Berkeley’s breakthrough measure that banned the use of natural gas in new construction was overturned on Monday by a federal appeals court, thus supporting the argument made by restaurant owners who claimed that the city bypassed federal energy regulations when it approved the ordinance.
In September of last year, Santa Monica joined over 60 other cities across California, including Berkeley, in passing all-electric building codes. Known as Ordinance #2722, it prohibited gas infrastructure, commonly referred to as "natural gas piping," in new buildings.
While both the Berkeley and the Santa Monica zero emission building code incorporate an exemption based on "public interest," the Santa Monica Zero Emission Building Code allowed for permit applications for the two exceptions, "cooking appliances in commercial kitchens" and "medical buildings, laboratory equipment or clean-rooms."
The Berkeley municipal code was a little stricter. Exemptions exist if "the applicant establishes that it is not physically feasible to construct the building without natural gas Infrastructure" and "an equivalent all-electric system or design is not available." However, newly constructed buildings shall "nonetheless be required at a minimum to have sufficient electric capacity, wiring and conduit to facilitate future full building electrification."
The code was passed in the San Francisco suburb in 2020 and was intended to reduce emissions of greenhouse gasses that contribute to global warming. With some exceptions, it banned new residential and commercial buildings from installing natural gas piping in favor of electrical lines.
A lawsuit by the California Restaurant Association (CRA) claimed the regulation violated federal law that gives the government authority to set energy-efficiency standards for appliances such as stoves, furnaces and water heaters.
Two years ago, the Ninth Circuit Court of Appeals in San Francisco rejected a lower court judge’s decision that had upheld the Berkeley ordinance. In her 2021 decision, District Judge Yvonne Gonzalez Rogers said the city was not trying to regulate energy efficiency for appliances, only the fuel they used.
However, 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 regulated by the federal government.
Sarah Jorgensen, partner with Reichman Jorgensen Lehman & Feldberg, who represent the CRA, said in a 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 [Energy Policy and Conservation Act] sets an important precedent for future cases, especially with other cities considering similar bans or restrictions on the use of natural gas."
The ruling was expected to be appealed, according to a statement from a group of environmental advocates.
Matt Vespa, a senior attorney with the nonprofit Earthjustice, called the decision misguided.
"As we face a climate and air quality crisis from coast to coast, it is vital that cities and states maintain all legal pathways to protect public health, cut climate emissions, and increase safety by addressing pollution from buildings, and we’ll continue to fight to ensure this authority is preserved," Vespa said in a statement.
Additional reporting from the Press Association.
