Federal appeals court scraps Berkeley, California’s ban on natural gas hookups

A San Francisco federal appeals court decided on Monday to reverse the city of Berkeley, California’s ban on natural gas infrastructure in new buildings — finding that such a regulation violates national energy policy.

Berkeley’s first-in-the-nation ban, which took effect on Jan. 1, 2020, prohibited the installation of gas piping and venting in new building construction when “physically feasible.” Many cities in California and across the country later followed suit with similar bans.

Monday’s ruling, delivered by the 9th U.S. Circuit Court of Appeals, reversed a district court’s dismissal of a California Restaurant Association lawsuit, which claimed the federal Energy Policy and Conservation Act (EPCA) preempts Berkeley’s prohibition.

The EPCA, passed in 1975, allows the federal government “to reduce demand for energy” by implementing conservation plans and setting efficiency standards for various products.

The act “expressly preempts state and local regulations concerning the energy use of many natural gas appliances,” according to Monday’s court opinion.

To circumvent this measure, the city of Berkeley instead “took a more circuitous route to the same result,” by “enacting a building code that prohibits natural gas piping into those buildings, rendering the gas appliances useless,” the opinion explained.

Berkeley argued the EPCA only applies to regulations that impose standards on products themselves — and not on those “that impact the distribution and availability of energy sources,” according to the ruling.

The three Republican judges — including two Trump appointees — who drafted the opinion granted their support to the California Restaurant Association’s appeal, expressing their “doubt that Congress meant to hide an exemption to the plain text of EPCA’s preemption clause.”

The California Restaurant Association president and CEO Jot Condie hailed the decision on Monday, stressing cities and states “are not equipped” to regulate the energy efficiency of appliances chosen by businesses and homeowners.

“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,” Condie said in a statement.

Appliances powered by natural gas — particularly gas stoves — have sparked heated debate in recent months, particularly after a member of the federal Consumer Product Safety Commission floated the idea of stricter regulations on these products.

Fielding opposition from Republicans nationwide, the Commission chair ultimately said he did not plan to ban gas stoves and the agency had no proceedings to do so.

But a wide body of research suggests that gas appliances release health-harming air pollutants and planet-warming emissions, while one recent study linked 12.7 percent of childhood asthma cases to gas stove use.

Last month, the Bay Area Air Quality Management District — which includes Berkeley — adopted new rules that seek to eliminate harmful nitrogen oxide emissions from gas furnaces and water heaters, beginning in 2027.

This would essentially lead to a ban on gas furnaces and water heaters entirely because the only such products free of nitrogen oxides available today are electric appliances.

New York City voted in December 2021 to ban natural gas hookups in new construction in 2027, with some notable exceptions — including hospitals, commercial kitchens and laundromats. In Jan. 2022, New York Gov. Kathy Hochul (D) called for similar statewide action.

In response to the federal appeals court decision Monday, environmental groups stressed the ruling would have little influence on electrification policies nationwide.

Nonetheless, Matt Vespa, a senior attorney for Earthjustice, described the ruling as “misguided.”

“As we face a climate and air quality crisis from coast to coast, it is vital that cities and states maintain all legal pathways to protect public health,” Vespa said in a statement. 

“We’ll continue to fight to ensure this authority is preserved,” he added.