*Update* Federal Court Overturns Berkeley Natural Gas Ban

UPDATE (3/26/24):

The City of Berkeley has agreed to repeal its natural gas ban after the Ninth Circuit declined to rehear the case in January, affirming the court’s April 2023 decision to strike down the city’s natural gas ban as being preempted by federal law.

Karen Harbert, president and CEO of the American Gas Association, called the repeal of Berkeley’s rule “a significant step towards safeguarding energy choice for California consumers and helping our nation continue on a path to achieving our energy and environmental goals.”

Jot Condie, president and CEO, of the California Restaurant Association, responded to the news, stating:

“Climate change must be addressed, but piecemeal policies at the local level like bans on natural gas piping in new buildings or all-electric ordinances, which are preempted by federal energy laws, are not the answer. Cities must comply with the law. Rather, the ban was passed with a disregard for available cooking technologies and ultimately for small businesses in the community that rely on gas-burning equipment for their cuisines.” (emphasis added)

The 70-plus California cities that decided to follow Berkeley and banned natural gas may have to repeal their laws as well, according to the California Restaurant Association. However, Earthjustice is already touting that they can effectively ban natural gas through other approaches. To learn more about how activists are still targeting natural gas appliances, check out EID’s recent blog.

UPDATE (1/3/2024):

The U.S. Court of Appeals for the Ninth Circuit has once again protected consumer choice with a majority of judges – 20 of 28voting to uphold the court’s decision to strike down Berkeley, Calif.’s natural gas ban.

In a vote this week, the judges declined the City’s petition for an en banc hearing to reconsider the April 2023 ruling. The Biden administration had also asked for the ruling to be overturned despite the court’s finding that it preempts federal law.

The court had sided with the California Restaurant Association when it determined the city’s first-in-nation ordinance banning gas appliances in new buildings wrongfully stepped into federal regulatory jurisdiction over ‘quantity of energy’ use. The ruling decisively overturned Berkeley’s 2019 gas hook-up ban and set a precedent for similar restrictions and reach codes passed in other cities and states.

Original Post: April 17, 2023

The U.S. Court of Appeals for the Ninth Circuit just overturned California’s first natural gas ban – an ordinance passed by the City of Berkeley in 2019 – ruling that it is preempted by federal law.

“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.

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