The Climate Mobilization Act’s Surprising Paradox

Co-op and condo boards are facing a harrowing challenge. Under Local Law 97, the centerpiece of the city’s ambitious Climate Mobilization Act (CMA), all covered buildings larger than 25,000 square feet will be given a yearly carbon emissions budget, or cap. Beginning in 2024, significant fines will be levied against buildings that emit more carbon than their budget allows. To get under budget, a building may need to change its light bulbs, install a solar roof, upgrade the boiler, replace the facade or all of the above. Many building owners and real estate lobbying groups have insisted that complying with the emissions limits will be practically impossible and ruinously expensive.

Given that backdrop, it’s a paradox that the Climate Mobilization Act has still not captured the attention of many co-op and condo boards. There could be many reasons for this – the act was initially overshadowed by the new Tenant Protection Act, then by the coronavirus pandemic. Also, many Local Law 97 deadlines seem far off. But I believe there is something more fundamental going on.

Exactly because the CMA’s requirements are so daunting, many co-op and condo boards are consciously or subconsciously burying their heads in the sand and hoping that something will come along to make tough decisions go away. To be fair, this is not a totally irrational impulse. During the most recent legislative session, Gov. Andrew M. Cuomo tried to pass an end-run around Local Law 97’s emissions limits by making renewable energy credits, or RECs, available to building owners trying to comply with Local Law 97. Purchasing RECs from upstate solar farms, for instance, would effectively shrink a building’s carbon footprint – and it would be far cheaper for most buildings than doing a retrofit project or paying the fines. Since RECs do little to reduce carbon emissions, legislators took the expansion of RECs out of the final budget.

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None of these machinations made big headlines, but they contribute to a belief that Local Law 97’s requirements could disappear at the stroke of a pen. I have heard more than one building representative say that co-op and condo boards are reluctant to undertake any major retrofit projects because someday it will be easier just to “buy some RECs.”

This is a dangerous game to play for co-op and condo boards. No one can say if, or how, the CMA’s requirements will evolve, or whether buildings will be relieved of the most difficult requirements. But under the law as it currently exists, boards need to be planning right now to do the work needed to get within their emissions budgets by 2024 and 2030. Indeed, Local Law 97’s first significant compliance deadline is already upon us: certain high-emissions buildings need to apply to the city for adjustments to their emissions budgets by June 30, 2021.

Moreover, without broad compliance with the law, New York City will not be able to meet the CMA’s goal of reducing greenhouse gas emissions by 40% by 2030 and 80% by 2050. The overarching purpose of climate legislation – to create an equitable, carbon-neutral economy – is a daunting but worthy goal not only for individual buildings but for society as a whole. Co-op and condo boards should resist the temptation to bury their heads in the sand.

William D. McCracken is a partner at the law firm Ganfer Shore Leeds & Zauderer.