The politically liberal enclave of Berkeley, California became the first U.S. city to adopt a ban on natural gas in new homes and buildings in 2019, which started a climate change-driven effort in dozens of other cities and counties that’s morphed into a heated debate about the future of gas stoves.
Late last month, the Ninth U.S. Circuit Court of Appeals in San Francisco sided with the California Restaurant Association to halt the city’s effort, saying it violates federal law that gives the U.S. government the authority to set energy-efficiency standards for appliances.
“The Ninth Circuit has unanimously affirmed the central issue in this case: local ordinances cannot override federal law,” said California Restaurant Association (CRA) President and CEO Jot Condie. “Cities and states are not equipped to regulate the energy use or energy efficiency of appliances that businesses and homeowners have chosen; energy policy and conservation is an issue with national scope and national security implications. This ordinance, as well as the solution it seeks, is an overreaching measure beyond the scope of any city.”
“Natural gas appliances are crucial for restaurants to operate effectively and efficiently, as they allow for a wide variety of cuisines and innovations in the restaurant industry. Cities and states cannot ignore federal law in an effort to constrain consumer choice, and it is encouraging that the Ninth Circuit upheld this standard.”
In addition to ruling that federal law pre-empts the City of Berkeley’s natural gas ban, the Ninth Circuit found that the CRA had standing to bring its claim. The panel ordered that the District Court, on remand, reinstate the City of Berkeley’s state law claims.
The CRA is represented by Reichman Jorgensen Lehman & Feldberg (RJLF.) In response to the Ninth Circuit decision, RJLF Partner Sarah O. Jorgensen released the following statement: “The Ninth Circuit’s ruling today underscores the importance of a consistent national energy policy, which was Congress’ intent the whole time. Cities and states should not be permitted to overrule energy decisions that affect the country as a whole. The panel’s unanimous decision that Berkeley’s ban on natural gas piping is preempted by EPCA sets an important precedent for future cases, especially with other cities considering similar bans or restrictions on the use of natural gas.”
The ruling has drawn criticism from Berkeley officials and environmentalists, although it’s unclear what kind of impact the decision will have on climate advocates’ fight to go electric, given its narrow scope and the possibility of an appeal to a broader panel of judges. Berkeley banned the installation of natural gas piping in new construction, which the judges said turned the energy use of an appliance to a quantity of zero.
Berkeley City Councilmember Kate Harrison, who authored the 2019 ordinance, said she doesn’t know how the city council will respond, but noted that a ban on natural gas or effort to curtail the use of natural gas has spread to 70 communities in California, and even to Seattle and New York City. “This is a movement that can’t be stopped,” she said. “They’ve conflated a 1970s regulation about the efficiency of appliances with what kind of materials can come into our house. We did not change appliances, we changed the source of fuel that can come into new buildings.”
Gas stoves are in the spotlight in America’s culture wars, as more Democrat-controlled cities move to limit their use, citing indoor pollution concerns and climate policies that aim to phase out fossil fuels in favor of carbon-free electricity.
In January, comments from the federal Consumer Product Safety Commission that “any option is on the table” to regulate gas stoves sparked outrage from conservatives who said it amounted to government intrusion in people’s homes. The White House has said that President Joe Biden doesn’t support a ban on gas stoves.
The ruling in Berkeley last month does not affect the majority of cities and counties that have already banned or curtailed natural gas through building codes that meet certain federal requirements and are allowed by the decision, environmental groups said. Other municipal policies to regulate gas distribution and air emissions are not impacted either.
About two dozen cities may be at risk because they are constructed similar to Berkeley, according to the Building Decarbonization Coalition, a nonprofit aimed at eliminating fossil fuels. They include San Francisco, Los Angeles and Oakland. But not all agreed the ruling negated their city’s ordinance. “San Francisco’s ordinance differs from Berkeley’s and remains in effect,” said Jen Kwart, spokesperson for the office of City Attorney David Chiu.
Judge Patrick Bumatay wrote in the 3-0 Ninth Circuit ruling that a local ordinance that bans appliances such as gas stoves “impacts the quantity of energy” they consume, which is under federal regulation. The ruling overturned the decision of a judge in a lower court in 2021, dismissing the case because city officials were not trying to regulate energy efficiency for appliances but only the fuel they used.
One likely next step is to seek a rehearing with a larger panel of 11 judges on the appellate court that might lean more liberal, said Josh Blackman, a professor at South Texas College of Law Houston.
The three judges in Monday’s 3-0 ruling were selected at random, and include Bumatay and Judge M. Miller Baker, who is visiting from the U.S. Court of International Trade. Both are appointees of former President Donald Trump, and the third, Judge Diarmuid O’Scannlain, was appointed by former President Ronald Reagan. The panel was “a very strange trifecta, that’s just a matter of statistics,” Blackman said. The Ninth U.S. Circuit Court of Appeals includes California, Washington state and seven other states in the western region, and helps set legal precedent on some of the country’s biggest issues, including gun control and labor.
Last year, the California Air Resources Board voted to ban sales of new gas furnaces and water heaters in 2030. Last month, the Bay Area Air Quality Management District adopted rules to phase out and eventually ban the sale of gas water heaters and furnaces.
