What 9th Circuit ruling means for building gas bans

Source: By David Iaconangelo, E&E News • Posted: Tuesday, April 18, 2023

 A burner on a stove emits blue flames from natural gas.

A burner on a stove emits blue flames from natural gas. Photo Illustration by Tim Boyle/Getty Images

A federal appeals court’s overturning of the nation’s first natural gas ban for new buildings handed a victory to the fossil fuel industry Monday and sparked disagreement over whether similar restrictions should stay in place across the country.

The decision from the 9th U.S. Circuit Court of Appeals, which struck down the landmark ordinance in Berkeley, Calif., has unclear ramifications, although some legal scholars expressed concerns that it could have a chilling effect on states and cities pursuing similar bans. The ruling also may not be the final one in the case. Lawyers representing the city of Berkeley did not rule out an appeal, saying they were assessing next steps. Several backers of Berkeley’s ban said they expect the city to challenge the decision.

“I worry that state and local governments are going to take a broader view of today’s decision than is actually warranted,” said Amy Turner, a senior fellow at Columbia Law School’s Sabin Center for Climate Change Law, who supported the Berkeley ordinance but did not represent the city.

Berkeley passed the ban, which prevented builders from installing gas infrastructure in most new projects, in 2019. The California Restaurant Association sued the city soon after, claiming that the ordinance was preempted by federal law and would discourage restaurateurs from opening new businesses.

The three judges on the 9th Circuit unanimously sided with the association, finding that the Energy Policy and Conservation Act “expressly preempts” state and local restrictions on gas appliances’ energy use (E&E News PM, April 17). By prohibiting gas piping, the city of Berkeley had indirectly banned gas appliances, despite federal laws against it, the judges wrote.

“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,” wrote Judge Patrick Bumatay.

Last year, the Energy and Justice departments, eight state attorneys general and the 2,500-member National League of Cities submitted legal briefs in support of Berkeley’s policy. On the other side of the debate were national trade groups representing the natural gas industry, homebuilders and heating equipment manufacturers (Energywire, Feb. 10, 2022).

Several of those same trade groups applauded the circuit court’s ruling Monday.

Karen Harbert, president and CEO of the American Gas Association, called the decision “a huge step … that will both safeguard energy choice for California consumers and help our nation continue on a path to achieving our energy and environmental goals.”

Stephen Yurek, president and CEO of the Air-Conditioning, Heating and Refrigeration Institute, said his group has “long believed” that such state and local prohibitions are illegal.

“While AHRI members are resolute in their commitment to energy efficiency and environmental stewardship, they also have great respect [for] their customers’ needs and their economic situations and thus advocate for an incremental approach to reducing carbon emissions — one that ensures continued access to reliable and affordable heating, cooling, water heating, and commercial refrigeration equipment,” Yurek added in his statement.

Electrification advocates — including major environmental organizations, clean-energy think tanks and legal scholars — urged city officials outside of Berkeley not to back off of gas ban policies.

In a joint press release, representatives from Earthjustice, RMI and the Sierra Club said it is “vital that local and state governments maintain authority to protect the health and safety of their residents.”

Gas bans passed in most U.S. cities — even in many cities located within the jurisdiction of the 9th Circuit itself, which handles appeals from nine Western states — would not see any effect from the decision, those groups argued.

About 25 cities in California followed Berkeley’s legal script when writing their own gas bans, compared with over 100 cities that have enacted some form of a restriction on buildings’ use of fossil fuels, according to the groups’ count.

“While most cities who have taken action to cut pollution from buildings will not be impacted by today’s decision, we trust that this ruling will be challenged in court and that this vital authority to address fossil fuel pollution will remain intact in the long-term. Until that time, we encourage local leaders to continue their work to cut climate emissions while this decision is appealed,” said Denise Grab, a principal at RMI, in the release.

An ‘overly broad’ ruling?

Turner pointed out that Berkeley’s ban was included as part of the city’s municipal code — which concerns questions like the city’s authority to regulate health and safety — rather than through building codes or air emissions standards.

That difference could make other cities’ gas bans more resilient to legal challenge, she said. San Francisco, for example, enacted its gas restrictions by amending its building code.

The 9th Circuit’s ruling “does not invalidate electrification requirements” that appear via building codes, even within the circuit’s jurisdiction, she said.

At the same time, for cities located in areas covered by the 9th Circuit, the ruling “opens up a whole bunch of other local laws … for [federal] preemption scrutiny,” said Turner, adding that the court has taken an “overly broad” interpretation of federal authority.

The 9th Circuit considers appeals from district courts in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

Gloria Smith, a managing attorney with the Sierra Club, suggested that new federal policies could alleviate legal scrutiny of city-level gas restrictions.

Last year, over two dozen environmental and public health groups petitioned EPA to phase out fossil fuel heating appliances, she pointed out.

The question of whether city gas bans conflict with federal law “does not need to be an issue for the courts,” she said.

What is fully clear is that Berkeley’s ordinance has been a major catalyst for new policy across the United States since its passage.

It provided inspiration for dozens of city-level bans across the West and East coasts, from New York City to Seattle.

State officials and legislators are also studying similar measures. In New York, the governor and the Democratic-controlled Legislature may soon pass the first law banning gas in most new buildings. In Washington state, buildings officials have approved statewide codes that require electric heat pumps to serve as the main source of heat in many new developments.

The Berkeley ordinance also triggered huge blowback from conservatives. Not long after it was enacted, 20 Republican-led states passed laws that prohibited localities from restricting natural gas or associated infrastructure in buildings.

After Monday’s ruling, the California Restaurant Association and its legal representatives characterized it as a sweeping victory for restaurateurs and other groups opposed to city-level restrictions on natural gas.

Sarah Jorgenson, a managing partner at Reichman Jorgensen Lehman & Feldberg LLP who represented the association in the case, said in an email the decision “sets an important precedent for future cases, especially with other cities and states considering restrictions on natural gas, and it prevents a patchwork of disparate regulations and protects consumer choice.”

The association’s president and CEO, Jot Condie, added that the 9th Circuit has “unanimously affirmed the central issue in this case: local ordinances cannot override federal law.”

The ruling comes as the Biden administration is beginning to take a more skeptical view toward fossil fuel heating equipment, and its associated emissions, than the federal government has in the past.

The Energy Department, for instance, has proposed new emissions regulations on gas stoves that would disqualify about half of the models sold in the United States today, according to its own estimates (Energywire, Feb. 24).

In early March, the Consumer Product Safety Commission voted in favor of collecting public input on hazards associated with gas stoves, in support of possible new regulations (Energywire, March 2).