549/ [https://perma.cc/RE4D-

LMWC].

182. City Council Members Call on de Blasio to Implement Stronger Energy Efficiency

Standards, supra note 181.

183. The Trump Family’s Dirty Buildings: A Major Climate Threat to NYC, ALIGN, at 4

(Mar. 2017), https://alignny.org/wp-content/uploads/2017/04/Trumps-Dirty-Buildings-

Report.pdf [https://perma.cc/J8H5-W495].

184. Id. at 2, 16.

1228 FORDHAM URB. L.J. [Vol. L

face any rent increases as a result of the mandates; such rent hikes could

harm low-income tenants.

185

Meanwhile, the Urban Green Council, a

nonprofit with connections to sustainably-minded real estate owners that

promotes building energy efficiency, produced a “consensus” report in

August 2018 including building owners and climate activists that

recommended that large buildings collectively be required to improve their

energy efficiency by 20% by 2030 with additional improvements to

follow.

186

As 2018 wore on, progressive Democrats scored eye-popping victories in

Democratic Party politics in the New York area. In June 2018, insurgent

progressive Alexandria Ocasio-Cortez unexpectedly defeated long-time

Democratic incumbent Joe Crowley in the Democratic primary for a federal

House seat covering the Bronx and Queens;

187

after she won, Ocasio-Cortez

urged Speaker Nancy Pelosi to introduce a resolution calling for a Green

New Deal to decarbonize the country.

188

In September primaries for state

offices, progressives defeated six moderate Democratic state senators who

had caucused with Republicans

189

and in the November election, the

Democrats took control of the New York State senate for “the first time in a

decade” after campaigning against Trump.

190

Climate activists in New York

185. See Press Release, Mayor de Blasio: NYC Will Be First City to Mandate that Existing

Buildings Dramatically Cut Greenhouse Gas Emissions, ALIGN (Sept. 14, 2017),

https://alignny.org/press/leading-advocate-for-greater-energy-efficiency-at-new-york-citys-

large-buildingsresponds-to-mayor-de-blasios-announcement-today/ [https://perma.cc/7TNN-

CNXQ]; see also The Only Way to Meet NYC’s Climate Targets: A Whole Building Approach

to Emissions, ALIGN (Oct. 30, 2017), https://alignny.org/resource/9748/

[https://perma.cc/YDF7-AL3G].

186. See URBAN GREEN COUNCIL, BLUEPRINT FOR EFFICIENCY: AN 80 X 50 BUILDINGS

PARTNERSHIP REPORT 10 (2018),

https://www.urbangreencouncil.org/content/projects/blueprint-efficiency-80x50-buildings-

partnership-report [https://perma.cc/WK98-FW29]; Who We Are, URBAN GREEN,

https://www.urbangreencouncil.org/who-we-are/ [https://perma.cc/6E7U-QEZ5] (last visited

July 30, 2023).

187. See Shane Goldmacher & Jonathan Martin, Alexandria Ocasio-Cortez Defeats Joseph

Crowley in Major Democratic House Upset, N.Y. TIMES (June 26, 2018),

https://www.nytimes.com/2018/06/26/nyregion/joseph-crowley-ocasio-cortez-democratic-

primary.html [https://perma.cc/9TP7-PZCT].

188. See David Roberts, Alexandria Ocasio-Cortez is Already Pressuring Nancy Pelosi on

Climate Change, VOX (Nov. 15, 2018), https://www.vox.com/energy-and-

environment/2018/11/14/18094452/alexandria-ocasio-cortez-nancy-pelosi-protest-climate-

change-2020 [https://perma.cc/A533-DT62].

189. See Jen Kirby, The Primary Defeat of New York’s “Independent Democrats,”

Explained, VOX (Sept. 14, 2018), https://www.vox.com/policy-and-

politics/2018/9/14/17859200/idc-new-york-primaries-democrats-biaggi-klein

[https://perma.cc/MXR3-PB4H].

190. Vivian Wang, Democrats Take Control of New York Senate for First Time in Decade,

N.Y. TIMES (Nov. 7, 2018), https://www.nytimes.com/2018/11/07/nyregion/democrat-ny-

senate.html [https://perma.cc/N86C-52GJ].

2023] LOCAL ACTION, GLOBAL PROBLEM 1229

City emphasized the connection between building mandates and standing up

to Trump, linking their goal with the broader wave of popular progressive

politics. Testifying at a December 2018 City Council Environmental

Protection Committee hearing on the proposed legislation, grassroots

organizer Pete Sikora said that “[w]ith Trump in office, this legislation rises

to the challenge of the climate crisis where the federal government is

destroying the progress the world needs at the exact moment when there’s

no time left.”

191

“The world will be watching this bill,” he continued. “It

will be a model for bold action worldwide . . . . it truly is a green new deal

for New York City.”

192

Sikora had spent the prior two years working on climate change at New

York Communities for Change, an ideologically progressive multiracial

community group in New York City that works on a range of issues,

including housing, racial justice, and immigration, that are often more

tangible to people than climate.

193

A community organizer who went to

Cornell and has an MBA from New York University, Sikora started his

career with New York Public Interest Research Group (an activist group built

up in the 1970s by one of the original “Nader Raiders”),

194

and worked for

the Communications Workers of America as a labor organizer for over nine

years before he joined New York Communities for Change.

195

Sikora’s

191. Testimony of Pete Sikora, Transcript of the Minutes of the Committee on

Environmental Protection, New York City Council (Dec. 4, 2018).

192. Id.

193. See generally About NYCC, N.Y. CMTY’S. FOR CHANGE,

https://www.nycommunities.org/about [https://perma.cc/C5KU-4F82] (last visited July 30,

2023).

194. See Douglas H. Phelps, Donald Ross, 1943–2022, PIRG (May 15, 2022),

https://pirg.org/articles/donald-ross-1943-2022/ [https://perma.cc/7LLY-GMQG]. On

Nader’s role in encouraging the establishment of Public Interest Research Groups on college

campuses, see S

ABIN, supra note 42, at 88.

195. Pete Sikora, LINKEDIN, https://www.linkedin.com/in/pete-sikora-6b88851/

[https://perma.cc/MCB2-D9RM] (last visited Sept. 10, 2023); Pete Sikora Talks About His

Campaign for the 52nd AD Seat, B

ROOKLYN HEIGHTS BLOG (Aug. 28, 2014),

http://brooklynheightsblog.com/archives/69718 [https://perma.cc/X99H-RRTH].

Sikora had supported requiring buildings to invest in energy efficiency for several years.

In 2014, Sikora ran unsuccessfully in the Democratic primary for a seat representing Brooklyn

in the New York State assembly. See Will Brunelle & Josefa Velasquez, Simon Defeats Sikora

for Brooklyn Assembly Seat, P

OLITICO (Sept. 9, 2014), https://www.politico.com/states/new-

york/albany/story/2016/05/simon-defeats-sikora-for-brooklyn-assembly-seat-049230,

[https://perma.cc/232P-ATXV]. In campaigning, he stated that one of his goals was to get the

state to pass a law requiring buildings to invest in increasing their energy efficiency as

Bloomberg had backed away from doing in New York City. See Pete Sikora Talks About His

Campaign for the 52nd AD Seat, supra; Will Bredderman, WFP Will Back Pete Sikora Over

Jo Anne Simon in Race for Joan Millman Seat, O

BSERVER (June 12, 2014),

https://observer.com/2014/06/wfp-will-back-pete-sikora-over-jo-anne-simon-in-race-for-

joan-millman-seat/ [https://perma.cc/KHR8-WSGA].

1230 FORDHAM URB. L.J. [Vol. L

climate work seems to be premised on the theory that in a deep blue city in

a blue state such as New York City, where a majority of the residents are

members of racial and ethnic minorities,

196

a multiracial coalition comprised

of people of color and white progressives that targets key decision-makers

can persuade the city government to adopt climate policy even if the coalition

has a relatively small number of active members at any given time.

197

Sikora

recognizes that activists like him can exert such power because local

Democratic politicians in early 21st century New York paid attention to

groups that can credibly claim to influence the outcomes in the low-turnout

Democratic primaries that largely determine who wins political office in the

city.

198

Under Sikora’s theory of social change, local climate laws emerge

from local interest groups wielding — or threatening to wield — influence

in Democratic primaries, not the Democratic leanings of the majority of the

city’s voters, most of whom rarely vote in Democratic primaries or local

general elections.

199

196. See Pete Sikora (@PeteSikora1), TWITTER (Feb. 10, 2022, 12:17 PM),

https://twitter.com/PeteSikora1/status/1491823692531351553 [https://perma.cc/V228-

DW9W] including Pete Sikora, How #GasFreeNYC Won a Gas Ban in New York City,

https://twitter.com/PeteSikora1/status/1491823692531351553 [https://perma.cc/T2CU-

U55H] (“We flipped the usual script, where climate action can be perceived as well-

intentioned, but also out of touch or even elitist. We made this fight more compelling through

a multi-racial, justice-oriented coalition led by groups based in working class Black/Latino

communities. We highlighted that a gas ban would create jobs and cut air pollution, especially

in low-income communities of color.”). On the demographics of New York City, see Quick

Facts New York City,

U.S. CENSUS BUREAU,

https://www.census.gov/quickfacts/newyorkcitynewyork [https://perma.cc/46RG-ZK23]

(last visited July 30, 2023).

197. See Sikora, supra note 196 and accompanying text.

198. See id. On his history of the successful campaign to persuade the New York City

Council to ban natural gas connections in new buildings, Sikora states: “The campaign

combined activists from communities of color with predominantly white progressive climate

activists. In a politically ‘blue’ place, that combination packs a real punch: it’s an electoral

coalition that can dominate a Democratic party primary. In blue places, most legislators and

mayors are politically vulnerable only in primaries.” Id.

199. See, e.g., Rachel Holliday Smith, Turnout in NYC’s Primary Was Tragically Low —

Again. Here are 6 Experts’ Ideas on How to Fix That, THE CITY (Aug. 24, 2022),

https://www.thecity.nyc/2022/8/24/23320921/turnout-new-york-primary-low-voting-rights

[https://perma.cc/TU2B-NK45] (noting that New York was “a city with years of notoriously

low voting rates under its belt”); In NYC’s 2021 Election, Voter Turnout was Low, But

Democrat’s Spirit Was High, T

HE TABLET (Nov. 4, 2021), https://thetablet.org/new-york-city-

2021-election-low-voter-turnout/ [https://perma.cc/WS5Q-JKDD] (“The news analysis

concluded that the voter participation rate in 2021 was ‘in line with the previous abysmal

turnouts posted in every mayoral election since 2005.’”); Frederick P. Schaffer, Low Voter

Turnout in NYC Elections is a Problem, and It Can Be Solved, G

OTHAM GAZETTE (Jan. 12,

2022), https://www.gothamgazette.com/130-opinion/11004-low-voter-turnout-nyc-

elections-problem-can-solve [https://perma.cc/D5XY-9X3V].

Sikora’s theory that interest groups can prompt the adoption of local environmental policy

is consistent with the findings of academics that interest groups influence local policy under

2023] LOCAL ACTION, GLOBAL PROBLEM 1231

The Climate Works for All coalition that advocated for building

performance mandates embodied the multiracial model in which Sikora

believes; it included ALIGN, New York Communities for Change, District

Council 37, the largest public sector union in the city, WE ACT for

Environmental Justice and the New York City Environmental Justice

Alliance, among others.

200

The coalition’s ability to credibly assert that

representatives of low-income communities, people of color, and a

prominent local union supported the bill likely signaled to some Council

Members that it was safe to support it.

The mainstream environmental advocacy groups like NRDC and the

League of Conservation Voters were not part of the Climate Works for All

coalition. While supportive of the bill’s goals, some of these more well-

established groups had different visions for what the mandates should look

like. They also seemed to espouse a different theory of change than Sikora

and his allies, continuing to believe that collaboration with industry players

was key. As a case in point, at a 2018 hearing of the City Council Committee

on Environmental Protection on a draft of the legislation to establish the

mandates, NRDC testified jointly with the Real Estate Board of New York

(REBNY), the main group representing building owners targeted by the

certain conditions. See ANZIA, supra note 41. For a study finding that environmental advocacy

groups have influenced city commitments to sustainability, see generally Portney & Berry,

supra note 171.

200. See e.g., Climate Works for All, supra note 49 (identifying as authors ALIGN, New

York City Environmental Justice Alliance, New York City Central Labor Council, BlueGreen

Alliance, American Federation of Labor and the Congress of Industrial Organizations);

Testimony of New York Communities for Change, Written Testimony before the Committee

on Environmental Protection, New York City Council (Dec. 4, 2018) (identifying New York

Communities for Change as a member of the Climate Works for All coalition); Testimony of

N.Y.C. Environmental Justice Alliance, Written Testimony before the Committee on

Environmental Protection, New York City Council (Dec. 4, 2018) (identifying the Alliance

as a co-founder of “the Climate Works for All coalition with Align and the New York City

Labor Congress”); Testimony Jon Forster, Co-Chair, DC37 Climate Justice Committee,

Written Testimony before the Committee on Environmental Protection, New York City

Council (Dec. 4, 2018) (supporting 1253, stating: “We have been working with CW4A

Coalition on this Legislation for 3 years.”); Testimony of Aditi Varshneya on Intro 1253,

Community organizer at WE ACT for Environmental Justice, Written Testimony before the

Committee on Environmental Protection, New York City Council (Dec. 4, 2018) (identifying

WE ACT as a member of the coalition); see generally NY

WORKING FAMILIES. ALIGN-NY

& NYCC, CLIMATE WORKS FOR ALL, CONSTRUCTING A GREENER NEW YORK, BUILDING BY

BUILDING

https://www.nyclimateworks.org/_files/ugd/f10969_53e457d2f3fd46d588fc226fe6b244b2.p

df [https://perma.cc/MMM6-FJS]; About Us, DISTRICT COUNCIL 37,

https://www.dc37.net/about/whoweare/ [https://perma.cc/F76G-VVPR] (last visited Aug. 1,

2023) (“DC 37 is New York City's largest public employee union.”).

1232 FORDHAM URB. L.J. [Vol. L

proposed law.

201

The largest private sector union in the city, Service

Employees International Union Local 32BJ, which represents building

employees such as doorpersons who often work for REBNY members, also

testified alongside REBNY and NRDC.

202

NRDC’s testimony with REBNY

may have reflected a pragmatic desire to craft a policy that industry could

effectively implement, while also advancing the goal that NRDC shared of

equitably decarbonizing buildings.

203

During the Bloomberg era,

collaborating with industry might have seemed like a strategy for success.

REBNY may also have made it relatively palatable for NRDC to

collaborate with them this time around because they did not outright oppose

the bill or try to strike down the bill in its entirety (at least not publicly).

204

Instead, they took aim at specific aspects of the draft bill. REBNY was

particularly against the idea of exempting all rent-regulated buildings from

the performance mandates,

205

which was a key demand of members of the

201. See generally Transcript of the Minutes of the Committee on Environmental

Protection, New York City Council (Dec. 4, 2018) (referring to joint testimony of REBNY,

NRDC, and 32BJ).

202. See id. On 32BJ’s approach to Local Law 97, see Noah Berman, Powerful Head of

Building Workers Union Takes on Critics, Explains Positions, GOTHAM GAZETTE (June 13,

2019), https://www.gothamgazette.com/state/8594-powerful-figueroa-building-workers-

union-32bj-takes-on-critics [https://perma.cc/A89E-VGX2].

It is not unusual for unions to align with their employers in debates about environmental

regulation; costly regulations could affect the bottom lines of employers and their employees.

For example, in a 1970 book, Esposito and Silverman maintained that coal companies and the

United Mine Workers of America funded the same lobby group to oppose environmental

regulation.

LARRY G. ESPOSITO & JOHN C. SILVERMAN, RALPH NADER’S STUDY GROUP

REPORT ON AIR POLLUTION – VANISHING AIR 279 (1970). Esposito & Silverman’s book was

the report of Ralph Nader Task Force on air pollution; Nader was highly critical of the United

Mine Workers of America as corrupt, too close to coal mine operators, and not working to

protect coal miners. S

ABIN, supra note 42, at 60–65. For another example of unions opposing

environmental regulations that would impose costs on their employers, see W

ILLIAM BOYD,

THE SLAIN WOOD: PAPERMAKING AND ITS ENVIRONMENTAL CONSEQUENCES IN THE AMERICAN

SOUTH 210 (2015) (describing the opposition of labor unions to environmental regulations of

the pulp and paper industry).

203. Not referring specifically to the groups’ New York City offices, historian Paul Sabin

observes that public interest environmental groups such as NRDC and the Environmental

Defense Fund that were founded in the late 1960s and early 1970s moved “away from a more

movement-centered approach to social change. They embraced professional expertise, elite

knowledge production, and inside-the-Beltway strategies, rather than mass protests and

political action.” S

ABIN, supra note 42, at 103. NRDC and EDF established “membership

programs” but primarily to help with litigation and funding. Id. at 105, 127.

204. See generally Testimony of Carl Hum, General Counsel & Senior Vice President,

Real Estate Board of New York, Written Testimony before the Committee on Environmental

Protection, New York City Council (Dec. 4, 2018).

205. See Testimony of Carl Hum, General Counsel & Senior Vice President, Real Estate

Board of New York, Transcript of the Minutes of the Committee on Environmental

Protection, New York City Council 104–05 (Dec. 4, 2018); see also Testimony of Carl Hum,

General Counsel & Senior Vice President, Written Testimony before the Committee on

2023] LOCAL ACTION, GLOBAL PROBLEM 1233

Climate Works for All coalition, who wanted to protect low-income tenants

from rent hikes.

206

Real estate officials opposed exemptions for rent

regulated housing because they believed that if “too many types of buildings

were given exemptions. . . .[it would place] an undue burden for reducing

the city’s GHG output on the remaining buildings.”

207

NRDC and 32BJ

joined REBNY in opposing the exemption for rent regulated exemptions.

208

The final bill that was passed in 2019 exempted all buildings with one or

more rent-regulated units from having to meet the emissions caps.

209

In a

Environmental Protection, New York City Council (Dec. 4, 2018) (“REBNY shares other

concerns, in particular, the bill’s exclusion of buildings with at least one rent-regulated unit

which effectively means that over a third of GHG emissions from buildings over 25,000 sf

will not be addressed.”); see also Neuman, supra note 163 (“Real estate industry executives

say that while they support reducing emissions, they believe too many types of buildings were

given exemptions, placing an undue burden for reducing the city’s greenhouse gas output on

the remaining buildings.”).

206. See, e.g., Testimony of Brett Thomason, Written Testimony before the Committee on

Environmental Protection, New York City Council (Dec. 4, 2018); Testimony of N.Y.C.

Environmental Justice Alliance, Written Testimony before the Committee on Environmental

Protection, New York City Council 1 (Dec. 4, 2018).

207. Neuman, supra note 163.

208. See Testimony of David Cohen, Transcript of the Minutes of the Committee on

Environmental Protection, New York City Council 105–07 (Dec. 4, 2018); see also

Testimony of Lindsay Robbins, Transcript of the Minutes of the Committee on Environmental

Protection, New York City Council 109–10 (Dec. 4, 2018). On NRDC’s reasons for opposing

the exemption from the caps of rent regulated buildings, see Testimony of Donna De

Costanzo, Director, Eastern Region, Climate and Clean Energy Program, Natural Resources

Defense Council, Written Testimony before the Committee on Environmental Protection,

New York City Council 60 (Dec. 4, 2018) (“We join others in voicing concern over the bill’s

blanket exemption of buildings with a least one rent-regulated unit. The City will not be able

to achieve its greenhouse gas reduction goals with this exclusion. The exemption directly

contradicts the conclusion made by the Mayor’s Technical Working Group and reiterated by

the Urban Green 80x50 Buildings Partnerships report that in order to achieve citywide GHG

reductions of 40% by 2030, buildings of all types and sizes must participate. With this

exemption, the majority of the burden of meeting our emissions reduction goals from

buildings will rest upon less than 40% of New York City’s total building stock — and over a

third of the GHG emissions that come from buildings over 25,000 square feet will not be

addressed. It is also important that these buildings and tenants get the benefits of energy

efficiency. These are the buildings that often need energy efficiency upgrades the most and

these are the tenants that would benefit most from lower energy and operating costs, and better

functioning apartments.”). NRDC supported requiring that rent regulated buildings

implement “low-cost prescriptive measures” as had been recommended by the Urban Green

Council’s 2018 consensus report Blueprint for Efficiency. Id. The New York League of

Conservation Voters took a similar position to NRDC on the importance of including rent-

regulated buildings and similarly supported requiring these buildings to implement low-cost

prescriptive measures. See Testimony of Adriana Espinoza, New York City Program Director,

New York League of Conservation Voters, Written Testimony before the Committee on

Environmental Protection, New York City Council (Dec. 4, 2018).

209. N.Y.C., N.Y., L

OCAL LAW NO. 97 §§ 5–6 (2019) (amending N.Y.C., N.Y., ADMIN.

CODE to add §§ 28-320, 28-321). After New York State passed amendments to rent regulation

in 2019 that protected tenants against rent increases for capital improvements, the New York

City Council amended Local Law 97 to circumscribe the buildings excluded from the caps to

1234 FORDHAM URB. L.J. [Vol. L

provision supported by ALIGN and New York Communities for Change,

among others, the law requires these buildings to implement low-cost

measures to increase energy efficiency that would not meaningfully increase

rents.

210

Real estate’s power was clearly on the wane in 2019.

211

With

progressive activists electrified and Trump symbolizing for many the

excesses of the New York City real estate industry, the time was ripe to

buildings “in which more than 35% of dwelling units” are rent stabilized. See Housing

Stability & Tenant Protection Act of 2019, N.Y. STATE HOMES & COMM. RENEWAL (Oct. 2,

2019), https://hcr.ny.gov/system/files/documents/2021/08/rent-laws-overview-english-10-

2019.pdf [https://perma.cc/S9BU-DFV3]; N.Y.C., N.Y., L

OCAL LAW NO. 116 § 1 (2020).

210. While not subject to the emissions caps, buildings with large numbers of rent

regulated units are instead required to implement a limited number of prescriptive upgrades

such as “[r]epairing all heating system leaks” and “[i]nsulating pipes for heating and/or hot

water.” N.Y.C., N.Y., ADMIN. CODE § 28-321.2.2. The original version of Local Law 97 did

not mandate any penalties for non-compliance with these prescriptive upgrades. N.Y.C.,

N.Y.,

ADMIN. CODE § 28-321.4 (“Penalties that may be assessed for violations of section 28-321.2

shall be determined by department rule.”).

The compromise provision requiring that rent regulated buildings implement a list of

prescribed measures is consistent with the recommendation in the Urban Green Council’s

2018 consensus report “Building for Efficiency” that rent stabilized apartment buildings be

required to implement “low-cost, energy-saving measures that” would not trigger rent

increases under New York State rent regulation law, “instead of the percent reductions

applicable to other sectors.” U

RBAN GREEN COUNCIL, BLUEPRINT FOR EFFICIENCY: AN 80 X 50

BUILDINGS PARTNERSHIP REPORT, supra note 186, at 16. In their testimony in December 2018

to the City Council Environmental Protection Committee, NRDC and 32BJ expressed support

for requiring these low-cost prescriptive measures until the advisory board created by the law

could come up with another approach to including the rent stabilized apartment stock. See

Testimony of Donna De Costanzo, Director, Eastern Region, Climate and Clean Energy

Program, Natural Resources Defense Council, Written Testimony before the Committee on

Environmental Protection, New York City Council (Dec. 4, 2018); Testimony of David

Cohen, Political Manager for SEIU 32BJ, Written Testimony before the Committee on

Environmental Protection, New York City Council (Dec. 4, 2018); see also Testimony of

John Mandyck, CEO, Urban Green Council, Written Testimony before the Committee on

Environmental Protection, New York City Council 4 (Dec. 4, 2018). ALIGN — and fellow

Climate Works for All coalition members New York Communities for Change and the New

York City Environmental Justice Alliance — also expressed support in their testimony for

such prescriptive measures as an interim approach until state rent regulation laws were

amended to protect tenants against rent hikes to offset the costs of decarbonizing buildings.

See Testimony of Brett Thomason, ALIGN on Intro 1253, Written Testimony before the

Committee on Environmental Protection, New York City Council (Dec. 4, 2018); see also

Testimony of New York Communities for Change, Written Testimony before the Committee

on Environmental Protection, New York City Council (Dec. 4, 2018); see also Testimony of

N.Y.C. Environmental Justice Alliance, Written Testimony before the Committee on

Environmental Protection, New York City Council (Dec. 4, 2018).

211. In addition to the passage of Local Law 97 in New York City in 2019, another

indication of the waning political power of major property owners that year was the passage

of new tenant protection laws at the State level, which significantly increased protections for

tenants in rent-regulated and market-rate housing in New York City and other parts of the

State. See generally New York Housing Stability and Tenant Protection Act of 2019, 2019

N.Y. SB 6458.

2023] LOCAL ACTION, GLOBAL PROBLEM 1235

mandate performance standards aligned with the preferences of the left flank

of the local environmental movement.

Consistent with the priorities of the Climate Works for All coalition, Local

Law 97 explicitly incorporates environmental justice concerns. As

mentioned above, to protect low-income tenants from rent increases, the law

exempts properties with large numbers of rent regulated tenants from the

emissions caps, while providing these tenants with some benefits by

requiring that the owners of their buildings implement a series of low-cost

energy efficiency measures.

212

Local Law 97 requires the creation of an

advisory board to oversee implementation of the law and requires that

environmental justice organizations be represented on that board in addition

to advocates from traditional environmental groups.

213

Strikingly, the law

calls for two environmental justice representatives as contrasted with “one

building owner or manager” to participate in the advisory board.

214

This is

a marked change in tenor from the Bloomberg era. Whereas the Bloomberg

administration went through pains to collaborate with real estate, the de

Blasio administration and the city council that was in office during the

Trump presidency seemed concerned with other stakeholders.

215

212. N.Y.C., N.Y., ADMIN. CODE § 28-320.1; N.Y.C., N.Y., ADMIN. CODE § 28-321.2.2;

supra notes 209–210 and accompanying text.

213. N.Y.C., N.Y., A

DMIN. CODE § 28-320.2.1 (“The mayor shall appoint one architect,

one operating engineer, one building owner or manager, one public utility industry

representative, one environmental justice representative, one business sector representative,

one residential tenant representative, and one environmental advocacy organization

representative. The speaker shall appoint one architect, one stationary engineer, one

construction trades representative, one green energy industry representative, one residential

tenant representative, one environmental justice organization representative, one

environmental advocacy representative and one not for profit organization representative.”

(emphasis added)).

214. Id.

215. Notably, environmental justice concerns have continued to be prominent in local

climate politics since Mayor de Blasio left office. With respect to Local Law 97,

environmental justice advocates, joined with mainstream environmental advocates, were

influential in steering city officials away from permitting emissions trading under the law,

which real estate interests had once hoped would be allowed. See Ciara Long, NYC Could

Soften Local Law 97’s Controversial Fine Structure, B

ISNOW (Apr. 14, 2022),

https://www.bisnow.com/new-york/news/sustainability/nyc-city-council-hints-at-flexibility-

on-local-law-97-compliance-112619 [https://perma.cc/TMG2-K9RW]; see also Testimony

of Carl Hum, Real Estate Board of New York, Written Testimony before the Committee on

Environmental Protection, New York City Council (Dec. 4, 2018). More generally, the office

that catalyzed discussions around Local Law 97, which was once called the Mayor’s Office

of Sustainability, was renamed the “Mayor’s Office of Climate and Environmental Justice” at

the start of 2022 under Mayor Eric Adams. There are many possible explanations for why

environmental justice concerns have become more central to local climate policies and

politics during the past few years, but one plausible theory is that “[a]s climate change’s

effects became more visible in the U.S., it has also become clearer that those effects are

disproportionately hitting minority communities.” Alejandra Borunda, The Origins of

1236 FORDHAM URB. L.J. [Vol. L

Mechanically, Local Law 97 embodies a traditional approach to

environmental regulation. It imposes regulatory requirements on buildings

without incorporating economic ideas popularized at the federal and state

levels since the 1990s about allowing pollution sources to re-allocate

responsibility for achieving pollution reductions among themselves to lower

the cost of achieving the environmental objective.

216

The law works as

follows: buildings are grouped into different categories based on their type

of use (multifamily residential, museums, financial offices, etc.).

217

Each

building type is permitted to emit up to a specified amount of carbon dioxide

equivalent (CO

e) per square foot.

218

For example, laboratories are allowed

to emit more than hotels per square foot.

219

A building’s limit (or cap) is

determined by multiplying the building’s square footage and the allowable

amount of CO

e for its type of use. Building owners that exceed their

emissions caps are liable to pay up to $268 per ton of excess emissions, an

amount intended to incentivize building upgrades.

220

To calculate a

building’s annual emissions, owners must multiply the total amount of

energy purchased by the carbon intensity coefficient that the city assigns for

the relevant type of energy (i.e., electricity procured from the grid, natural

gas, fuel oil, etc.).

221

The first compliance period runs from 2024 to 2029,

and the caps get progressively stricter until 2050.

222

The law also contains

Environmental Justice — and Why It’s Finally Getting the Attention It Deserves, NAT’L

GEOGRAPHIC (Feb. 24, 2021),

https://www.nationalgeographic.com/environment/article/environmental-justice-origins-

why-finally-getting-the-attention-it-deserves [https://perma.cc/A2SY-AQT5].

In New York

City, Hurricane Sandy made these disproportionate impacts abundantly clear. After Sandy, it

was much more difficult to develop a climate policy that ignored the vastly different

vulnerabilities of communities across New York City. See Cohen, supra note 149, at 12

(quoting an organizer with the New York Alliance for a Just Rebuilding as stating, “hopefully

we can learn from. . . .Sandy and from some upcoming storms and get to a place where can

really call ourselves resilient and we can really. . . .prioritize low-income folks and vulnerable

populations and make sure they’re okay after disaster”).

216. See generally Elizabeth Popp Berman, Thinking Like an Economist: How Efficiency

Replaced Equality in U.S. Public Policy (2022).

217. N.Y.C.,

N.Y., RULES OF THE CITY OF NEW YORK tit. 1, ch. 100, § 103-14(c)(3)(i)

(2022).

218. See N.Y.C., N.Y., Admin. Code § 28-320.3.1.

219. In late 2022, the city’s Department of Buildings promulgated an important set of

regulations for implementing Local Law 97 that specifies the “emissions factors” for different

“property types.” N.Y.C., N.Y., R

ULES OF THE CITY OF NEW YORK tit. 1, ch. 100, § 103-14(c)

(2022), https://a856-cityrecord.nyc.gov/RequestDetail?RequestId=20221213011

[https://perma.cc/3UKR-HSWH].

220. N.Y.C., N.Y., Admin. Code § 28-320.6.

221. N.Y.C., N.Y., R

ULES OF THE CITY OF NEW YORK tit. 1, ch. 100 § 103-14(c) (2022),

https://a856-cityrecord.nyc.gov/RequestDetail?RequestId=20221213011

[https://perma.cc/3UKR-HSWH].

222. See id.

2023] LOCAL ACTION, GLOBAL PROBLEM 1237

some flexibility mechanisms to lessen the burden on owners. Of particular

importance, if an owner exceeds the permissible amount of GHG emissions

per square foot, he can purchase renewable energy credits to offset the

emissions attributed to his energy use.

223

This loophole could reduce the

incentive for building owners to invest in building upgrades, and, as of early

2023, environmental advocates are seeking additional constraints on the use

of these credits to comply with the law.

224

D. Beyond Local Law 97

As was the case with the GGBP of the Bloomberg era, Local Law 97 may

be just the beginning of a wave of building performance standards in

progressive American cities. In fact, at the time of this writing, at least five

other cities had either passed or introduced legislation that sets some sort of

mandatory energy or emissions limits for buildings, including Washington,

D.C., which legislated its building performance standard before New York

City passed its law.

225

In an example of how local climate initiatives can

spur action at higher levels of government, one of the internal architects of

Local Law 97, Mark Chambers, became Senior Director for Building

Emissions and Community Resilience in the Biden administration’s Council

223. N.Y.C., N.Y., Admin. Code § 28-320.3.6.1.

224. Mariana Simões, Office Buildings Could Evade Energy Upgrades via ‘Giant

Loophole’ in NYC’s Climate Law, Environmentalists Warn, C

ITYLIMITS (Feb. 21, 2023),

https://citylimits.org/2023/02/21/office-buildings-could-evade-energy-upgrades-via-giant-

loophole-in-nycs-climate-law-environmentalists-warn/ [https://perma.cc/C5RA-35JK].

Notably, WE ACT’s testimony to the City Council Environmental Protection Committee

in December 2018 warned “against the inclusion of renewable energy credits as a method of

alternative compliance.” Testimony of Aditi Varshneya, Community Organizer for WE ACT

for Environmental Justice, Written Testimony before the Committee on Environmental

Protection, New York City Council (Dec. 4, 2018). WE ACT stated, “RECs do not improve

local environmental health, support a thriving local economy, or even sufficiently move the

needle on carbon reduction.”

225. See, e.g., Building Energy Reporting and Disclosure (BERDO), B

OS., MASS., CITY OF

BOS. CODE, ch. VII, §§ 7-2.1, 7-2.2, (Sept. 22, 2021); DENVER, COLO., Council Bill 21-1310

(2021); Building Energy Performance Standards (BEPS), St. Louis, Mo., Ordinance 71132

(Apr. 20, 2020); CleanEnergy D.C. Omnibus Amendment Act of 2018, D.C.

LAW 22-257, 66

D.C. REG. 1344 (2019); Chula Vista, Cal., Ordinance 3498 (Mar. 10, 2021). Bloomberg

Philanthropies helped to fund the development of the building performance standard in St.

Louis. See American Cities Climate Challenge, B

LOOMBERG PHILANTHROPIES,

https://www.bloomberg.org/environment/supporting-sustainable-cities/american-cities-

climate-challenge/ [https://perma.cc/T8ME-9YT9] (last visited July 31, 2023).

Several states have adopted building performance standards as well, including Colorado,

Maryland, and Washington. See INSTITUTE FOR MARKET TRANSFORMATIONS, COMPARISON OF

U.S. BUILDING PERFORMANCE STANDARDS (2023), https://www.imt.org/wp-

content/uploads/2022/06/06.22-BPS-Matrix.pdf [https://perma.cc/8E7C-E7BC].

1238 FORDHAM URB. L.J. [Vol. L

on Environmental Quality.

226

In this role, Chambers helped to form a

National Building Performance Standards Coalition to spur the adoption of

similar laws in cities and states throughout the country.

227

In December

2022, the Biden administration also adopted “the first-ever” performance

standards for federal buildings to increase energy efficiency and

electrification of these buildings.

228

There are some important differences between the forms that existing

building performance laws have taken. Arguably the most important

distinction is that some of the laws limit the amount of energy buildings can

use each year, while others limit the amount of GHG emissions they can

release.

229

This distinction is critical because the laws that limit GHG

emissions do not necessarily encourage energy efficiency.

230

This is a major

drawback given that building out the electricity grid more than is necessary

imposes significant economic and environmental costs,

231

even if all the

electricity in the grid comes from renewable sources.

But there are also some important commonalities between many of the

mandates. The same forces that have brought greater attention to the need

to incorporate equity considerations into climate change policy in New York

City are influencing local leaders in other major American cities. For

instance, both Boston and Washington, D.C. elevated community groups in

the process of developing their building performance standards and the

resulting laws prioritize investment in environmental justice communities.

232

The Boston mandate, for example, calls for fines and compliance payments

226. Mark Chambers, LINKEDIN, https://www.linkedin.com/in/mark-chambers-ra-

71793854/ [https://perma.cc/6KC6-PLSQ] (last visited July 31, 2023).

227. See id.

228. Fact Sheet: Biden-Harris Administration Announces First-Ever Federal Building

Performance Standard, Catalyzes American Innovation to Lower Energy Costs, Save

Taxpayer Dollars, and Cut Emissions, T

HE WHITE HOUSE (Dec. 7, 2022),

https://www.whitehouse.gov/briefing-room/statements-releases/2022/12/07/fact-sheet-

biden-harris-administration-announces-first-ever-federal-building-performance-standard-

catalyzes-american-innovation-to-lower-energy-costs-save-taxpayer-dollars-and-cut-

emissions/#:~:text=Today%20the%20Biden%2DHarris%20Administration,the%20Federal

%20government%20by%202030 [https://perma.cc/DB7C-VAFQ].

229. See Danielle Spiegel-Feld & Katrina M. Wyman, Building Better Building

Performance Standards, 52

ENVT’L L. REP. 10268, 10271–72 (2022).

230. See Simões, supra note 224.

231. See, e.g., Joseph G. Allen et al., Want to Phase Out Fossil Fuels? We Must

Fundamentally Change Our Buildings, WASH. POST (Sept. 26, 2022),

https://www.washingtonpost.com/opinions/2022/09/26/climate-carbon-fossil-fuel-energy-

efficiency/ [https://perma.cc/8F8S-FS72].

232. See Building Energy Reporting and Disclosure (BERDO) CITY OF BOS. CODE, ch. VII,

§ 7-2.2(g) (Sept. 22, 2021). Washington, D.C. also has a provision in its Clean Energy

Omnibus Act that requires that at least 30% of the funds go in part toward benefitting low-

income residents. CleanEnergy D.C. Omnibus Amendment Act of 2018, D.C.

LAW § 8-

1774.10(c)(12)(A)(i).

2023] LOCAL ACTION, GLOBAL PROBLEM 1239

that are collected under the program to be invested in environmental justice

projects.

233

And the particular projects that receive the investment will be

recommended by a Review Board, whose members come mostly from

community groups.

234

Coincident with the spread of local and state laws to require existing and

new buildings to decarbonize or improve their energy efficiency is the

emergence of local laws prohibiting newly constructed buildings from

including connections to natural gas infrastructure. The intent behind such

“natural gas bans” is to avoid perpetuating demand for natural gas in newly

built buildings that can often be electrified more cheaply than existing

buildings.

235

The first ban on new natural gas connections was passed by

Berkeley City Council in 2019, and a number of other local governments,

including New York City, quickly followed suit.

236

In 2021, at the end of

the de Blasio administration, the New York City Council legislated a ban on

natural gas connections in newly constructed buildings.

237

Using similar

tactics as it had employed to secure passage of LL97, New York

Communities for Change played a key role in the ten month campaign that

led to the ban, this time in coalition with New York Public Interest Research

Group and WE ACT for Environmental Justice.

238

These local laws to ban

natural gas in new buildings are part of a broader emerging trend towards

more aggressive local action to regulate emissions from buildings.

239

233. See Building Energy Reporting and Disclosure (BERDO) CITY OF BOS. CODE, ch. VII,

§ 7-2.2 (Sept. 22, 2021).

234. See BOS., MASS., CITY OF BOSTON CODE § 7-2.2(g); see also Emily Barkdoll, Boston

Passes Equitable Building Performance Standard, NRDC (Sept. 22, 2021),

https://www.nrdc.org/experts/emily-barkdoll/boston-passes-equitable-building-

performance-standard [https://perma.cc/GBM7-Q577].

235. See, e.g., Berkeley, Cal., Ordinance 7672-NS § 1 (“It is the intent of the council to

eliminate obsolete natural gas infrastructure and associated greenhouse gas emissions in new

buildings where all-electric infrastructure can be most practicably integrated, thereby

reducing the environmental and health hazards produced by the consumption and

transportation of natural gas.”).

236. See id.

237. See N.Y.C., N.Y., LOCAL LAW No. 154 s.1 (creating § 28-506.1) (2021); see also

Emilie Raguso, Berkeley First City in California to Ban Natural Gas in New Buildings,

BERKELEYSIDE (July 17, 2019), https://www.berkeleyside.org/2019/07/17/natural-gas-pipes-

now-banned-in-new-berkeley-buildings-with-some-

exceptions?gclid=EAIaIQobChMImtar3rai_gIVRmxvBB1S5wjREAAYAiAAEgKIMfD_B

wE [https://perma.cc/CAN8-BU8A].

238. See Sikora, supra note 196.

239. See Benjamin Storrow, Cities Look to Natural Gas Bans to Curb Carbon Emissions,

E&E NEWS (Nov. 25, 2019), https://www.scientificamerican.com/article/cities-look-to-

natural-gas-bans-to-curb-carbon-emissions/ [https://perma.cc/9A6Q-NS4S] (noting a shift in

local climate action “toward the carbon footprint associated with heating and cooling

buildings,” and noting the “newest trend in the local fight against climate change: bans on

natural gas hookups in new buildings”).

1240 FORDHAM URB. L.J. [Vol. L

However, the local laws have encountered opposition, including instances

of state preemption of local government bans on natural gas.

240

In April

2023, in litigation brought by the California Restaurant Association, a panel

of the Ninth Circuit Court of Appeals held that Berkeley’s ban is preempted

by the federal Energy Policy and Conservation Act.

241

Nonetheless, in

another example of a local initiative acting as precursor to state legislation,

in May 2023, New York Communities for Change, Food & Water Watch,

WE ACT for Environmental Justice and others persuaded New York State

to follow New York City and adopt a state ban on natural gas connections in

new buildings.

242

IV. W

ILL IT HOLD?

Both PlaNYC and Local Law 97 emerged during times of economic

bounty. Bloomberg even made reference to the city’s good fortune in his

speech in 2007 announcing the launch of PlaNYC: “Our economy is

humming, our fiscal house is in order and our near-term horizon looks

bright,” the mayor said. “If we don’t act now, when?”

243

As for Local Law

240. SEE NATHANIEL R. MATTISON, GUARINI CTR. ON ENV’T, ENERGY & LAND USE LAW,

BEYOND GAS BANS: ALTERNATIVE PATHWAYS TO REDUCE BUILDING EMISSIONS IN LIGHT OF

STATE PREEMPTION LAWS 5 (Oct. 2022); see also Brad Plumer & Hiroko Tabuchi, How

Politics Are Determining What Stove You Use, N.Y. Times (Dec. 16, 2021),

https://www.nytimes.com/2021/12/16/climate/gas-stoves-climate-change.html

[https://perma.cc/6GWT-CUKF].

241. See Cal. Rest. Ass’n v. City of Berkeley, 65 F.4th 1045, 1048 (9th Cir. 2023); see also

The Times Editorial Board, Polluters Keep Trying to Block Gas Bans. California Cities

Shouldn’t Be Deterred, L.A.

TIMES, (Apr. 30, 2023),

https://www.latimes.com/opinion/story/2023-04-30/natural-gas-ban-decision-fossil-fuels-

buildings [https://perma.cc/VU5U-TDHZ]; see also Ari Plachta, SoCalGas Backed Case

against Berkeley Gas Ban and Asked Customers to Pay, Advocates Say, S

ACRAMENTO BEE

(Apr. 27, 2023), https://www.sacbee.com/news/politics-government/capitol-

alert/article274559671.html.

242. See, e.g., Liam Stack, New York to Ban Natural Gas, Including Stoves, in New

Buildings, N.Y. TIMES (Apr. 28, 2023), https://www.nytimes.com/2023/04/28/nyregion/gas-

stove-ban-ny.html [https://perma.cc/6NBB-5GHZ]; David Iaconangelo, N.Y. Weighs East

Coast’s First Statewide Building Gas Ban, E&E

NEWS (April 28, 2023),

https://www.eenews.net/articles/n-y-weighs-east-coasts-first-statewide-building-gas-ban/

[https://perma.cc/J4DJ-8KB7]; New York State To Ban Fossil Fuels in New Buildings: State

Law Banning New Oil, Gas Hookups Is First in Nation, F

OOD & WATER WATCH (May 2,

2023), https://www.foodandwaterwatch.org/2023/05/02/new-york-state-to-ban-fossil-fuels-

in-new-buildings/ [https://perma.cc/W8FD-5ZYJ]; Anna Phillips, N.Y. Ditches Gas Stoves,

Fossil Fuels in New Buildings in First Statewide Ban in U.S., W

ASH. POST (May 3, 2023),

https://www.washingtonpost.com/climate-environment/2023/05/03/newyork-gas-ban-

climate-change/ [https://perma.cc/2A73-G2Y8].

243. See Lueck, supra note 107.

2023] LOCAL ACTION, GLOBAL PROBLEM 1241

97, the City Council passed the law towards the end of a period of more than

ten straight years of economic growth.

244

Within a year of Local Law 97’s passage in 2019, the COVID-19 crisis

threw the local economy into a tailspin, with unemployment rates soaring

and property values plummeting.

245

More than two years later, the economy

still has not recovered and officials forecast substantial budgetary shortfalls

for the fiscal year that begins in 2023.

246

Business tax revenue and personal

income tax revenues are expected to decline, and the city may need to

provide an influx of cash to meet pension commitments.

247

The predictions

are so dire that in September 2022, a veteran reporter for the New York Times

declared that the city was “teetering on the brink of a severe budget crisis.”

248

With such strong economic headwinds facing the city, one cannot help

but wonder whether the city will implement its climate commitments,

especially Local Law 97. Property owners are exerting considerable

pressure to weaken the law.

249

Amid a housing affordability crisis,

residential property owners are concerned that they will not be able to

finance retrofits to their buildings to comply with the law and will face large

fines.

250

Some of the owners of residential and commercial properties

244. See GDP of the New York Metro Area from 2001 to 2021, STATISTA (Jan. 2, 2023),

https://www.statista.com/statistics/183815/gdp-of-the-new-york-metro-area/

[https://perma.cc/3AV2-B2YZ]; see also Press Release, N.Y.S. Comptroller, New York City

Economy Continues to Set Records: City Added 820,000 Jobs from 2009 to 2018 (Apr. 17,

2019), https://www.osc.state.ny.us/press/releases/2019/04/new-york-city-economy-

continues-set-records [https://perma.cc/UEW3-AA8A].

245. See generally Jeffrey P. Cohen et al., The Impact of the Coronavirus Pandemic on

New York City Real Estate: First Evidence, 62 J. REG. SCI. 858 (2022).

246. See Comments on New York City’s Fiscal Year 2023 Adopted Budget, BRAD LANDER,

N.Y.C. COMPTROLLER, (Aug. 24, 2022), https://comptroller.nyc.gov/reports/comments-on-

new-york-citys-fiscal-year-2023-adopted-budget/ [https://perma.cc/A7K8-CVBP].

247. See Dana Rubinstein, New York City Faces Potential Fiscal Crisis as $10 Billion

Deficit Looms, N.Y. TIMES (Sept. 19, 2022),

https://www.nytimes.com/2022/09/19/nyregion/budget-crisis-economy-nyc.html

[https://perma.cc/ZRF2-M9PE].

248. Id.

249. Climate Tech Industry Pushes to Keep Local Law 97 Intact, HABITAT (Aug. 14, 2023),

https://www.habitatmag.com/Publication-Content/Green-Ideas/2023/2023-August/Climate-

Tech-Industry-Pushes-to-Keep-Local-Law-97-Intact [https://perma.cc/PA4E-CJGC]. There

are countervailing economic interests at play as well: by the end of 2021, the energy efficiency

sector in New York State, which focuses on building energy retrofits, had still not fully

recovered the jobs that were lost during the COVID-19 pandemic. See N.Y.

STATE ENERGY

RSCH. & DEV. ASS’N, NEW YORK CLEAN ENERGY INDUS. REP. (Dec. 2022),

https://www.nyserda.ny.gov/About/Publications/New-York-Clean-Energy-Industry-Report

[https://perma.cc/BX8A-NXTA]. Weakening Local Law 97 would presumably deal a blow to

this sector by reducing demand for retrofits.

250. See Stefanos Chen & Winston Choi-Schagrin, What’s Holding Up New York’s

Climate Progress? Apartment Buildings., N.Y. TIMES (Mar. 10, 2023),

https://www.nytimes.com/2023/03/10/nyregion/greenhouse-gas-law-nyc.html

1242 FORDHAM URB. L.J. [Vol. L

subject to the emissions caps in the law have launched a Hail Mary legal

challenge to Local Law 97 on preemption and other grounds.

251

While there

are no indications that the city council plans to repeal LL97 entirely, the

administration of Mayor Eric Adams has sent conflicting signals about

whether it will strictly enforce the law.

252

After a council member introduced

legislation in 2022 to exempt a recycling facility from having to meet the

law’s targets, Mayor Adams appeared to support the move: “We’re going to

make sure that we’re not doing things that hurt businesses,” Adams said.

“[S]o we’re excited to see the council person’s bill to see how we can

[https://perma.cc/S49N-76DC] (“[M]onths before compliance begins, a mix of real estate

interest groups are lobbying to delay the process or carve out exemptions, claiming that the

requirements are too burdensome for residential boards with limited funding.”); see also Steve

Cuozzo, Loony ‘Environmental’ Mandates Will Kill NYC’s Middle-Class Housing, N.Y. POST

(Mar. 12, 2023), https://nypost.com/2023/03/12/nycs-local-law-97-is-a-threat-to-affordable-

housing/ [https://perma.cc/95EA-B7A3] (“The loony law spells financial ruin for many of

the city’s 3,700 co-op and condo buildings, which are home to 800,000 apartments.”);

Campanile, supra note 9 (“Homeowners for a Stronger New York is battling the terms of the

city’s Climate Mobilization Emissions Law of 2019 — Local Law 97 — by next year while

backing state legislation introduced by state Assemblyman Ed Braunstein (D-Queens) and Sen.

Kevin Parker (D-Brooklyn) to require the city to provide property tax breaks to help alleviate

the costs.”).

A 2021 study that Spiegel-Feld and Wyman helped to author anticipated that residential

buildings would have greater difficulty complying with the emissions caps in Local Law 97 than

commercial buildings. Since commercial buildings are more electrified than residential

buildings, the emissions of commercial buildings will decline more without them doing anything

if New York State achieves its goals of decarbonizing grid-supplied electricity. DANIELLE

SPIEGEL-FELD ET AL., CARBON TRADING FOR N.Y.C.’S BLDG. SECTOR: REP. OF THE LOCAL LAW

97 CARBON TRADING STUDY GROUP TO THE N.Y.C. MAYOR’S OFF. OF CLIMATE &

SUSTAINABILITY 10 (2021).

251. See Complaint, Glen Oaks Village Owners v. City of New York, No. 154327/2022,

at *3 (N.Y. Sup. Ct. May 18, 2022).

252. See Raymond N. Pomeroy II, Tensions Evident as Adams’ Administration Prepares

to Implement the Climate Mobilization Act, N.Y. L. J. (June 17, 2022),

https://www.law.com/newyorklawjournal/2022/06/17/tensions-evident-as-adams-

administration-prepares-to-implement-the-climate-mobilization-

act/?slreturn=20220914143405 [https://perma.cc/WT2W-X3XU] (stating that “Aggarwala

noted that LL97’s significant penalties give the law teeth, but stressed that penalties needed

to be levied ‘with thoughtfulness,’ and a recognition that the city is still recovering from the

COVID-19 pandemic’s impact[,]” and that “Aggarwala’s statements on penalties drew quick

rebuke from several councilmembers, whose questions almost universally took aim at the

administration’s seeming efforts to soften LL97’s penalty scheme.”). See also Caroline

Spivak, City Council Demands Strict Enforcement of Local Law 97, C

RAIN’S N.Y. (Nov. 3,

2022), https://www.crainsnewyork.com/climate-change/city-council-demands-strict-

enforcement-local-law-97 [https://perma.cc/9X7X-3CYL]. In April 2023, the administration

of Mayor Eric Adams released a new PlaNYC which indicated that it planned to implement

Local Law 97. See C

ITY OF N.Y.C., PLANYC: GETTING SUSTAINABILITY DONE 53 (2023) (“To

achieve full implementation of Local Law 97, the City will finalize its rulemaking and

enforcement mechanisms, and ensure alignment with existing City and State laws and

regulations.”).

2023] LOCAL ACTION, GLOBAL PROBLEM 1243

accomplish the goal.”

253

The move gives rise to the concern that the law

could die a death by one thousand cuts.

Adding to the more complicated economic environment today, the protest

politics that fueled political momentum behind the bill may also be more

muted now than they were when LL97 was passed. In 2019, President

Trump was in the White House rapidly rolling back (or attempting to roll

back) the EPA’s climate regulations, and Republicans controlled the

Senate.

254

There was no chance that the federal government would play a

productive role in climate policy development. Today, with President Biden

in office and the Congress having passed legislation in 2022 that provides

substantial funding for climate change-related investment, the need for local

action may feel less acute and the forces that previously propelled protest

politics may be diminished. At the same time, the federal Inflation

Reduction Act may reduce the cost of implementing Local Law 97 because

it subsidizes some of the technology needed to decarbonize buildings.

255

And New York State has pledged to decarbonize electricity, which would

cause building emissions from grid-supplied electricity to fall without

building owners having to incur costs.

256

Whether these improvements will

materially impact the city’s calculus regarding Local Law 97, or other

climate policies, remains to be seen.

In the end, whether Local Law 97 will be faithfully implemented in New

York City, and whether it will be replicated widely, may depend on

policymakers finding a way to redistribute some of the costs of

decarbonizing buildings away from building owners. Local Law 97

unapologetically allocated most of the cost of compliance to building

owners; in 2019, city policymakers did not contemplate state, let alone

federal, action that might reduce the cost of decarbonizing buildings. Amidst

the bullish local climate politics of the Trump era, this cost allocation made

good political sense. In the present era, it is less clear that this is the case.

253. See N.Y.C., N.Y., Intro. No. 230 (2022); see also Paul Liotta, We Want to Make Sure

We Don’t Hurt Businesses: Mayor Adams Tours Staten Island Paper Mill Threatened by NYC

Law, SILIVE (Oct. 4, 2022), https://www.silive.com/news/2022/10/we-want-to-make-sure-

we-dont-hurt-businesses-mayor-adams-tours-staten-island-paper-mill-threatened-by-nyc-

law.html [https://perma.cc/B3QN-WCS6].

254. See Nadja Popovich, Livia Albeck-Rpika & Kendra Pierre-Louis, The Trump

Administration Rolled Back More Than 100 Environmental Rules. Here’s the Full List, N.Y.

TIMES (June 20, 2021), https://www.nytimes.com/interactive/2020/climate/trump-

environment-rollbacks-list.html [https://perma.cc/B75A-S56Y]; see also Tom Murse, The

Political Makeup of Congress, T

HOUGHTCO (Oct. 18, 2019), https://www.thoughtco.com/the-

political-makeup-of-congress-3368266 [https://perma.cc/G232-DE7T].

255. See David Smedick, Rachel Golden & Alisa Petersen, The Inflation Reduction Act

Could Transform the US Buildings Sector, RMI (Aug. 31, 2022), https://rmi.org/the-inflation-

reduction-act-could-transform-the-us-buildings-sector/ [https://perma.cc/584L-XCEW].

256. SPIEGEL-FELD ET AL., supra note 250, at 11.

1244 FORDHAM URB. L.J. [Vol. L

Moving forward, the more that the transition costs of laws like LL97 can be

socialized, the more politically viable cities’ decarbonization laws may be.

In other words, both economics and politics matter at the local level.

ONCLUSION

Given the global nature of climate change, one could be forgiven for

looking to the federal government to take the lead in addressing the problem.

But in the face of the federal government’s inaction, some local

governments, including New York City, sought to step in to fill the gaps in

the early 21st century. Some of the actions that New York and other cities

have taken may be at odds with their near-term local economic interests and

may therefore be fragile in periods of economic downturn. But other steps

appear clearly consistent with growth objectives and are likely quite durable.

There is also no doubt that a few cities have already played a productive,

complementary role to state and federal climate actions, especially in the

context of regulating building emissions. These cities have amassed

tremendous amounts of information about how energy is used in their

buildings — including opportunities to reduce such energy use — and have

spurred some higher levels of government to mimic their regulatory

approaches.