In 2019, Berkeley, CA became the first city in the country to prohibit natural gas connections in new buildings. On April 17th, the Ninth U.S. Circuit Court of Appeals dealt the Berkeley code a grave blow when it sided with the California Restaurant Association (CRA) in ruling that Berkeley’s ban violates the federal Energy Policy and Conservation Act (EPCA).
The Ninth Circuit includes California, Oregon, Washington and six other western states, and often sets legal precedent on some of the country's biggest issues so its rulings come with some gravitas. In its decision, the appellate court reinforced that the EPCA establishes the U.S. government as the preeminent authority on energy-efficiency standards for appliances.
“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,” said Dan Kirschner, Executive Director of the Northwest Gas Association (NWGA). He continued, “Congratulations and thanks to the CRA for its courage and commitment to the cause of preserving energy choice for consumers.”
In 2021 the U.S. District Court held that Berkeley’s code did not run afoul of the EPCA preemption because it regulated the fuel used by appliances, not the energy efficiency of those appliances. The Ninth Circuit panel of three judges unanimously disagreed. Writing for the panel, Judge Patrick Bumatay said that a local ordinance banning the installation of natural gas pipes in buildings naturally “impacts the quantity of energy” that appliances such as gas stoves use. Here are a couple of excerpts that reflect the heart of the Ninth Circuit’s opinion (see below for a link to the Opinion itself):
“By its plain text and structure, EPCA’s preemption provision encompasses building codes that regulate natural gas use by covered products. And by preventing such appliances from using natural gas, the new Berkeley building code does exactly that."
“States and localities can’t skirt the text of broad preemption provisions by doing indirectly what Congress says they can’t do directly.”
It is unclear how the Berkeley ruling affects many of the other jurisdictions that have banned or curtailed natural gas use through building codes. Several state and local codes may be at risk because they are based on the Berkeley code or use similar mechanisms to achieve the same outcome.
In the Northwest, the ruling could affect the recently adopted City of Eugene ban on natural gas connections in new residential buildings. The 2021 Washington State Building Code (WSBC), set to go into effect on July 1, may also be implicated. The WSBC effectively bans the use of gas appliances in new residential and commercial buildings except under certain limited extenuating circumstances.
“NWGA members are committed to helping the region realize its decarbonization goals,” said Kirschner. He maintained that making effective use of the natural gas delivery system will enable the region to achieve its decarbonization aspirations more dependably and more affordably than electrification only.
“Instead of continuing to play ‘whack-a-mole’ with ill-informed and misguided local or state gas bans and forced electrification initiatives, our members would much rather collaborate on pragmatic, real-world decarbonization solutions that embrace the intrinsic value of the gas delivery system,” Kirschner concluded.
OPINION: California Restaurant Association v. City of Berkeley (No. 21-16278) https://bit.ly/3mUGCJf
K&L Gates Alert: Ninth Circuit Cans Berkeley Gas Ban Under Federal Law
Wall Street Journal Editorial Board "Gas Stoves Triumph Over Berkeley”: https://on.wsj.com/3LkOwoE
AGA’s Statement on the Court decision: https://bit.ly/3H5XWBQ