Federal Court Overturns Berkeley Natural Gas Ban
“The panel held that the Energy Policy and Conservation Act preempts the Berkeley ordinance. The panel wrote that, in this express preemption case, it addressed the plain meaning of the Act without any presumptive thumb on the scale for or against preemption. The Act expressly preempts State and local regulations concerning the energy use of many natural gas appliances, including those used in household and restaurant kitchens. Instead of directly banning those appliances in new buildings, Berkeley took a more circuitous route to the same result and enacted a building code that prohibits natural gas piping into those buildings, rendering the gas appliances useless. The panel held that, by its plain text and structure, the Act’s preemption provision encompasses building codes that regulate natural gas use by covered products. By preventing such appliances from using natural gas, the Berkeley building code did exactly that. The panel reversed and remanded for further proceedings.” (emphasis added)
As Bloomberg Law further explains:
“The panel’s decision was a win for the California Restaurant Association, which argued the Berkeley, Calif., ordinance was preempted by the Energy Policy and Conservation Act. The city said the ordinance would help control emissions and ‘eliminate obsolete natural gas infrastructure.’ But it effectively amounted to a ban on natural gas appliances, the CRA told the US Court of Appeals for the Ninth Circuit.
“’Berkley [sic] can’t bypass preemption by banning natural gas piping within buildings rather than banning natural gas products themselves,’ the panel wrote.”
The ruling has major implications for similar bans and reach codes that have been passed in other cities.
In 2019, Berkeley, Calif., became the first U.S. city to ban natural gas hook-ups in new buildings. Since then more than 70 cities in the state have restricted natural gas connections and use from new, existing, or renovated homes.
Today’s ruling suggests an uncertain future for those bans. It’s also a powerful precedent for future cases as other cities consider similar restrictions on natural gas stoves and other appliances.