Federal Appeals Court Strikes Down Democratic City’s Natural Gas Ban Backed By Biden Admin

Unanimously, a federal appeals court said on Monday that Berkeley, California’s proposed ban on natural gas would violate federal law.

The federal Energy Policy and Conservation Act (EPCA) of 1975 was found to be breached by Berkeley’s natural gas pipe restriction, which the city’s council adopted in 2019 as part of their climate change strategy.

The city essentially violated the EPCA, which forbids municipal restrictions from affecting the energy consumption of natural gas appliances, by forbidding gas lines in new building construction.

“Instead of directly banning those appliances in new buildings, Berkeley took a more circuitous route to the same result. 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. EPCA thus preempts the Ordinance’s effect on covered products,” Judge Patrick Bumatay published a judicial opinion on Monday.

The prohibition was approved by Berkeley’s city council in July 2019, making Berkeley the first city in the US to do so. It was scheduled to take effect in January 2020.

The bill’s author, Berkeley Councilwoman Kate Harrison, stated at the time that it was a component of the city’s initiative to take “more drastic action” against climate change and reduce greenhouse gas emissions.

However, the California Restaurant Association (CRA) filed a federal lawsuit contesting the city’s power to adopt a legislation prohibiting new natural gas hookups months after it was authorized.

The CRA filed an appeal after a lower court decided in Berkeley’s favor in July 2021, which resulted in the decision on Monday.

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

The Department of Energy is still considering regulations that would limit the kinds of natural gas stoves that manufacturers may sell at the same time as the decision made on Monday.

It also comes after a Consumer Product Safety Commission (CPSC) member who was nominated by President Biden made news when he told Bloomberg in early January that a ban on gas stoves was “on the table” due to the product’s alleged negative effects on health.

Later, the White House opposed a ban, but the CPSC insisted that it would continue to solicit public input on gas stove safety.