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NINTH CIRCUIT - PART TWO

As we know, the City of Berkeley, CA banned the installation of natural gas piping in new construction. Judges in the U.S. Ninth Circuit Court of Appeals ruled that Berkeley’s ordinance effectively if indirectly banned natural gas appliances and therefore violated federal pre-emption of appliance efficiency standards contained in the Energy Policy and Conservation Act (EPCA).


Berkeley City Councilmember Kate Harrison, who authored the 2019 ordinance, said she doesn’t know how the city council will respond, but noted that bans on natural gas or efforts to curtail the use of natural gas have spread to 70 communities in California. Despite the federal court ruling, Councilmember Harrison confidently stated, “This is a movement that can’t be stopped.” Others disagree.


For instance, the Ninth Circuit ruling overturned the 2021 decision of a judge in a lower court who dismissed the case because the ordinance did not regulate energy efficiency for appliances but only access to the fuel they used. Judge Patrick Bumatay disagreed, writing in the unanimous Ninth Circuit opinion that a local ordinance banning natural gas connections to buildings “impacts the quantity of energy” gas appliances consume, which is under federal regulation.


The global law firm K&L Gates did its own analysis of the Ninth Circuit decision, “Ninth Circuit Cans Berkeley Gas Ban Under Federal Law. Here is an excerpt from their analysis, “First, the Ninth Circuit’s focus on “use” puts in question state and local regulations prohibiting or affecting—even indirectly—the “use” of natural gas in homes and buildings.”


The K&L Gates Analysis went on to state, “The Ninth Circuit’s confirmation that EPCA requires in many cases continued access to natural gas infrastructure by new customers supports continued prudent investment by utilities to meet this additional demand—and, accordingly, bolsters the case for cost recovery for these investments in utility rates.”


Dan Kirschner, Executive Director of the Northwest Gas Association said, ““The Ninth Circuit decision casts a dark shadow of uncertainty over the legality of state and local codes that actually or effectively ban the use of natural gas appliances or the installation of gas connections in homes and businesses.”


Karen Harbert, president and CEO of the American Gas Association noted, “The U.S. Court of Appeals for the Ninth Circuit took a huge step today that will both safeguard energy choice for California consumers and help our nation continue on a path to achieving our energy and environmental goals.”


Berkeley is considering its options, which includes petitioning the Ninth Circuit for an “en banc” review of the original three-judge panel’s decision. If en banc is sought and granted, eleven of the twenty five Ninth Circuit judges will be randomly selected to conduct the review and either uphold or overrule the original panel’s opinion. After that, who knows? One thing is certain: the fight to retain energy choice as we work to decarbonize the economy wages on.

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