US Ruling Could Upend Gas Bans Far Beyond Berkeley

This week’s US federal court decision tossing Berkeley, California’s ban on natural gas infrastructure in most new construction could have widespread implications for similar laws across the country, legal experts and industry officials say — although observers differ on how far they believe the ruling can be applied.

The 9th Circuit Court of Appeals ruling technically only applies to Berkeley’s 2019 ban — the first of more than 100 such laws passed in California and several other states. But it is a test case for the cascading movement to use local legislation to electrify appliances in new homes and businesses at the expense of natural gas.

“The way this decision plays out in each jurisdiction may be different based on the language of code or ordinance enacted, as well as the state and community’s legal framework,” explains Dave Schryver, CEO of the American Public Gas Association (APGA), which represents hundreds of municipal utilities that could be subject to such bans.

Yet Taylor Holcomb, a partner specializing in energy, environmental and regulatory law at Jackson Walker, sees widespread impacts just the same. “While other cities with similar gas bans will argue that their ordinances are distinguishable from Berkeley’s, the bottom line is that this is a broad ruling that binds federal judges in the 9th Circuit,” he told Energy Intelligence. That jurisdiction covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

Holcomb added that while the ruling won't "automatically bind" judges outside the 9th Circuit, "it will be persuasively used by gas proponents in other states to challenge similar bans.” AGPA's Schryver added that the ruling could also have "significant ramifications" for localities mulling their own restrictions.

Federal Pre-Emption

Ruling on a case brought by the California Restaurant Association, a three-judge panel found that the 1975 federal Energy Policy and Conservation Act (EPCA) pre-empts Berkeley’s amendment to its municipal code. In doing so, the judges rejected a lower court’s decision in 2021 upholding the ordinance, which banned natural gas piping from feeding into new construction, thereby preventing the use of gas-fired appliances in new homes and businesses.

“[EPCA] expressly pre-empts state and local regulations concerning the energy use of many natural gas appliances, including those used in household and restaurant kitchens,” a court summary of the panel’s decision said. Berkeley had hoped to avoid triggering the EPCA pre-emption by targeting related infrastructure rather than the appliances themselves, but the judges did not support such a distinction.

Holcomb said the ruling came down to the understood breadth of EPCA's pre-emption clause. "The answer? Broad. EPCA pre-emption extends to appliances and to related onsite infrastructure," he explained.

The judges held that states and cities cannot “dodge pre-emption by hiding energy use regulations in building codes,” the attorney said. “So any building codes across the US pertaining to appliances that function as energy use regulations are now more vulnerable to challenge than ever.”

Amy Turner, senior fellow at Columbia’s Sabin Center for Climate Change Law, has a narrower read of the ruling and expressed concern that local governments both within and outside the 9th Circuit could respond to the decision as if it had sweeping applications. “Most local governments have enacted their building electrification requirements through building or building energy codes, which are not implicated in the decision,” she told Energy Intelligence.

‘Can’t Be Stopped’

Berkeley officials approved the first US gas ban in new homes and businesses as part of city-wide efforts to cut greenhouse gas emissions in line with California’s broader shift away from fossil fuels.

Despite strong pushback from the gas industry, commercial end-users and others, more than 70 other California communities — including San Francisco and Los Angeles — have adopted similar measures since. Local governments from Oregon to New England have also followed suit, with some modeling them after Berkeley’s and others using different means, such as tougher energy efficiency standards in building codes. How those variations hold up in light of the 9th Circuit ruling remains to be seen.

In an effort to stem the tide, 20 Republican-led states have passed or are considering laws that would prevent local governments from banning gas installations, maintaining that an electric-only mandate would drive up utility costs for consumers.

Berkeley City Council member Kate Harrison, who authored the 2019 ordinance, lambasted the ruling but also seemed unfazed and indicated that an appeal is likely. “This is a movement that cannot be stopped,” she said, likening the gas ban fervor to the campaign to legalize same-sex marriage, which the US Supreme Court ultimately upheld.

“There are many flaws in the decision. But above all the theory from the panel boils down to the idea that a federal law merely regulating the efficiency of home appliances somehow allows the fossil fuel industry a perpetual right to access gas in new buildings,” Harrison said. “Federal law says nothing about limiting the overall rights of cities to regulate the fuel types that power our cities.”

This story was originally published in Oil Daily sister publication Natural Gas Week.