9th U.S. Circuit Court of Appeals throws out Berkeley, California’s ban on natural gas

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BERKELEY, Calif. (AP) — A federal appeals court on Monday overturned Berkeley, California’s first-in-the-nation ban on natural gas in new construction, agreeing with restaurant owners who argued the city bypassed federal energy regulations when it approved the ordinance.

The measure, which took effect in 2020 to cheers from environmentalists, was intended to reduce emissions of greenhouse gasses that contribute to global warming. With some exceptions, it banned new residential and commercial buildings from installing natural gas piping in favor of electrical lines.

A lawsuit by the California Restaurant Association claimed the regulation violated federal law that gives the U.S. government authority to set energy-efficiency standards for appliances such as stoves, furnaces and water heaters.

The Ninth U.S. Circuit Court of Appeals in San Francisco rejected a lower court judge’s decision two years ago that had upheld the Berkeley ordinance. In her 2021 decision, U.S. District Judge Yvonne Gonzalez Rogers said the city was not trying to regulate energy efficiency for appliances, only the fuel they used.

But Judge Patrick Bumatay wrote in the 3-0 Ninth Circuit ruling that a local ordinance that bans appliances such as gas stoves “impacts the quantity of energy” they consume, which is regulated by the federal government.

Jot Condie, president of the restaurant association, hailed the decision. Berkeley’s ban was “an overreaching measure beyond the scope of any city,” he said in a statement.

“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,” Condie said.

Supporters of the ordinance said the decision would not affect a small number of other California cities that have promoted electrification in their building codes.

The ruling was expected to be appealed, according to a statement from a group of environmental advocates.

Matt Vespa, a senior attorney with the nonprofit Earthjustice, called the decision 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, cut climate emissions, and increase safety by addressing pollution from buildings, and we’ll continue to fight to ensure this authority is preserved,” Vespa said in a statement.

Research has found that gas stoves in California are leaking cancer-causing benzene, while another study determined that U.S. gas stoves are contributing to global warming by putting 2.6 million tons of methane in the air each year even when turned off.

New York City has barred most new buildings from using natural gas within a few years. Most construction projects submitted for approval after 2027 would have to use something other than gas or oil — such as electricity — for heating, hot water and cooking.

Some federal lawmakers have called on the U.S. Consumer Product Safety Commission to address the potential health risks through regulation, such as requiring that gas stoves be sold with range hoods to improve ventilation or issuing mandatory performance standards for gas stoves to address the health effects of hazardous emissions.

But the Biden administration said earlier this year that there are no plans for a nationwide ban on gas stoves.

The California Restaurant Association argued the Berkeley ban could end up eroding the region’s reputation for fine and creative dining.

“Indeed, restaurants specializing in international foods so prized in the Bay Area will be unable to prepare many of their specialties without natural gas,” the lawsuit stated.

And while the ban applied only to some new construction, the association worried it could be the start of efforts to outlaw or restrict the use of natural gas in existing structures.

The trade group said such a move would harm restaurants that rely on gas “for cooking particular types of food, whether it be flame-seared meats, charred vegetables, or the use of intense heat from a flame under a wok,” according to the lawsuit.

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