Subjecting the incarcerated residents of Texas to extreme heat constitutes cruel and unusual punishment, and prisons statewide must install air conditioning by the end of 2029.
Although the ruling Judge Robert Pitman issued last month is unique in its invocation of the Constitution’s Eighth Amendment, it is an explicit recognition of an idea increasingly reflected in laws and policies nationwide: As extreme heat becomes more dangerous, even deadly, access to cooling is increasingly seen as a necessity rather than a luxury. This shift has been especially active in housing, where renters often face structural hurdles to accessing cool air, from high costs to explicit bans on the installation of air conditioning…
Tenants could, in theory, ask courts to recognize heat protection as part of the implied warranty of habitability. But rather than rely on judges, advocates have largely pursued explicit protections through housing codes and landlord-tenant laws.
Exactly what those protections should guarantee — and how they are implemented — is far from settled.
The first question is whether they should require air conditioning, as the ruling in Texas does, or simply establish a maximum allowable indoor temperature that property owners can comply with however they see fit. Clinton Andrews, director of the Center for Urban Policy Research at Rutgers University, believes the latter approach could encourage passive, energy-efficient methods, like planting trees or installing window shades. A well-designed performance standard also makes clear exactly what landlords are expected to achieve. Unlike a law that simply requires them to install AC or provide “adequate cooling,” a temperature threshold gives tenants and regulators something concrete to measure against.
Such a standard still requires deciding how hot is too hot, and there’s no universally accepted science on this. Some jurisdictions have settled on 82 degrees Fahrenheit. Others, like several cities in Canada, are exploring a limit closer to 79 degrees F. Stefano Schiavon, a professor of architecture and civil and environmental engineering at the University of California Berkeley, said this is to some extent influenced by physiology and culture because people regularly exposed to high temperatures can more readily adapt to hotter weather.
The same flexibility that appeals to Andrews, however, can also be a liability. Some housing advocates worry that a performance standard could allow a landlord to avoid providing the most effective — and costly — means of cooling: air conditioning.