In a Warming World, Is Air-Conditioning a Right?

This summer, as a heat dome settled over much of the United States and the number of heat-related deaths rose, a simple truth became apparent: cooling, as much as heating, is fast becoming an essential right. For Seth Gertz-Billingsley JD ’25, the recipient of a 2022–2023 Radcliffe Engaged Student Grant, who grew up in Texas, it’s obvious.

“In Texas, it’s always hot,” said Gertz-Billingsley, who begins his second year at Harvard Law School this September. “And so essentially everyone has air-conditioning simply as a result of living there.”

When Gertz-Billingsley and his wife, Michaelah, moved to Massachusetts the summer before his first year at the Law School, he expected something different. “Everyone told me how cool it is and how nice it is in Massachusetts. My wife and I moved in July, and it was hot—so hot. And our apartment did not have air-conditioning. That was not something that I anticipated. I didn’t expect it to be in the 90s. And I definitely didn’t think about not having AC.”

Although the summer of 2022 didn’t hit the record highs of this past summer, it was hot enough to spark a breakthrough for the law student. “I’m sitting inside, and I’m sweating, and I’m thinking it’s really good that I’m not old and that I don’t live somewhere just a little farther south where it’s substantially hotter.” The couple eventually bought an air conditioner, but it occurred to Gertz-Billingsley, “What if I didn’t have the means to buy one of these?”

That question ate at him as he started classes. Casting a wider net—“I wanted to take advantage of all the opportunities at Harvard,” he said—he came across Harvard Radcliffe Institute and the Radcliffe Engaged Student Grants. These grants, which are open to both undergraduates and graduates, provide stipends of $1,500 per project for research, creative, and service work in one of the grant’s areas of interest. For 2022–2023 applicants, the focus was on climate change and law, education, and justice, both of which fit Gertz-Billingsley’s area of interest.

Titled “US Judicial Precedent and Air-Conditioning: How Climate Change Could Impact Metropolitan Tenants’ Rights,” his grant application proposed looking at current laws and legal precedents to strategize how to change policy so that landlords are required to provide cooling as they do heat.

His research made him quickly realize how devastating hot weather can be. Heat-related deaths in the United States rose 95 percent between 2010 and 2022, according to the Guardian. And that was before this previous July was declared Earth’s hottest month on record. While these extreme conditions are of concern to all, it’s a statistic that has a devastating or even deadly impact on low-income renters. “Older people are much more susceptible to heat-borne illnesses,” he said.

What he couldn’t find were laws to mitigate that risk. Dallas and Houston, he knew, have city ordinances that require landlords to provide some level of heat relief, but the law’s reach is limited. He found the broadest legislation in Oregon, where a statute, SB 1536, requires new developments to have cooling, as well as heating, for tenants. In addition, the statute prohibits landlords from restricting window air conditioners for aesthetic reasons (“because they’re ugly,” said Gertz-Billingsley), the state now requires landlords to allow tenants the option of installing their own cooling devices. It also established a fund to provide, on an emergency basis, AC units to tenants who could not afford them.

“The Oregon statute was the first of what I expect will be a new wave of legislation,” he said.  Elsewhere, “we don’t have the infrastructure, and if we do, it’s not in low-income residential spaces,” he said. “So that’s where I began.”

The grant allowed Gertz-Billingsley to interview tenant advocates across the country. What he uncovered was double-edged. Air-conditioning, for example, is only a short-term solution, as it often contributes to climate change. “Even units that have a high energy-efficiency rating can still contribute to the problem,” he said. “They can still emit heat. They could use chemicals, like PFAS, that we now know can harm the environment or human health.”

Instead, Gertz-Billingsley found himself looking for longer-term structural changes, such as greener construction codes. Before law school, the Fort Worth native had worked as a lobbyist in Austin for an environmental organization. One of his campaigns pushed for simple structural changes such as painting the outside of buildings with lighter colors, tinting windows, and creating “green” roofs to be more energy efficient. His efforts paid off.

“Austin is now going to be requiring more rigorous green infrastructure for new development,” he said. “And if Austin can do that, then I’m quite confident some of our cities in the north can as well.”

The techniques for enabling such changes vary too. While Gertz-Billingsley’s final report was titled “Warranty of Habitability and Cooling,” the idea of warranty of habitability—that a living space must be habitable for a person to safely live in it year round—is not a legal slam-dunk.

For starters, Gertz-Billingsley explained, the concept is contentious. Arkansas, for example, generally provides no such protections for tenants unless explicit in the lease.

And even in jurisdictions where habitability laws are a legal option, there are problems. The warranty of habitability has several “threshold issues,” according to Gertz-Billingsley. It typically requires that a tenant first live in a unit that is not habitable and pay rent into an escrow account while attempting to fix the problem themselves. This, he explained, is a problem, especially for lower-income tenants, “who probably don’t have a few hundred dollars to go and purchase an AC unit of their own.” Plus, he noted, “they probably have very real concerns of being evicted and fear retaliation from their landlord.”

A more feasible long-term approach, he learned, lies in raising tenant awareness and empowering tenant activism. Gertz-Billingsley outlined the argument: “Even if I’m not falling over from heat stroke, the heat is going to impact my ability to work and my mental health. It’s going to impact my kids. And I, individually, may not have the ability to change it—but collectively, we do.”

“Landlord-tenant law has long recognized heat as an essential part of habitability, to which all tenants have a right. Rising temperatures, deadly heat waves, and their disproportionate impact on poorer neighborhoods with fewer trees for shade have made us aware that cooling is just as essential to habitability,” said Bruce H. Mann, Carl F. Schipper, Jr. Professor of Law at Harvard Law School. “Seth Gertz-Billingsley’s effort to translate this need into a legally enforceable right would be a significant protection for lower-income tenants in a warming world.”

Currently a research assistant at the Harvard Environmental and Energy Law Program who tracks the Biden Administration’s environmental regulations, Gertz-Billingsley hopes to go into environmental law after graduating. Until then, the report generated by his Radcliffe Engaged Student Grant will provide the groundwork for continued research into warranty of habitability as well as into changing laws to reflect climate change. “Maybe I could produce a model statute based on Oregon’s,” he said. “That would open a lot of doors for advocacy.”

Clea Simon ’83 is a novelist whose most recent title is Hold Me Down (Polis Books, 2021).