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