Federal appeals court strikes down Democratic city’s natural gas ban backed by Biden admin

A federal appeals court ruled unanimously Monday that a natural gas ban proposed by the City of Berkeley, California, would illegally circumvent federal law.

The US Court of Appeals for the Ninth Circuit ruled that Berkeley’s natural gas piping ban, which the city’s government passed in 2019 as part of its climate agenda, violated the federal Energy Policy and Conservation Act (EPCA) of 1975.

By banning gas pipes in new building construction, the city effectively violated the EPCA which prevents local regulations from impacting the energy use of natural gas appliances.

“Instead of directly banning those appliances in new buildings, Berkeley took a more circuitous route to the same result,” Judge Patrick Bumatay wrote in the opinion of the court Monday. “It enacted a building code that prohibits natural gas piping into those buildings, rendering the gas appliances useless.”

“In sum, Berkeley can’t bypass preemption by banning natural gas piping within buildings rather than banning natural gas products themselves,” he continued in the ruling. “EPCA thus preempts the Ordinance’s effect on covered products.”

In July 2019, Berkeley’s city council passed the ban which was set to go into effect in January 2020, making the city the first in the nation to approve such a measure.

Berkeley Councilwoman Kate Harrison, who authored the legislation, said at the time that it was part of the city’s effort to take “more drastic action” on climate change and curb greenhouse gas emissions.

A federal appeals court has struck down a natural gas ban proposed by Berkeley, California.
Christopher Sadowski

However, months after it was approved, the California Restaurant Association (CRA) filed a federal lawsuit challenging the city’s ability to pass a law banning new natural gas hookups.

After a lower court ruled in favor of Berkeley in July 2021, the CRA filed an appeal, leading to Monday’s ruling.

“The Ninth Circuit has unanimously affirmed the central issue in this case: local ordinances cannot override federal law,” CRA President and CEO Jot Condie said in a statement on Monday. “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,” Condie added. “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.”

The case drew the attention of industry groups that supported CRA — including the American Gas Association and Air Conditioning, Heating, and Refrigeration Institute — and environmental groups and other jurisdictions across the country that supported Berkeley’s ordinance — including the National League of Cities, California, Maryland, New York, Oregon, Washington, DC, and New York City.

In February 2022, the Department of Justice filed a brief in support of Berkely’s law, arguing the lower court was correct to uphold the city’s natural gas hookup ban.  

The ruling Monday, meanwhile, comes as the Department of Energy continues to consider regulations curbing which types of natural gas stoves manufacturers can sell.

And it comes after a President Biden-appointed member of the Consumer Product Safety Commission (CPSC) made headlines when he told Bloomberg in early January that a gas stove ban was “on the table” given the product’s purported impacts on health.

The White House later denounced a ban, but the CPSC said it would proceed with taking in public feedback on gas stove safety.

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