By Marcelle Dibrell

A U.S. appeals court will not re-hear a case concerning a natural gas ban that was proposed by a California city, an ordinance that the court ruled was illegal last year.

The Ninth Circuit Court of Appeals, that has jurisdiction over the western U.S., will not reconsider its decision to allow the City of Berkeley’s proposed gas ban, according to a denial on January 2. The Court’s decision will remain binding for Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

The Appeals Court originally overturned Berkeley’s gas ban on new construction in April, 2023, agreeing with the California Restaurant Association that the city bypassed federal energy regulations that preempt the city’s ordinance.

In 2019, Berkeley had become the first city in the country to pass an outright ban on natural gas piping in new construction, an ordinance that went into effect in 2020 and was intended to reduce greenhouse gases that contribute to climate change. The ordinance was challenged by the California Restaurant Association, who argued that it violated a 1975 federal law that authorizes federal officials

The Ninth Circuit Court of Appeals, will not re-hear a case concerning a natural gas ban proposed by Berkeley, California. The Appeals Court originally overturned Berkeley’s gas ban on new construction in April, 2023. See accompanying story. to set energy efficiency standards for appliances such as furnaces and water heaters.

In April, 2023, a three-judge panel of the Ninth Circuit Court agreed with the restaurant association, stating that the Federal Energy Policy and Conservation Act (EPCA) preempts Berkeley’s ordinance. Under the Berkeley law, consumers would be prevented from using the appliances that federal officials had already authorized.

“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. The Energy Policy and Conservation Act expressly preempts state and local regulations concerning the energy use of many natural gas appliances, including those used in household and restaurant kitchens,” the judges wrote.

According to the EPCA preemption clause, once a federal energy conservation standard becomes effective for a covered product, “no state regulation concerning the energy efficiency, energy use, or water use of such covered product shall be effective with respect to such product.”

The appeals court said that instead of directly banning those appliances in new buildings, Berkeley took a more circuitous route to the same result. It enacted a building code that prohibits natural gas piping in those buildings from the point of delivery at a gas meter, rendering the gas appliances useless.

The Appeals Court’s January 2 decision to refuse to reconsider the case was not unanimous. Eight (of 29) judges disagreed with the decision. Judge Michelle Friedland wrote the dissent, in which she argued (in essence) that the purpose of the EPCA and its preemption provision was to create uniform energy efficiency standards for manufacturers, who had been historically frustrated with standards that varied from state to state.

The preemption provision guarantees uniform appliance efficiency standards, she wrote, but does not create a consumer right to use any covered appliance.

She wrote that misinterpreting the EPCA has important environmental consequences: “The panel opinion needlessly blocks Berkeley’s effort to combat climate change, along with the equivalent laws passed by other local governments,” Friedland wrote. “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.”

The January 2 ruling will become final unless the Supreme Court decides to review the case.

The case has drawn the attention of industry groups that supported the restaurant association, including the American Gas Association and Air Conditioning, Heating, and Refrigeration Institute (AHRI).

“Naturally, AHRI — and particularly our member companies that manufacture products and equipment that use natural gas — are very pleased that the full court denied Berkeley’s appeal, thereby allowing the residents of Berkeley, and likely elsewhere, to continue to have choices with respect to energy sources for home and water heating,” said AHRI President and CEO Stephen Yurek.

Sarah Jorgensen, a lawyer representing the California Restaurant Association, wrote in a statement that the ruling “sets an important precedent for future cases, especially with other cities considering similar bans or restrictions on the use of natural gas.”

Other jurisdictions across the country that supported Berkeley’s ordinance, such as the National League of Cities, Washington, D.C., and the states of California, Maryland, New York, and Oregon, were not pleased with the recent decision, which could influence their policies.

On May 2, 2023, New York became the first state in the country to pass a law that prohibits the use of fossil fuel equipment in new construction, and this mandate is set to go into effect in 2026 for new buildings of seven stories or less and in 2029 for larger buildings.

On October 12, the National Association of Home Builders and the National Propane Gas Association (NPGA), among others, also filed a lawsuit against the New York Department of State claiming that the state’s gas ban is unenforceable. Represented by Reichman Jorgensen Lehman & Feldberg LLP (the law firm that argued the Berkeley case), plaintiffs make the identical argument that prohibiting the use of gas in new construction violates a federal law that gives the U.S. government authority to set energy-efficiency standards for appliances. Further, they argue that banning gas will put a greater strain on the state’s electric grid, financially burden consumers, and put companies out of business.

But Steve Kaminski, president and CEO of the NPGA, seems confident that New York state will be forced to overturn its gas ban, given the results in the California case.

“The law is in our favor,” Kaminski said.

The Pool and Hot Tub Alliance and the California Pool and Spa Association are tracking state and local efforts on this subject to prevent gas ban policies from making their way into other states. Further, PHTA and CPSA joined their decarbonization coalitions last year to “combat overreaching efforts by local and state governments to ban the use of natural gas in homes across the United States.” The combined coalition is composed of business leaders within the pool and hot tub industry.

In addition, PHTA and CPSA are working with national and California associations to ensure that natural gas remains an option for Americans to utilize within their homes.