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A federal court overturned Berkeley, California's precedent-setting measure for new buildings, putting in jeopardy scores of similar rules.
When the city of Berkeley, California, passed the country’s first ban on the use of natural gas in new buildings in the summer of 2019, environmental advocates celebrated the move as an important precedent for other cities to follow. And follow they did: There are now at least 99 similar ordinances in place across the country, the vast majority of which require appliances like stoves and heaters to be electric. But on Monday, a federal appeals court threw many of those bans into question.
A three-judge panel of the Ninth U.S Circuit Court of Appeals in San Francisco ruled that Berkeley’s ban is preempted by a federal law, and is therefore illegal. The decision marks a victory for the California Restaurant Association, the organization that sued the city shortly after it passed the ordinance banning the use of natural gas in new construction, claiming that such a measure would damage the restaurant industry.
“Many restaurants will be faced with the inability to make many of their products which require the use of specialized gas appliances to prepare, including for example flame-seared meats, charred vegetables, or the use of intense heat from a flame under a wok,” the lawsuit read.
But advocates argue that those concerns are dwarfed by a growing body of research that has found natural gas use in buildings not only releases huge quantities of greenhouse gasses, but also threatens people’s health. Studies have found that gas stoves are responsible for approximately 13 percent of childhood asthma cases in the U.S.; they also leak the potent greenhouse gas methane and the cancer-causing chemical benzene even when they’re turned off.
“This ruling should be seen as the latest attack on these [natural gas bans] and, by proxy, the latest attack on the body of scientific evidence that’s been accumulating on the health and climate impacts of natural gas usage in the building sector,” said Seth Shonkoff, the executive director of the nonprofit research institute PSE Healthy Energy, in Oakland, California.
The Ninth Circuit’s ruling overturned the decision in 2021 of a lower court which upheld Berkeley’s ordinance. At question in the case was whether the federal Energy Policy and Conservation Act takes precedence over Berekley’s ordinance. That law, passed by Congress in 1975 in response to a major oil crisis, was intended to increase domestic energy production and supply.
The American Gas Association celebrated the federal court’s decision, calling it a “huge step” that would “safeguard energy choice for California consumers and help our nation continue on a path to achieving our energy and environmental goals.” The statement echoes the argument, used by many fossil fuel companies, that natural gas is less carbon-intensive than coal and is therefore an ideal “transition fuel” if the country is eventually going to run on clean energy. Many scientists and policy experts have ridiculed this argument, noting that renewables have become more economically viable, and that natural gas facilities are still major contributors to greenhouse gas emissions.
Municipal gas bans in buildings could deal a financial blow to the fossil fuel industry. According to the U.S. Energy Information Administration, the use of gas in residential and commercial structures accounted for 8.2 trillion cubic feet in 2021. In comparison, utilities used approximately 11.3 trillion cubic feet to power the grid. If the trend of cities taking up gas bans in buildings continues, companies like ExxonMobil and ConocoPhillips may have to rethink their business models.
Environmentalists said that the Ninth Circuit’s decision won’t necessarily upend other cities’ efforts. Matt Vespa, an attorney at the environmental group Earthjustice, told the Washington Post that Berkeley’s rule prohibited gas lines in new buildings, whereas many other cities achieve natural gas bans by introducing tough efficiency standards into their building codes. Nonetheless, according to Vespa, 26 of the 75 California cities with gas bans could see their rules overturned by the federal court’s ruling.