On January 2, the U.S. Court of Appeals for the Ninth Circuit issued an order declining to rehear a case en banc in which it had declared Berkeley, California's gas ban to be preempted by federal law.
Berkeley passed its gas ban in 2019 with an ordinance titled “Prohibition of Natural Gas Infrastructure in New Buildings.” By changing city building codes, it prohibited the customer-owned piping that receives gas distributed by the utility at the meter. The city’s goal was to “eliminate obsolete natural gas infrastructure and associated greenhouse gas emissions in new buildings where all-electric infrastructure can be most practicably integrated, thereby reducing the environmental and health hazards produced by the consumption and transportation of natural gas.”
The California Restaurant Association brought a legal challenge in federal district court and lost, but that decision was reversed by the U.S. Court of Appeals for the Ninth Circuit in April 2023. The Ninth Circuit ruled that the Berkeley ordinance was preempted by federal law, the Energy Policy and Conservation Act (EPCA), the same law under which the Department of Energy (DOE) establishes appliance efficiency standards. Although remanding the case for further legal proceedings, the court invalidated the Berkeley ordinance and others like it. The recent denial of rehearing (an opportunity to argue the case before a larger panel of judges) means that the April 2023 decision still holds. While the decision is controlling in the Ninth Circuit (CA, WA, OR, NV, AZ, ID, MY, AK, HI), it is only persuasive in other federal jurisdictions. The impact on other ordinances structured differently that compel all-electric codes is less clear. But the force of this opinion has been seen to “chill” the adoption of some local ordinances.
Legislative and regulatory efforts, like local natural gas bans, continue to threaten Americans’ ability to choose the best energy source for their lifestyles and budgets. While half of U.S. states have passed “ban the ban” laws that prohibit local-level bans of any given energy source, there are still numerous other cities and local governments across the country that have taken a number of different actions in an effort to ban the direct use of natural gas. A similar lawsuit involving New York’s state-wide gas ban is currently underway in the U.S. District Court for the Northern District of NY, which falls under the Second Circuit.
The city of Berkely now has the option to appeal the case to the U.S. Supreme Court. APGA will continue to follow this case and provide updates to members.
For questions on this article, please contact Renée Lani of APGA staff by phone at 202-464-0836 or by email at rlani@apga.org.