By Bradford White Corporation
On Nov. 12, 2025, parties to a court case recently decided by The United States Court for the Northern District of New York, including New York State, agreed to delay the state’s all-electric new construction mandate for smaller buildings. The state policy was originally slated to take effect on Jan. 1, 2026.
Currently a coalition of several groups, including contractors and the gas industry, are in litigation with the state in a case known as Mulhern Gas Co. v. Mosley. The coalition is challenging, as the California Restaurant Association (CRA) successfully did in their suit against the City of Berkeley (CRA v. Berkeley), that New York’s all-electric new construction requirements run afoul of federal law. More specifically, the suit claims that the federal Energy Policy and Conservation Act includes a preemption provision that prohibits any state or local government from enacting and enforcing a policy that would prohibit, or otherwise restrict, the use of federally regulated appliances; in this case, products utilizing gas or oil as a fuel source.
In Berkeley, the CRA initially lost their argument in federal district court before ultimately winning an appeal from the United States Court of Appeals for the Ninth Circuit, which has jurisdiction over several western states, including Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. Likewise, the coalition’s case in Mulhern suffered a setback this past summer when the United States Court for the Northern District of New York ruled against them and upheld the state’s all-electric new construction requirements. However, with the coalition now appealing their case to the United States Court of Appeals for the Second Circuit, the District Court is granting a stipulation filed by parties on both sides of the suit to delay the effective date of New York’s all-electric new construction policy until such a time that the Appeals Court decides the matter. It is unclear as to exactly when this may happen.
Like the Ninth Circuit Court, the Second Circuit Court has only regional jurisdiction, covering the states of Connecticut, New York, and Vermont. Nevertheless, the Second Circuit Court’s ruling in this matter is likely to have national implications either way as it relates to future all-electric new construction policies.
If the Second Circuit Court agrees with the Ninth Circuit Court and strikes down the New York law, this would set a powerful precedent for courts in other regions of the country who are asked to make decisions in similar disputes. If, however, the Second Circuit Court chooses to depart from the Ninth Circuit Court’s ruling and uphold New York’s law, this would obviously result in split decisions among the Circuit Courts, which can often serve as a catalyst for the case to be taken up by the United States Supreme Court, who would make a nationally binding decision.
For now, stakeholders can only continue to wait for the Second Circuit Court to hear, assess, and decide the Mulhern case. Until then, if you have any questions about this matter, or any others related to government and regulatory affairs in our industry, BWC’s Government and Regulatory Affairs team would like to speak with you. Also, if you know of any legislative or regulatory activity in your community or state that would impact our industry, please do not hesitate to contact us at BWCGovReg@bradfordwhite.com.
