The U.S. Court of Appeals for the Ninth Circuit has declined to reconsider a ruling preventing a ban proposed by the City of Berkeley, California, on new natural gas hookups from going into effect.
The panel’s Jan. 2 ruling was in response to a lawsuit filed by the California Restaurant Association (CRA) alleging federal law overruled the City of Berkeley’s ban on installing natural gas installations in newly constructed buildings.
The U.S. Court of Appeals for the Ninth Circuit ultimately denied Berkeley’s petition for rehearing en banc — a motion that received support from the Biden administration, Democratic-led states and environmentalists — after it failed to receive majority support from the court’s non-recused active judges. Berkeley filed the motion last year after the court in April that a Berkeley law banning natural gas pipes in new construction violated federal statute.
Background
Berkeley became the first U.S. city to ban gas stove hook-up installations in 2019 after the city council passed an ordinance requiring that new buildings be built all-electric, beginning Jan. 1, 2020.
Existing buildings were not affected by the ordinance, which aimed to curb greenhouse gas emissions.
In their lawsuit, the association—the largest nonprofit statewide restaurant trade group in the nation—argued that restaurants rely on natural gas for preparing certain foods and that the ban would impact the way chefs are trained to prepare food, which is typically via natural gas stoves.
Federal
They further argued the Energy Policy and Conservation Act (ECPA) of 1975 preempts the City of Berkeley’s ban on gas hookup installations in new residential and commercial buildings.
Under the ECPA, local regulations are prevented from impacting the energy use of natural gas appliances.
However, a lower court ruled in favor of Berkeley in July 2021, disagreeing with the restaurant association’s interpretation of federal energy law, prompting CRA to file an appeal.
Berkeley ‘Waded Into a Domain Preempted by Congress’
In April 2023, a three-judge panel of the federal appeals court reversed that earlier decision, prompting another challenge, this time by Berkeley city officials.
In their ruling on Tuesday, the Ninth Circuit panel wrote that, “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 expressly preempts State and local regulations concerning the energy use of many natural gas appliances, including those used in household and restaurant kitchens,” the panel wrote. “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 in those buildings from the point of delivery at a gas meter, rendering the gas appliances useless.”
“EPCA thus preempts Berkeley’s building code, which prohibits natural gas piping in new construction buildings from the point of delivery at the gas meter,” they concluded.
The ruling ensures residents ‘continue to have choices with respect to energy sources.
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