The city of Berkeley, California, has agreed to repeal the nation’s first-ever gas ban, raising questions about the fate of similar restrictions on fossil fuels across the West.
Berkeley unveiled the decision about its 2019 restrictions on gas hookups for new buildings as part of a legal agreement Friday ending a lawsuit brought by the California Restaurant Association. Berkeley said it will stop enforcing the policy while it goes through the legal process of repealing the ban.
The California Restaurant Association touted the settlement, saying it should set a precedent for dozens of cities and counties in California to rescind their own gas bans modeled after Berkeley’s.
“Climate change must be addressed, but piecemeal policies at the local level like bans on natural gas piping in new buildings or all-electric ordinances, which are preempted by federal energy laws, are not the answer,” said Jot Condie, president and CEO of the CRA, in a statement. “Cities must comply with the law. Rather, the ban was passed with a disregard for available cooking technologies and ultimately for small businesses in the community that rely on gas-burning equipment for their cuisines.”
But advocates for decarbonizing buildings say the court decision and Berkeley’s repeal only marks the end of a chapter — and may even open the door for more durable strategies to phase out fossil fuels.
“It’s a huge bummer, but ultimately, it’s not going to stall the transition,” said Sage Welch, principal and founder of the climate and energy communications firm Sunstone Strategy. “We’re in a really different place this spring than we were last spring, from a policy level across the board on a lot of fronts. There’s a lot of momentum to continue the transition of buildings.”
In the years after Berkeley announced its policy — which required new residential and commercial buildings to rely only on electrical lines and infrastructure with a few exceptions — dozens of other California cities adopted their own versions of the so-called gas bans, including Los Angeles, San Francisco and Sacramento.
A decision last April in the U.S. Court of Appeals for the 9th Circuit, however, thrust those policies into uncertainty. A three-judge panel on the circuit ruled that Berkeley’s ban violated the federal Energy Policy and Conservation Act (EPCA), which gives the U.S. Department of Energy the ability to set energy efficiency standards and bars states or localities from setting their own rules.
The 9th Circuit in January also declined to rehear the case striking down Berkeley’s ordinance.
In the aftermath of the April decision, California cities including Santa Cruz and Encinitas rescinded their bans, while others like Sacramento elected not to enforce them.
But the court ruling also prompted a renewed look at how local areas could strengthen their building codes to encourage electrification without falling into the same legal challenge as Berkeley. Under California law, municipalities can set their own building codes that are stricter than state regulations.
San Jose, San Luis Obispo and Santa Cruz, for example, adopted “fuel-neutral” ordinances in recent years that require higher energy performance regardless of power source. The ordinances do not ban natural gas for heating or cooking, but facilitate adoption of all-electric appliances because those technologies make it easier for buildings to meet the performance requirements.
The policy is similar to a standard adopted in Seattle last year, which requires large buildings to achieve net-zero emissions by 2050 but does not ban any fuel source.
California’s own building codes also favor electrification, including by eliminating natural gas line extension subsidies for all new mixed-fuel buildings. The drop in prices of electric appliances and rooftop solar — helped by federal tax credits — has also helped encourage electrification of buildings.
Matt Vespa, an attorney with Earthjustice, said the updated codes show how cities have used the year since the Berkeley gas ban was first struck down to evaluate their options.
“The Berkeley approach was sort of elegant and simple. They said they found gas to be harmful and hazardous both for human health and for the climate, so we are prohibiting new connections,” said Vespa. “But there are other approaches that can get to the same outcome.”
A tangled legal history
After the April decision, the 9th U.S. Circuit Court of Appeals issued an amended opinion this January rejecting the Berkeley ordinance for violating federal law.
“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,” said Judge Patrick Bumatay writing the opinion for the court, initially filed in April 2023.
EPCA “expressly preempts State and local regulations concerning the energy use of many natural gas appliances, including those used in household and restaurant kitchens,” added Butamay, a Trump pick.
Judge Diarmuid O’Scannlain and Judge M. Miller Baker both wrote concurring opinions in the case. Baker, who was appointed to the U.S. Court of International Trade by then-President Donald Trump, was sitting by designation on the 9th Circuit.
The decision reversed a 2021 ruling by a lower bench where the judge said she did not see how EPCA “expressly preempts” the Berkeley ordinance, as the city’s plan did not directly regulate either energy use or efficiency.
In a dissenting opinion in the January ruling, Judge Michelle Friedland said the court should have reconsidered siding with the California Restaurant Association.
“The panel opinion needlessly blocks Berkeley’s effort to combat climate change, along with the equivalent laws passed by other local governments,” said Friedland, an Obama pick.
“Climate change is one of the most pressing problems facing society today, and we should not stifle local government attempts at solutions based on a clear misinterpretation of an inapplicable statute,” she added.
The 9th Circuit sent the case back to the U.S. District Court for the Northern District of California, a move that led to Friday’s agreement.
The agreement has yet to be approved by Judge Yvonne Gonzales Rogers, an Obama pick.
A gas precedent?
It remains to be seen how much of a ripple effect the court decisions will have, although advocates on both sides say policies are tilting in their favor.
Karen Harbert, president and CEO of the American Gas Association, said the settlement “has implications far beyond the City of Berkeley” and marked a step toward “helping our nation continue on a path to achieving our energy and environmental goals.”
“Natural gas has been one of the primary drivers for achieving environmental progress, and any ban on this foundation fuel will saddle consumers with significant costs for little environmental gain,” said Harbert in a statement Monday. AGA filed an amicus brief in the case in support of the California Restaurant Association.
The April decision appeared to strike down gas bans across the 9th Circuit, which covers nine Western states. Republican lawmakers in more than 20 states have also passed laws that would preempt local jurisdictions from enacting gas bans, a response to Berkeley’s initial ordinance.
Daniel Carpenter-Gold, a staff attorney with the Public Health Law Center at the Mitchell Hamline School of Law in St. Paul, Minnesota, said a case in New York City challenging that city’s ban on certain gas fuel appliances could be a key legal test after the Berkeley settlement.
In that case, construction trade groups led by the Association of Contracting Plumbers sued the city over its 2021 law that sets emission limits on appliances. The group said that amounted to a ban on gas and oil appliances and cited the 9th Circuit decision to argue there was a violation of EPCA.
New York state has a similar law that is also the subject of a lawsuit filed by building and gas groups.
A motion to intervene in the New York City case from two local environmental groups cites Friedland’s dissent in favor of Berkeley, saying the EPCA does not justify tossing the fuel ban.
“We don’t know how the judge will handle that,” Carpenter-Gold said. “It’s an indication that the dissent may be a limitation on how influential that 9th Circuit decision can be.”
As the legal cases continue through the courts, left-leaning cities are still likely to keep pushing on ways to phase out fossil fuels to meet climate goals, said Sunstone Strategy’s Welch.
“This case was intended to scare local governments off, but what we’ve seen across the board is that folks won’t be deterred,” said Welch. “This is one of the highest emission areas that local governments can control. Maybe they’ll have to do it differently, but they’ll still do it.”
