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Federal Appeals Court Tosses Berkeley’s Ordinance Banning Natural Gas in New Construction

Federal Appeals Court Tosses Berkeley’s Ordinance Banning Natural Gas in New Construction

“And no doubt Berkeley’s ban, if adopted by States and localities throughout the country, would ‘significantly burden’ the ‘sale’ of covered products ‘on a national basis.'”

The Ninth U.S. Circuit Court of Appeals in San Francisco struck down the Berkeley, CA ordinance that bans natural gas lines in new construction.

Berkeley banned natural gas in 2019.

The CRA filed its lawsuit, contending that the law “was an attempt to regulate energy efficiency and was therefore overridden by the federal Energy Policy and Conservation Act, which sets energy-efficiency standards for a number of appliances, including air conditioners, furnaces and water heaters.”

U.S. District Judge Yvonne Gonzalez Rogers of Oakland upheld the law:

Under federal law, “states and localities expressly maintain control over the local distribution of natural gas,” Gonzalez Rogers said Tuesday in a ruling dismissing the suit.

She said the federal law cited by the restaurant owners “is designed to avoid a patchwork of state efficiency standards for certain covered appliances; nothing in the statute evinces legislative intent to require local jurisdictions to permit the extension of natural gas service.”

A three-judge panel on the court disagreed with Gonzalez Rogers.

From the opinion:

By completely prohibiting the installation of natural gas piping within newly constructed buildings, the City of Berkeley has waded into a domain preempted by Congress. The Energy Policy and Conservation Act (“EPCA”), 42 U.S.C. § 6297(c), expressly preempts State and local regulations concerning the energy use of many natural gas appliances, including those used in household and restaurant kitchens. 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.

The California Restaurant Association [CRA], whose members include restaurateurs and chefs, challenged Berkeley’s regulation, raising an EPCA preemption claim. The district court dismissed the suit. In doing so, it limited the Act’s preemptive scope to ordinances that facially or directly regulate covered appliances. But such limits do not appear in EPCA’s text. By its plain text and structure, EPCA’s preemption provision encompasses building codes that regulate natural gas use by covered products. And by preventing such appliances from using natural gas, the new Berkeley building code does exactly that.

We thus conclude that EPCA preempts Berkeley’s building code’s effect against covered products and reverse.

The judges looked at the plain language within the EPCA. They doubted “that Congress meant to hide an exemption to the plain text of EPCA’s preemption clause in a mathematical equation.”

One example of why the judges struck it down comes from § 6297(d)(3).

It clearly states that the federal government cannot provide a waiver if the state’s law “will significantly burden manufacturing, marketing, distribution, sale, or servicing of the covered product on a national basis.”

“So the federal government must consider the complete lifecycle of an appliance—from manufacturing to servicing—in reviewing a waiver petition,” wrote Judge Bumatay. “Such a provision would make little sense if the scope of EPCA’s preemption ends with the design or manufacture of the product.”

The panel even hinted laws like Berkeley’s ban would not survive in the courts: “And no doubt Berkeley’s ban, if adopted by States and localities throughout the country, would ‘significantly burden’ the ‘sale’ of covered products ‘on a national basis.'”

The CRA celebrated the decision:

“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.”

It’ll be interesting to see how cities, states, and even the Biden administration will proceed concerning natural gas stoves.

A Biden official put gas stove bans on national headlines in January. He tried to deny that he ever said the government is coming for your stove.

But as we can tell from the Berkeley ban, which came into law in 2020, cities and states have already started banning natural gas.

California has already banned new sales of gas stoves and gas water heaters by 2030.

Leslie wrote last month that New York has jumped on the bandwagon. Gov. Kathy Hochul wants to ban natural gas hookups in new construction.


Here’s a report from three years ago when the Berkeley City Council started debating the ban.


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Subotai Bahadur | April 17, 2023 at 9:44 pm

If it will harm the country, it is Leftist policy. Expect at least some Leftist states to defy the courts. Hopefully, they will be slapped down, but with those currently in power nationally, that cannot be depended on. For those areas cut off from natural gas [and suffering from electricity shortages], it is going to be interesting.

I am an old fart. I have lived in a 100+ year old cabin in the mountains that was built originally as part of a Wells Fargo stage stop, and heated it with a wood stove. Try doing that in Berkeley. Leaving aside the impossibility of getting a supply of wood for each house, there is the matter of the thickness of the air. I am looking forward to Leftist areas dealing with the consequences of their actions. And I will have minimal sympathy.

Subotai Bahadur

Good. Now let’s apply this principle (as I’ve been advocating for decades) to firearms. The feds regulate their sale via FFLs, yes? Does any state have a carve-out from Congress, allowing it to regulate the sale of guns (as CA has over automobiles, allowing it to set its own, more stringent, emissions standards)? I think not.

    Milhouse in reply to DaveGinOly. | April 17, 2023 at 11:15 pm

    That’s not how preemption works. Federal law that doesn’t directly conflict with state law doesn’t preempt it, unless it says it does. The legislation covering appliances says that it preempts all state and local laws on this topic. The legislation covering FFLs doesn’t say that, so it doesn’t preempt unless there’s a conflict.

    ooddballz in reply to DaveGinOly. | April 18, 2023 at 4:00 am

    I have a GREAT idea!
    Let’s turn MILLIONS of law-abiding LEGAL firearm owners into criminals overnight, simply because of my fear of an inanimate object, said no intelligent person ever.

      Milhouse in reply to ooddballz. | April 18, 2023 at 9:38 am

      Huh? If that’s supposed to be a response to DaveGinOly’s suggestion, I don’t see how. Having federal regulation of guns preempt all state and local laws would be a good thing; it would turn tens of thousands of illegal firearm owners into legal ones, not the other way around. And congress could do that if it wanted to; but it doesn’t. DaveGinOly thought it might happen automatically, but it doesn’t.

        Well, kind of no, Milhouse. The Constitution is clear that all people in all states have the right to bear arms. The feds can’t overturn that without repealing the Second Amendment. Nor can states. Congress cannot “preempt” the Constitution regarding the Tenth Amendment if Congress does not already have purview over a given right (and 2A takes the right to bear arms out of Congress’ AND the states’ purview).

        The problem for the left is that we have a Second Amendment, and short of repealing it, they have no means to ban guns. Any federal law they passed attempting such would be, on its face, unconstitutional. Likewise, states cannot enact or enforce laws that are unconstitutional (they try all the time, of course, but it usually gets flattened by SCOTUS, whose job it is to protect the Constitution and the Constitutional rights of the people).

Overturned en-banc in 3 … 2 …. 1 …

E Howard Hunt | April 18, 2023 at 6:49 am

What wonderful victories are such as these. Leftist lunatics do something outrageous and illegal, and years later, after incurring punishing legal expenses, a respite is granted awaiting the next stunt.

Steven Brizel | April 18, 2023 at 9:17 am

Good riddance to an oppressive law!

We really need to start hunting down these communists and … (use your imagination).

Hell has apparently frozen-over. The 9th Circuit Ct of Appeals rules in accordance with a plain reading of the applicable statutes??? . . . What is going on here?

The 9th Circuit has proudly held the record for being the MOST reversed Circuit Court, year after year. Now, evidently a few renegades have decided that reinforcing the law is more important than creating new wokist rights? Hogwash. If we can’t depend upon the 9th Cir judges to legislate new woke rights, then Lucifer’s gonna need a pair of skates that fit a cloven hoof.

    Oregon Mike in reply to Q. | April 19, 2023 at 12:31 am


    Q, you might want to note that when Judge Diarmuid O’Scannlain is on the panel, you’ll get either a correct ruling on the law and constitution, or a well thought out and often scathing dissent. Appointed by President Reagan, he’s been on the 9th Circuit since 1986. Trouble is, there’s not enough of him to go around!

All well and good, and congratulations to CRA on their win, but we can’t feel vindicated insofar as the Dems in DC are still planning to do what Berkeley now can’t.

BierceAmbrose | April 19, 2023 at 10:59 pm

Now do New York State…