Berkeley cannot ban natural gas hookups, appeals court rules

By TOM JOYCE THE CENTER SQUARE CONTRIBUTOR

(The Center Square) — A California city tried to ban natural gas hookups, but a federal court said it cannot.

The Ninth Circuit U.S. Court of Appeals court ruled Monday that the ban enacted by Berkeley was illegal due to the Energy Policy and Conservation Act.

The decision marked a victory for the California Restaurant Association, which challenged the ordinance.

“Instead of directly banning those appliances in new buildings, Berkeley took a more circuitous route to the same result,” Judge Patrick Bumatay wrote in the court’s opinion on Monday. “It enacted a building code that prohibits natural gas piping into those buildings, rendering the gas appliances useless.”

“In sum, Berkeley can’t bypass preemption by banning natural gas piping within buildings rather than banning natural gas products themselves,” he continued. “EPCA thus preempts the Ordinance’s effect on covered products.”

In July 2021, the U.S. District Court for the Northern District of California ruled that it could not use the EPCA to preempt Berkeley’s ordinance because it did not directly regulate energy use or energy efficiency of appliances. Therefore, it argued that a total ban on natural gas infrastructure in new buildings was outside the law’s scope.

Attorneys general from California and New Jersey were among the states that backed Berkeley in the court case.

Judge Diarmuid F. O’Scannlain and U.S. Court of International

Trade Judge M. Miller Baker concurred with the ruling.

Judge O’Scannlain thinks that the EPCA overrules the ordinance. He also thinks the law is confusing because different courts have different opinions on dealing with cases where one law overrules another. He wants the Supreme Court to give clearer instructions for handling these situations.

“I am not convinced that we have correctly followed the Supreme Court’s instructions in this admittedly troubled area,”

Judge O’Scannlain wrote.

Judge Baker’s concurrence expressed doubts about the association’s standing, as the organization failed to identify a specific member harmed by the contested ordinance. However, he also concurred with the panel’s decision that the EPCA supersedes building codes that govern the use of natural gas for covered products. The California Restaurant Association supported the ruling and found the decision encouraging.

“The Ninth Circuit has unanimously affirmed the central issue in this case: local ordinances cannot override federal law,” said California Restaurant Association President and CEO Jot Condie. “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.”