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Since Berkeley, California prohibited gas connections to most new buildings, dozens of cities have followed suit with similar policies. Now, a federal appeals court will decide whether the local statute is allowed under federal law.
When Berkeley, California, banned natural gas hookups to most newly constructed buildings in the city back in 2019, it was viewed as a landmark step by a local government to curb carbon emissions and combat climate change.
But the controversial move ignited a legal clash with the restaurant industry and other opponents that is now playing out in a closely watched case before a federal appeals court. Central to the dispute are questions about whether Berkeley officials overstepped their authority under federal law in adopting the restrictions on gas connections.
Those challenging the ban say the city has run afoul of the federal Energy Policy and Conservation Act. But local officials say that the city is acting within its rightful power to—as they’ve put it—“try to shape its infrastructure in a way that recognizes that in the near future natural gas service will be obsolete.”
The case is especially significant because the city’s ban set off a wave of similar measures in California and beyond that require, or encourage, fossil fuel energy to be phased out of new building and home construction. There are now at least 77 jurisdictions that have taken action like this nationwide, according to the Building Decarbonization Coalition.
Last week, the Los Angeles City Council approved a plan to largely ban gas appliances in newly constructed buildings in the coming years.
“This is an important case,” said William Boyd, a professor at the University of California, Los Angeles School of Law. “I think a lot of cities and states will be watching this to determine their own next steps in addressing climate change and the transition away from natural gas.”
The 9th U.S. Circuit Court of Appeals heard oral arguments in the case on May 12, but has yet to hand down a decision. The group leading the challenge to the local ordinance, the California Restaurant Association, failed to convince the U.S. District Court for the Northern District of California that the ban was preempted by the federal law.
The Energy Policy and Conservation Act, or EPCA, was adopted in the 1970s, amid the fallout from the fuel shortage crisis at that time. The law sought to strengthen domestic energy supplies, rein in energy demand and prepare the nation for energy emergencies.
It also sets certain energy use and efficiency standards for appliances like furnaces and stoves and in doing so preempts state regulations aimed at doing the same. The restaurant association argues Berkeley is making an “end-run” around the limits it faces under the EPCA and state law by regulating the utility pipes feeding gas to appliances, rather than the appliances themselves.
“There’s been a growing trend where local governments are becoming incubators for public policy experiments—and it seemed to us that Berkeley was taking a page from this playbook and applying it to an area clearly controlled by the EPCA,” said Jot Condie, president and CEO of the restaurant trade group.
“For us, this is a matter of local governments literally stripping away the tool of the trade, the ‘blue flame’ that is critical to controlling heat and cooking various foods,” he added.
A brief the association filed with the appeals court argues that the District Court’s ruling “contradicts the plain text of the statute” and that Congress used broad language with the law to block state and local governments from regulating appliance energy use.
Berkeley counters that the EPCA focuses on “designing and making appliances, not distributing or making natural gas available,” and that its ordinance has no bearing on appliance design.
“To me, the real question centers around the longstanding state and local authority over utilities and local [energy] distribution systems, which is all nested within a federal structure intended to complement but not displace that authority,” said Boyd, the UCLA law professor.
“States and local governments don’t set efficiency standards for appliances, but that has nothing to do with their authority over local gas and electricity distribution systems,” he added.
The National Association of Home Builders, the California Building Industry Association, and the Hearth, Patio, & Barbecue Association are among the groups backing the restaurant association’s appeal.
Chris Ochoa, senior counsel for codes, regulatory and legislative affairs with the California Building Industry Association, expressed concerns about the implications of the ordinance.
“We support decarbonization overall, and we have supported the last five updated building codes in this direction. Our concern is really around moving too quickly, because it takes time to ramp up market penetration,” he said.
On the other side, the Biden administration, eight states, and numerous other advocates are siding with Berkeley—and in a broader sense, the rights of other municipalities to advance measures along the lines of the one the city adopted.
An amicus brief from Columbia University’s Sabin Center for Climate Change Law—filed on behalf of the National League of Cities, League of California Cities and California State Association of Counties—defended the lower court ruling, saying that Berkeley’s ban “is a proper exercise of the City’s police power.”
Amy Turner, a senior fellow at the center, explained the municipal groups are concerned that “the CRA’s over-broad reading of federal preemption puts at risk local governments’ ability to protect their residents’ health and safety, including from the impacts of climate change.”
Other Berkeley supporters included RMI, a nonprofit focused on advancing clean energy; Climate Health Now, a group of California health professionals that sees climate change as a paramount public health crisis; and the San Francisco Bay Physicians for Social Responsibility, which promotes public policies to protect human health and address social injustice.
Two professional chefs involved in a company that designs all-electric kitchens and consults on kitchen electrification projects are also siding with the city.
“While concerns by restaurants that they’ll be unable to produce the same quality of food without gas may come from a good place, they are misplaced,” said Chris Galarza, a veteran chef and founder of Forward Dining Solutions, near Pittsburgh, Pennsylvania.
“Induction stovetops and other cooking methods are much safer for those of us in the kitchen, better for the environment, and don’t compromise food preparation and quality,” he added.
It could be months before the 9th Circuit renders a decision in the case. But advocates on both sides are likely to be paying close attention to how the dispute plays out.
Denise Grab of RMI noted how the ruling could have implications beyond Berkeley. “A decision by the Ninth Circuit confirming [the lower court decision] would set legal precedent and bolster support for common-sense policies in other cities,” she said.