By Marcelle Dibrell

An attempt by one California city to ban the use of natural gas has been shot down by a federal appeals court, but the pool and spa industry remains concerned that efforts will continue to press for a gas-free future.

In April, the U.S. Ninth Circuit Court of Appeals, in the case of “California Restaurant Association v. City of Berkeley,” found that the city of Berkeley did not have the authority to ban natural gas access and infrastructure in newly constructed buildings.

However, according to the California Pool and Hot Tub Alliance, which opposes banning natural gas, this is not likely to be the end of U.S. cities enacting restrictions.

In a 2020 letter to the California Energy Commission, John Norwood, the Director of Government Relations for the CPSA, wrote: “The goal of eliminating the use of natural gas in California, providing incentives for home builders to construct new housing tracts without natural gas lines or hookups, or otherwise phasing out the use of natural gas, will undermine the swimming pool and hot tub business in California… In the swimming pool and spa industry, pool heaters, fire pits, fireplaces, decorative fire features, pizza ovens, barbeques, outdoor ranges, and outdoor space heating all operate on natural gas… Moreover, these proposed bans on natural gas would effectively shut down every high school, college, and resort swimming pool as there is currently no other alternative but gas to heating these commercial-size swimming pools that anyone could afford.”

Berkeley’s so-called “natural gas ban” was the first local ordinance in the country to effectively require all-electric construction in new buildings.

The gas-ban ordinance was passed unanimously by Berkeley’s City Council and had been in effect since January 2020. The ordinance prohibits natural gas infrastructure typically used to provide water and space heating, cooking capabilities, and other uses in all new buildings.

And since 2020, more than 70 California cities have followed Berkeley’s lead in requiring or strongly incentivizing all-electric or fossil-fuel-free new buildings, with many additional cities considering similar approaches.

Berkley’s approach banned the new piping of gas to residential and commercial buildings.Approximately 20 of those 70 other California cities followed a similar approach. For those cities, their natural gas bans may now be illegal following the recent Ninth Circuit Court’s decision.

The decision stems from a lawsuit filed by the California Restaurant Association (CRA) shortly after Berkeley passed its ordinance. Jot Condie, the president and chief executive of the CRA, said in a statement that Berkeley’s ordinance was “an overreaching measure beyond the scope of any city.”

“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 its complaint, the CRA argued that the federal government was the primary source of regulations that affect the type of energy used by covered appliances through the Energy Policy and Conservation Act (EPCA) of 1975. As such, it argued, municipalities had no authority to adopt rules that were in excess of the federal standards — referred to as “preemption”.

Specifically, under EPCA, the U.S. Department of Energy sets energy conservation standards for many common building appliances such as furnaces, HVAC systems, and hot water heaters. That means that state and local governments are mostly preempted from setting energy standards for those same pieces of equipment.

The CRA argued that Berkeley’s ordinance is preempted because “banning the building’s piping needed to supply natural gas to appliances effectively bans [gas] appliances.”

In their recent decision, the Ninth U.S. Circuit Court of Appeals in San Francisco sided with the CRA to block the city’s efforts, stating that it violates the federal law that gives the U.S. government the authority to set energy-efficiency standards for appliances.

“Instead of directly banning those appliances in new buildings,” the ruling states, “Berkeley took a more circuitous route to the same result and enacted a building code that prohibits natural gas piping into those buildings, rendering the gas appliances useless.”

According to the CPSA, while the Ninth Circuit decision does impact some aspects of local authority to electrify buildings, it is far from a knockout blow. Local governments with building code authority retain that authority. Furthermore, the decision applies only in the Ninth Circuit, which includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands. State and local governments elsewhere are not affected by the ruling.

California is far from the only state duking it out over commercial and residential natural gas usage.

Within the last few years, partisan debates concerning natural gas legislation have been heating up all over the country. In 2021, New York City joined other cities in blue states like California, Massachusetts, and Washington that want to shift buildings away from natural gas because it releases carbon dioxide and other greenhouse gases. Beginning that year, New York City mandated heat pumps and electric kitchen ranges in all newly constructed buildings.

Meanwhile, mostly red states, including Arizona, Georgia, Florida, Ohio, and Texas, have passed laws that forbid their cities from restricting gas use.

And at press time, gas stoves are at the center of U.S. culture wars with two Republican-backed bills proposed in Congress that aim to proactively stop a ban on gas stoves, which Democrats insist isn’t actually being considered.

The bills come in response to a variety of provocations including: A growing number of cities banning gas infrastructure; EPA and World Health Organization statements that link gas stove use to asthma, cancer, cardiovascular problems, and other conditions caused by leakage of methane, nitrogen dioxide, and other pollutants; an EPA report that said that 13 percent of the U.S.’s greenhouse gas emissions result from fossil fuels burned in homes and businesses for heating, lighting, cooking, and cooling; and a Department of Energy proposal for a significant expansion of efficiency regulations on gas stoves.

But what really fanned the flames of the gas stove wars was a comment made in January by a U.S. Consumer Product Safety Commissioner, who called gas stoves a “hidden hazard,” and stated that “Products that cannot be made safe can be banned.”

The two bills — the “Gas Stove Protection and Freedom Act” and the “Save Our Gas Stoves Act” — would together prohibit the Consumer Product Safety Commission from declaring gas stoves a hazardous product or take other steps to prohibit their sale and restrict energy conservation standards for the appliances. They would also block the Department of Energy from taking actions that would lead to gas stoves being taken off the market or selling at higher prices.

The fate of the proposed bills, which should have easily passed the Republican-dominated House of Representatives, made the news when 12 House conservatives surprisingly joined Democrats in voting against the legislation out of protest to Speaker of the House Kevin McCarthy’s debtceiling bill. Then, after a week-long blockade of floor action by conservatives, the House passed the legislation, where it is unlikely to get support in the Democratic-controlled Senate. Meanwhile, the BidenAdministration, while insisting it “does not support any attempt to ban the use of gas stoves,” has said that if passed, it will veto the two bills.

When it comes to eliminating gas appliances and gas infrastructure, the Pool and Hot Tub Alliance has made its position clear. While supporting balanced approaches to climate change issues and reducing carbon emissions, in the absence of a viable alternative, the association does not support eliminating natural gas options.