Berkeley to repeal ban on installing gas appliances
Berkeley has agreed to repeal its first-in-the-nation ban on installing natural gas appliances in new buildings after a U.S. appeals court agreed with restaurant owners and business groups that the ordinance conflicts with federal energy regulation. The case could also invalidate similar laws in San Francisco, Los Angeles and other cities.
The California Restaurant Association, which sued Berkeley after passage of the ban in 2019, announced a settlement this week requiring the city to immediately halt enforcement of the law and start the procedures to repeal it. On Thursday, U.S. District Judge Yvonne Gonzalez Rogers, whose initial ruling upholding Berkeley’s ordinance was overturned on appeal, put the case on hold until September.
The ordinance, which took effect in 2020, was intended to reduce emissions of greenhouse gases that contribute to global warming. It required new residential and commercial buildings to use entirely electrical lines and infrastructure unless a building could not be constructed without natural gas piping, or the city granted an exemption in the “public interest.”
Natural gas bans have also been enacted in San Francisco and Los Angeles, and overall more than 70 California communities have taken steps to either encourage or require new buildings to rely on electricity rather than gas.
But the California Restaurant Association and its allies contended the local ban violated a 1975 federal law that authorized U.S. officials to set energy standards for appliances such as furnaces and water heaters.
Gonzalez Rogers upheld the ordinance in 2021, saying Berkeley was not trying to regulate energy efficiency for the suppliers, only the fuel they used. Last April, however, a panel of the 9th U.S. Circuit Court of Appeals said a ban on appliances such as gas stoves “impacts the quantity of energy” they use, which is exclusively regulated by the federal government.
In a 3-0 ruling, Judge Patrick Bumatay said that under the 1975 federal law, states and local governments “could not prevent consumers from using covered products in their homes, kitchens, and businesses.”
Berkeley asked the full appeals court for a rehearing before a larger panel and was joined by state and local governments, conservation groups and President Joe Biden’s administration. Biden’s lawyers told the court that the ruling would “cast a cloud of uncertainty over any health or safety law that may indirectly affect somebody’s ability to use a product for which the federal government has issued an energy conservation standard.”
But the appeals court announced in January that a majority of its 29 judges had declined to vote for a rehearing. Eleven judges dissented, all appointees of Democratic presidents. Berkeley did not seek review in the U.S. Supreme Court.
The settlement was welcomed Friday by the California Restaurant Association’s chief executive officer, Jot Condie.
“Climate change must be addressed, but piecemeal policies at the local level like bans on natural gas piping in new buildings or all-electric ordinances, which are preempted by federal law, are not the answer,” he said in a statement.
The environmental group Earthjustice, which supported the Berkeley ordinance, said the outcome of the case was disappointing but would not end local efforts to reduce natural gas emissions and combat climate change.
“Since 2019, cities and local air quality agencies have developed a wide variety of policy paths to move forward, from energy codes to air quality protections, to protect their residents and help us all step into a zeroemissions future,” said Earthjustice attorney Matt Vespa. Citing recent state plans to promote energy-efficient temperature systems in new residential buildings, he said, “California is still on track to ensure all residents have access to healthier homes.”