Federal judge dismisses restaurant lobby lawsuit against Berkeley’s natural gas ban

Tuesday’s ruling denies the California Restaurant Association’s claim that Berkeley’s first-in-the-nation ban was against federal law.

A lawsuit attempting to strike down Berkeley’s landmark legislation restricting natural gas infrastructure in new construction was dismissed Tuesday. Credit: Creative Commons

A challenge to the city of Berkeley’s landmark legislation banning natural gas in the city’s newest buildings was dismissed Tuesday after a federal judge ruled that the regulation didn’t violate federal statutes that prohibit laws against specific types of appliances. The battle might continue, however, as California’s powerful restaurant lobby says that it plans to appeal the decision.

Berkeley was the first city in the U.S. to approve such a law, when its City Council unanimously agreed in July 2019 to prohibit natural gas infrastructure (such as gas hookups) in any new buildings that applied for permits after Jan. 1, 2020. The law allows for specific exceptions for cases when all-electric construction isn’t feasible, and does not apply to any existing buildings or to renovations of or additions to current structures. (You can read the full set of regulations here.)

The law, which was proposed by Councilmember Kate Harrison and cosponsored by Cheryl Davila, Ben Bartlett and Sophie Hahn, was bolstered by organizations as unexpected as Pacific Gas & Electric, which boasts 4.5 million natural gas customer accounts. “PG&E supports local government policies that promote all-electric new construction,” a spokesperson said at the meeting during which the law was approved, joining a chorus of supporters who touted the environmental benefits of the move away from gas, including a reduction of the city’s carbon impact and its goal to achieve net zero emissions by 2050.

Since Berkeley approved the legislation, which took effect on the first day of 2020, at least 46 California cities and counties have enacted gas bans and regulations, the Sierra Club reports. The Berkeley ban’s impact has spread even beyond the state, with new laws restricting gas seen in cities in Massachusetts, Colorado and Washington.

But with those bans comes opposition. Inside Climate News reports that as of March 2021, conservative legislators in states like Arizona, Louisiana, Oklahoma and Tennessee have enacted laws disallowing any locally enacted bans, with many speaking in support of continued use of fossil fuels. And in California, groups like the State Building & Construction Trades Council characterized natural gas bans as part of “a concerted extremist political agenda” in a letter to state officials.

That opposition reached a local head in November 2019, when the California Restaurant Association (CRA), the state restaurant industry’s powerful lobbying group, filed a federal lawsuit to block the Berkeley law, describing it as “irresponsible” and claiming that it would do “little to advance climate goals.” 

In its lawsuit, the CRA argued that “many restaurants will be faced with the inability to make many of their products which require the use of specialized gas appliances to prepare, including for example flame-seared meats, charred vegetables, or the use of intense heat from a flame under a wok.” Specifically of concern are “restaurants specializing in ethnic foods so prized in the Bay Area,” which the CRA said “will be unable to prepare many of their specialties without natural gas.”

It’s worth nothing here again that the ban only applies to new construction, so it’s not like city officials will raid your local favorite restaurant’s kitchen and confiscate its gas range. But, still, the CRA isn’t wrong in saying that many restaurants need the power of a gas cooktop to achieve specific flavors and dishes. Especially reliant on gas is the wok hei effect Cantonese cooking is known for — that charred and caramelized stir-fry scent and taste — which can only be achieved over the direct flame found in commercial-level gas appliances.

According to the CRA, Berkeley’s ban is also a violation of state and federal laws, including the federal Energy Policy and Conservation Act (EPCA) and the state energy and building standards codes. It’s a claim that U.S. District Judge Yvonne Gonzalez Rogers interrogated closely during a February 2021 hearing on the suit, Courtroom News reported at the time

After CRA attorney Courtland Reichman said that Berkeley’s “intent is to ban gas appliances” even though “EPCA does not allow them to do through the back door what they can’t do through the front door,” Rogers appeared to agree, asking Deputy City Attorney Chris Jensen, “What is the purpose of the legislation other than to ban all gas appliances?” 

“The purpose is to transition the city infrastructure away from natural gas,” Jensen said, a distinction that Rogers responded to with skepticism. “The effect is to eliminate all natural gas appliances,” Rogers said. “You can’t run a natural gas appliance if you don’t have natural gas lines.”

Despite Rogers’ close questioning in February, on July 6, 2021, she ruled to dismiss the CRA’s suit, writing in her decision that “The Court concludes therefore that CRA fails to and cannot state a claim for relief for federal preemption by the EPCA.” Key to Berkeley’s success is the legislation’s use of the word “infrastructure” as opposed to attempting to “directly regulate either the energy use or energy efficiency of covered appliances,” Rogers wrote. (You can read the full decision here.) 

As a result of Rodgers’ ruling, the case was terminated Tuesday. The fight appears not to be over yet, though. A CRA spokesperson told Berkeleyside after this report’s publication that the organization will appeal the ruling, and sent a statement from CRA President and CEO Jot Condie. “Our fight to make sure restaurants have continued access to natural gas cooking will continue,” Condie said. “The judge’s decision confirms what we knew: we have standing in this case because of the obvious negative impact to restaurants that will result from the loss of cooking with natural gas stoves. The court’s decision helpfully narrows the issues, bringing into clear focus whether local governments can nullify state and federal law on energy policy.”

Speaking with Berkeleyside, assistant city attorney Chris Jensen seemed unsurprised at the CRA’s plan to appeal. “We were pleased with the result and it was the correct one,” Jensen said. “We will continue to defend the ordinance based on strong legal arguments,” he said.

The bottom line, however, is that the decision means that the “ordinance remains in force,” Jensen says. And that’s enough for Harrison, the city council member who first proposed the influential law. “I am delighted,” she told Berkeleyside, “that the federal court recognized local government’s right — not to mention our obligation — to protect the health and welfare of our residents.”

This report was updated after publication with additional information from the CRA and Berkeley’s city attorney’s office.

Eve Batey is Berkeleyside's interim Nosh editor. Email: eve@berkeleyside.org.