EPCA Does Not Expressly Preempt State and Local Building-Electrification Measures that Ban Fossil-Fuel Appliances

Case: N of Contracting Plumbers v. City of New York; Mulhern Gas Co., Inc. v. Mosley
Court: United States Court of Appeals for the Second Circuit
Date: June 30, 2026
Holding (one sentence): EPCA’s express preemption clause reaches energy-conservation standards (and close analogues) tied to federally prescribed test-procedure “energy use,” not state/local laws that prohibit fossil-fuel-powered appliances in new buildings.

1. Introduction

These consolidated appeals arose from New York City and New York State efforts to decarbonize new building construction by effectively prohibiting the installation/use of fossil-fuel-powered appliances (e.g., gas-fired equipment) in new buildings. Trade associations, contractors, and labor unions challenged both enactments, arguing that the Energy Policy and Conservation Act (“EPCA”) expressly preempts them.

City measure: New York City’s Local Law 154 (N.Y.C. Admin. Code § 24-177.1), which bars combustion in new residential buildings above a specified carbon dioxide emissions threshold—functionally excluding typical fossil-fuel appliances.
State measure: New York State’s directive to adopt regulations prohibiting fossil-fuel-burning appliances in new buildings (N.Y. Energy L. § 11-104(6)-(8); N.Y. Exec. L. § 378(19)).

The central legal question was straightforward but nationally consequential: does EPCA’s express preemption clause for “energy conservation standard[s]” and related state regulations sweep broadly enough to invalidate fossil-fuel appliance bans in new construction?

2. Summary of the Opinion

The Second Circuit affirmed both district court judgments (SDNY dismissal; NDNY summary judgment), holding EPCA does not preempt the challenged laws.

The court’s analysis turned on statutory text and structure:

• EPCA defines “energy use” as a standardized quantity “determined in accordance with test procedures” (42 U.S.C. § 6291(4))—a pre-market metric fixed by federal testing, not a consumer’s real-world usage.
• The challenged laws regulate energy source (fossil fuel combustion) rather than EPCA “energy use” (test-procedure consumption quantity), and they neither “connect” to nor “reference” EPCA’s performance-standard regime in the way preemption doctrine requires.
• The court rejected the Ninth Circuit’s contrary view in Cal. Rest. Ass'n v. City of Berkeley, concluding that “point of use” in § 6291(4) is a technical term distinguishing “site” energy from “source” energy—not a signal that EPCA protects end-user access to covered products.

3. Analysis

3.1. Precedents Cited (and How They Shaped the Decision)

A. Express-preemption method: text first, then scope

• Arizona v. United States: The court anchored the case in the supremacy principle and Congress’s power to preempt, but emphasized that the work is defining the “substance and scope” of displacement.
• SPGGC, LLC v. Blumenthal (quoting Wachovia Bank, N.A. v. Burke): Provided the tripartite preemption taxonomy and positioned this case squarely in express preemption.
• Buono v. Tyco Fire Prods., LP (quoting Altria Grp., Inc. v. Good and Chamber of Com. of U.S. v. Whiting): Supplied the court’s interpretive posture: even with an express clause, courts must still parse scope; “plain wording” is the “best evidence” of preemptive intent.
• Cantero v. Bank of America, N.A. and Cal. Fed. Sav. & Loan Ass'n v. Guerra: Reinforced that preemption is statutory interpretation aimed at discerning congressional intent.

B. Meaning of defined terms: follow statutory definitions

• Van Buren v. United States (quoting Tanzin v. Tanvir): The court relied on the rule that explicit statutory definitions control. This was decisive: EPCA’s definition of “energy use” foreclosed the appellants’ “end-user consumption” framing.
• Giovinco v. Pullen (quoting West Virginia v. EPA) and Metro. Taxicab Bd. of Trade v. City of New York (quoting Travelers): These cases justified reading “energy use” within EPCA’s broader scheme (labels, testing, warranties, reporting)—context confirming “energy use” is pre-consumer and test-procedure based.

C. “Concerning” / “related to”: connection vs. reference

• Lamar, Archer & Cofrin, LLP v. Appling and Chevron USA, Inc. v. Plaquemines Parish: Supported treating “concerning” and “related to” similarly, while the court cautioned (via United States v. Miller) against importing capacious readings across contexts.
• Coventry Health Care of Mo., Inc. v. Nevils (quoting Morales v. Trans World Airlines, Inc.): Supplied the “connection with, or reference to” formulation.
• Gobeille v. Liberty Mut. Ins. Co. (quoting Egelhoff v. Egelhoff ex rel. Breiner and Cal. Div. of Lab. Standards Enf't v. Dillingham Constr., N.A., Inc.): Guided the “connection” inquiry by focusing on federal objectives plus state-law effects on the federal domain.
• Rutledge v. Pharm. Care Mgmt. Ass'n: Provided the “connection”/“reference” framework and the court’s conclusion that the challenged laws have neither impermissible relationship.
• Dubin v. United States and Travelers: Reinforced that “related to” cannot be read to “the furthest stretch of its indeterminacy,” avoiding infinite connections.
• Metro. Taxicab Bd. of Trade v. City of New York: Served as the opinion’s key comparator. There, a local taxi rule was preempted because it functioned as a proxy for federally preempted “fuel economy standards.” Here, by contrast, regulating fuel type is not equivalent to regulating EPCA “energy use.”

D. Purpose-vs-effect and “circumvention” arguments

• American Trucking Ass'ns v. City of Los Angeles, Wos v. E.M.A. ex rel. Johnson, and Rowe v. N.H. Motor Transp. Ass'n: The appellants invoked these cases for the anti-circumvention principle (don’t evade preemption by re-labeling). The Second Circuit accepted the general principle but found EPCA’s objective is uniform efficiency/energy-use performance standards, not guaranteeing product availability or “consumer choice” against bans.
• Nat. Res. Def. Council v. Abraham: Used to describe EPCA’s origins and objectives (responding to the 1973 OPEC embargo; moving from voluntary targets to mandatory per-appliance standards; avoiding a patchwork of state efficiency standards).

E. “Antecedent activity” and zoning analogies

• Va. Uranium, Inc. v. Warren (Ginsburg, J., concurring): Supported the idea that federal regulation of an activity does not require states to permit antecedent activities.
• Cavel Int'l, Inc. v. Madigan; Empacadora de Carnes de Fresnillo, S.A. de C.V. v. Curry; Ass'n des Éleveurs de Canards et d'Oies du Quebec v. Becerra: Cited as examples where federal standards did not necessarily preempt upstream bans or restrictions.
• Scurlock v. City of Lynn Haven: A particularly pointed analogy: federal construction/safety standards for manufactured homes do not preempt local zoning that excludes them entirely—illustrating why EPCA standards do not automatically preempt a ban on a product’s installation/use.

F. Internal-consistency tools and “absurd results”

• Dan's City Used Cars, Inc. v. Pilkey: Used to caution against letting “exceptions” (like EPCA’s waivers) define the main rule’s scope.
• Coon ex rel. Coon v. Willet Dairy, LP: Supported rejecting an interpretation that would render statutory text meaningless (the Ninth Circuit’s reading was criticized for effectively ignoring “determined in accordance with test procedures”).
• Cuthill v. Blinken (quoting McNeill v. United States) and In re Nine W. LBO Sec. Litig.: The “absurd results” canon buttressed the court’s reluctance to read EPCA as preempting longstanding safety bans (e.g., NYC’s kerosene heater ban) once a federal standard exists.

G. Treatment of the contrary circuit authority

• Cal. Rest. Ass'n v. City of Berkeley: The Second Circuit expressly created a circuit split, finding Berkeley’s reading of “point of use” incomplete and inconsistent with EPCA’s test-procedure-based definition.
• Building Industry Association of Washington v. Washington State Building Code Council: Discussed as consistent with the Second Circuit’s view that certain building-code provisions can be preempted unless they satisfy EPCA’s building-code exemption.

3.2. Legal Reasoning

A. Step 1: Define the “thing” EPCA preempts—“energy use” is a test-procedure metric

The opinion’s core move is definitional. EPCA defines “energy use” as the quantity of energy consumed “at point of use,” but crucially, “determined in accordance with test procedures under section 6293” (42 U.S.C. § 6291(4)). That definition—reinforced by EPCA’s labeling, reporting, advertising, and warranty provisions—makes “energy use” a standardized laboratory-derived value fixed before sale, not the variable energy consumption arising from how end users operate appliances.

B. Step 2: “Concerning” does not expand preemption to “anything affecting appliances”

Even assuming “concerning” is as broad as “related to,” the court applied the familiar two-part inquiry:

• No impermissible “connection”: EPCA’s objective is uniform national performance standards for appliances’ energy efficiency/energy use/water use, not guaranteeing access to all covered products. The challenged laws do not alter, interfere with, or operate as alternative performance standards; federal standards remain fully operative.
• No “reference”: The laws do not incorporate EPCA test results, do not rely on an appliance’s test-procedure “energy use,” and do not use “energy use” as a proxy. They regulate by energy source (fossil fuel combustion), which can correlate imperfectly—or even inversely—with test-procedure energy metrics.

C. Step 3: Structural confirmation—EPCA’s symmetry points back to “energy conservation standards”

Multiple internal indicators aligned with the court’s narrow reading:

• The preemption subsection’s title (“General rule of preemption for energy conservation standards…”) signals the target of preemption.
• EPCA’s definition of “energy conservation standard” includes “a maximum quantity of energy use… determined in accordance with test procedures” (42 U.S.C. § 6291(6)(A)), mirroring the preemption clause’s “energy efficiency, energy use, or water use” triplet.
• The building-code exemption makes sense on this reading: it assumes some building-wide energy measures might otherwise operate like de facto product standards and thus need an exemption pathway.

D. Step 4: History over time—1987 amendments did not convert EPCA into an anti-ban statute

The court contrasted earlier versions (preempting “energy efficiency standard or similar requirement”) with the 1987 changes and concluded Congress was not quietly expanding preemption to product bans. Instead, the rewording tracked EPCA’s shift in nomenclature and the statute’s core focus: national performance standards to prevent a patchwork of state efficiency requirements.

E. Step 5: Rejecting the Ninth Circuit’s “point of use” theory

The Second Circuit criticized Cal. Rest. Ass'n v. City of Berkeley for effectively reading out “determined in accordance with test procedures” and for treating “point of use” as about consumer access and final destinations. The Second Circuit adopted a technical meaning: “point of use” distinguishes “site energy” from “source energy” (i.e., excluding upstream generation/transmission losses), consistent with DOE materials cited by the court.

3.3. Impact

A. Practical impact on decarbonization and building regulation

The decision substantially strengthens the legal footing of state and local “new-building electrification” measures—at least within the Second Circuit—so long as they are drafted and enforced as fuel-type/combustion restrictions rather than as de facto per-appliance efficiency or “energy use” standards.

B. Litigation impact: an explicit circuit split

By declining to follow Cal. Rest. Ass'n v. City of Berkeley, the Second Circuit created a clear split on the scope of EPCA express preemption as applied to fossil-fuel restrictions. That increases the likelihood of Supreme Court review, invites forum-sensitive litigation strategies, and pressures other circuits to choose between two competing readings.

C. Drafting signals for governments and challengers

• For governments: regulate by combustion/fuel type, emissions thresholds, or building-system design in ways that do not incorporate EPCA test metrics; avoid enforcement triggers that require reference to a product’s EPCA “energy use.”
• For challengers: EPCA preemption arguments will be stronger when the local measure conditions legality on efficiency ratings, test-procedure “energy use,” or effectively forces purchase of appliances exceeding federal standards (the “proxy/reference” problem highlighted in Metro. Taxicab Bd. of Trade v. City of New York).

4. Complex Concepts Simplified

Express preemption

Express preemption means Congress wrote an explicit clause telling courts when state/local rules must give way. But courts still must determine how far that clause reaches—by reading the clause’s words in their statutory context.

“Energy use” under EPCA

In this opinion, “energy use” is not “how much energy you personally burn using a stove at home.” It is a standardized number produced by federal test procedures designed to simulate representative use—so every model can be compared using the same measuring stick.

“Concerning” / “related to” and the two pathways to preemption

A state/local law can “concern” a federal topic in (at least) two ways:

• Connection: it interferes with the federal program’s objectives or has the kind of effect Congress meant to prevent.
• Reference: it explicitly uses the preempted subject (or a close proxy) as an element of the rule’s operation.

“Point of use” (site energy) vs. “source energy”

“Point of use” focuses on energy actually consumed at the appliance location (site energy), not the upstream energy spent producing and delivering that energy (source energy). The Second Circuit treated this as a technical measurement choice embedded in EPCA’s definitional scheme—not as a consumer-access guarantee.

5. Conclusion

The Second Circuit’s opinion sharply narrows EPCA’s express preemption clause to its natural home: appliance-level energy conservation standards (and close functional equivalents) keyed to federal test-procedure metrics. By holding that fossil-fuel appliance bans in new buildings regulate fuel type rather than EPCA “energy use,” the court preserved substantial state and local authority over building electrification—while simultaneously deepening a circuit split with Cal. Rest. Ass'n v. City of Berkeley that is likely to shape national energy, housing, and preemption litigation for years to come.