By Heather Payne and Jennifer D. Oliva
Gas appliances pose a grave danger to tenant health and safety.
In a forthcoming article, we argue that the mere presence of natural gas appliances in the home renders a dwelling uninhabitable due to their potential health harms. We further contend that tenants should invoke the implied warranty of habitability to eliminate the continued exposure to natural gas appliance-generated indoor air pollutants.
We recognize that our advocacy for the implied warranty of habitability as a potential reform in this context may seem like an odd choice. But as it turns out, such use of the implied warranty comports with its purpose: to impose on landlords the duty to address premises issues that threaten tenants’ lives, health, and safety. In fact, there is a long history of tenant invocation of the implied warranty to rectify health-harming premises conditions, including rodent and insect infestations, the presence of mold, and the lack of heat or hot water. The implied warranty also cannot be waived by a tenant or contracted around by savvy landlords. It is a remedy, therefore, that is available to every tenant all of the time.
Moreover, viable replacement options to those appliances are both readily available and cheaper than ever due to funding provided through the Inflation Reduction Act. Not only are states and cities starting to act to curb the use of gas appliances in residential and commercial spaces, environmental activists are urging the federal government to remove them from federally assisted housing. There is simply no reason for tenants to be exposed to the significant indoor air pollution — including fine particulate matter, carbon dioxide, carbon monoxide, nitrous oxides, sulfur dioxide, and formaldehyde — generated by the indoor combustion of natural gas.
Research demonstrates that — in addition to the health harming air pollutants already mentioned — air toxics like benzene are present in the fossil gas that is piped into homes. Worse yet, studies prove that piped natural gas has inconsistent levels of odorant (a necessary addition, as natural gas is odorless). As a result, tenants are often incapable of detecting leaky appliances. This is particularly problematic given that up to 76% of methane emissions occur from leaks when gas appliances are not in use.
Further, as with most emissions sources, the impacts from natural gas appliances are disparately borne by low-income tenants who live in small, poorly ventilated spaces. It is also worth pointing out that even code-compliant ventilation may not be enough to counter the harmful impacts of gas appliance emissions. This is because code compliance fails to guarantee that ventilation will adequately eliminate combustion by-products from indoor spaces. Consequently, the potential for pollutant loads is significant in units with little ventilation or recirculating hoods.
Our proposed expansion of the implied warranty of habitability to gas appliances thus comports with health justice, given the disparate impacts of indoor air pollution on low income and minoritized populations. There is no shortage of data demonstrating that low income and minoritized individuals suffer disparate health outcomes in the United States. These disparities became even more evident during the initial months of the COVID-19 pandemic, both in terms of life expectancy — which decreased more for racialized and minoritized groups than other populations — and with regard to COVID-19 mortality rates, which have been linked to prolonged exposure to small particulate matter air pollution.
Going Where Legislation and Regulation Have Not
While such extension of the implied warranty of habitability is, at best, an imperfect solution to a significant public health problem, neither legislation nor regulation at the federal level is foreseeable. Any attempt by the EPA to use its statutory authority to curb the use of residential gas appliances, for example, is highly unlikely to survive an industry challenge given the recent Supreme Court decisions invoking the major questions doctrine.
It is also improbable that Congress or a majority of the states will enact effective legislative reforms aimed at gas appliances due to significant industry lobbying by groups like the American Gas Association and the American Propane Association. Agents and front groups of industry companies have worked tirelessly to intimidate and stymie action at the local level. Regulators have known for over four decades that natural gas appliances generate considerable indoor air pollution. They also know that exposure to such indoor air pollution increases the risk of and exacerbates asthma-related health outcomes and other concerning respiratory conditions in children.
The natural gas and propane industries also have spent millions on misinformation campaigns about electrification. Industry groups have gone so far as to pay “influencers” to disseminate anti-electrification messages. The natural gas influencers attempt to create the perception that the use of natural gas is superior in cooking, while propane influencers have capitalized on the idea that propane — which is a fossil fuel — is more environmentally friendly than natural gas. Worse yet, the fossil fuel industry’s go-to scientist to play down the harms associated with indoor air pollution has similarly refuted the public health harms associated with tobacco and plastics — as well as failed to disclose that she is paid by the gas industry for her opinions.
Even more concerning than the industry’s mass influencer campaigns is their focus on specific cultural groups in their campaign to champion gas stoves. The industry actively promotes the notion that any government action aimed at reducing the indoor air pollution generated by natural gas appliances or that encourages electrification is little more than an attempt to eviscerate key cultural identities, such as food preparation. The use of long-standing cultural values as a wedge to maintain the status quo is nothing new but is particularly pernicious in this context given that induction options are available that allow for similar or superior cooking results.
We are in desperate need of a meaningful public health messaging campaign that explains both the harms of natural gas appliances and the availability of excellent electric alternatives. Consider: North Americans spent nearly ninety percent of their lives indoors pre-pandemic. And, due to its lack of regulation in the United States, indoor air is often more polluted and health-harming than outdoor air.
There is no question that the electrification of low-income units has prompted dramatic and meaningful improvements in tenants’ lives, health, and safety. The sheer magnitude of the health harms that derive from gas appliances demands immediate and meaningful action to remove these appliances from the places where racialized and marginalized communities reside.
Heather Payne is an Associate Professor of Law at Seton Hall University School of Law.
Jennifer D. Oliva is a Professor of Law & Co-Director of the UCSF/UC Law Consortium on Law, Science and Health Policy at the University of California College of the Law, San Francisco.