When Berkeley became the first U.S. city to ban construction of new natural gas lines in 2019, it pioneered an approach to reducing carbon emissions and pollutants that has since spread around the Bay Area and across the country.
Now Berkeley has become a pioneer of a different sort, as an April appellate court ruling against the city’s ban is imperiling similar restrictions on natural gas and challenging the growing national electrification movement.
While Berkeley’s ordinance winds its way through the courts, laws like it are stuck in legal crosshairs — including municipal code amendments in Oakland, San Jose and San Francisco. Cities intent on restricting the use of natural gas may need to find a different approach, said Amy Turner, a senior fellow at the Sabin Center for Climate Change Law at Columbia Law School.
The controversy is rooted in surprising ground: The 1975 Energy Policy and Conservation Act, originally an oil-crisis-era attempt to regulate the nation’s energy. The act worked to conserve the nation’s energy supply, and gave the federal Department of Energy the sole authority to set appliance energy standards, not individual states or cities.
Nearly a half-century later, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit has ruled this law restricts the approach that Berkeley — and the roughly two dozen others modeled after it, nationally — used to ban a critical piece of natural gas piping needed to connect supply lines to individual buildings. Banning the piping meant banning the gas.
Many environmental leaders applaud such anti-gas policies, given that residential and commercial buildings contribute roughly 25% of all state greenhouse gas emissions, according to the California Energy Commission. Soon after Berkeley’s natural gas ban passed, lawmakers in more than 70 California cities — as well as local governments in Massachusetts, New York, Washington, Oregon and Colorado — followed suit with variations of their own.
But opponents, including the California Restaurant Association, a trade group, quickly filed a lawsuit against Berkeley’s ban in November 2019, seeking to safeguard natural gas kitchen appliances. The Energy Act was critical to its arguments.
The association did not respond to requests for comment, but according to its lawsuit, the city’s ordinance harms its industry as many of its members would be prohibited from moving into or constructing new buildings if they want to use natural gas. Many restaurateurs and foodies are adamant that food cooks better over gas, “whether it be flame-seared meats, charred vegetables, or the use of intense heat from a flame under a wok,” the lawsuit said.
In a similar but more poetic vein, one California chef has compared the gas restrictions to “taking paint away from a painter and asking them to create a masterpiece.”
Some Republican-led states — including Arizona, Ohio and Texas — have outright blocked bans similar to Berkeley’s.
While the ordinance in question doesn’t directly target appliances, the appeals court panel ruled April 17 that gas bans do create remote, indirect effects on the energy use of such equipment. By limiting an end user’s ability to employ products that are covered by the Nixon-era ruling, the court argued that Berkeley overstepped its authority on regulating energy use.
This interpretation was a surprise to Turner, who said Berkeley wasn’t changing the ways that appliance manufacturers have to make their products — an obvious violation of the Energy Act’s preemption — but instead was regulating energy distribution across the city. Whether or not this is in line with Congress’ intended motivation for passing the law in the 1970s, Turner said judges can rule based on the wording of the law alone.
She doesn’t think the decision will spark widespread legal ripple effects, since its jurisdiction only impacts 11 Western states and territories, and will likely be appealed to a second, larger panel of judges. The initial appeals court judges were conservative Republicans.
Additionally, the ruling doesn’t impact cities that have taken a building code-based approach to natural gas bans, including Mountain View, Palo Alto and Santa Clara. Turner said that’s because specific exceptions have been carved out of the federal law to allow cities to add requirements or strong incentives for all-electric new construction into building and energy codes — an alternative to banning gas piping, itself.
Berkeley Councilmember Kate Harrison, who authored the 2019 ordinance, said she was disappointed by the Ninth Circuit’s endorsement of “such a radical theory,” which she thinks is politically motivated, and urged the city attorney to continue fighting the case.
“Legal theories aside, we also know what this is really about: the idea that business profits trump local and state government’s right to protect their community’s right to health and a habitable climate,” Harrison said in a statement. “This is a movement that cannot be stopped.”
Turner agrees. And rather than focus on pessimistic headlines about the viability of natural gas bans, she hopes more cities follow Berkeley’s lead.
“They sort of serve as policy laboratories, where they can develop these different approaches, share them with one another and learn when something doesn’t work,” Turner said of the cities. “It’s because of Berkeley that dozens of other local governments in California figured out this code approach, and that’s really significant.”
