Update, June 12 The Biden administration submitted an amicus brief on Monday in support of the city of Berkeley’s petition for a rehearing as it seeks to preserve its ban on gas hookups in new buildings.
The administration argued that a three-judge panel, which ruled that the city didn’t have authority for the ban, had made “significant errors” in its interpretation of federal law.
In the brief, officials from the U.S. Department of Energy and Department of Justice said the 9th Circuit should grant a rehearing to “correct a panel opinion that destabilizes the long-settled understanding shared by the Department, the States, municipalities, and the courts over the allocation of regulatory authority in this area; threatens to preempt broad swaths of State and local health and safety law; and throws a wrench into the federal government’s administration of the [Energy Policy and Conservation] Act.”
Original story, June 9 Berkeley is seeking to rescue its first-in-the-nation ban on gas hookups in new buildings. A three-judge panel struck the ban down earlier this year in a ruling in favor of California’s restaurant lobby.
City attorney Farimah Faiz Brown filed a petition last week requesting an “en banc” rehearing with 11 judges on the U.S. Court of Appeals for the Ninth Circuit.
Berkeley passed the ban in July 2019 as part of its efforts to reduce the carbon emissions driving climate change. The ordinance, which went into effect in 2020, still stands as the legal process continues.
In her petition requesting a new hearing, Brown argued that the federal appeals court’s ruling would not only prevent Berkeley and other cities that have adopted similar legislation from addressing the health hazards increasingly linked to indoor combustion of gas, but that it also “endangers subnational governments’ powers over an array of matters — from building safety, to zoning, fire prevention, and water distribution — that the Constitution, Congress, and history recognize as quintessentially local responsibilities.”
“That ruling is seriously wrong and highly consequential,” Brown wrote in the petition, arguing that the panel made a “grievous misinterpretation” of federal law that would nullify a wide range of state and local government health and safety protections.
In November 2019, the California Restaurant Association filed a lawsuit against the city of Berkeley to block the legislation, arguing that the ban is “irresponsible” amid electrical outages and “does little to advance climate goals.” Cooking over a gas stovetop, some chefs have said, gives more control over the amount and intensity of heat and can help impart a smoky char, for example when cooking with a wok. SoCalGas, the biggest natural gas utility in the country, has paid the law firm that’s been challenging Berkeley’s ban on behalf of the restaurant lobby over $1 million to do legal research on similar issues.
In July 2021, a federal district court judge dismissed the restaurant lobby’s lawsuit. But the CRA challenged that decision, and in April a three-judge panel on the U.S. Court of Appeals for the Ninth Circuit (consisting of two Trump appointees and one Reagan appointee) unanimously ruled in favor of reversing that dismissal.
Brown filed a petition on May 31 requesting that a wider panel of judges on the appeals court reconsider the three-judge panel’s April ruling. While “en banc” consideration is rare, if granted, it would mean the case would go before 11 judges — Chief Judge Mary Murguia (an Obama appointee) and 10 other judges selected from a pool of up to 28, 14 of whom were appointed by Democratic presidents.
More than 70 local and state jurisdictions have followed Berkeley’s lead in requiring or strongly incentivizing all-electric or fossil-fuel-free new buildings, and it has become a hot-button national political issue, with the Republican-controlled U.S. House considering legislation to prevent state and local governments from instituting gas bans.
The legal fight over Berkeley’s gas ban may not affect some cities and counties that banned gas in new construction through building codes under federal law, but its impact could still reverberate widely. Washington state building code officials voted last month to delay an electric heat pump mandate for new buildings, citing as precedent the appeals court’s ruling on Berkeley’s gas ban.
When first creating the legislation, Berkeley sought to circumvent the Energy Policy and Conservation Act, or EPCA, by passing a municipal building code ordinance prohibiting permits for new gas piping, as opposed to enacting a ban on the appliances themselves. But the three-judge panel ruled that the scope of the EPCA goes beyond the regulation of natural gas devices — it also encompasses the building codes which regulate gas use.
“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 J. Bumatay. The Energy Policy and Conservation Act, or EPCA, preempts state and local regulations concerning the energy use of natural gas appliances, he wrote.
Councilmember Kate Harrison, who first put forward Berkeley’s gas ban, said this interpretation is overbroad and would tie cities and states’ hands on a wide range of regulatory concerns.
“They’re pointing to an old statute that deals with appliance efficiency,” she said. The EPCA was written in response to the 1973 oil crisis. “We’re not dealing with efficiency. We’re dealing with health and safety. So just because they both affect appliances does not mean that the preemption is absolute. The idea that because the federal government weighs in one aspect of a particular area, that local government has no role is not correct, in my view. ”
Harrison said the April ruling is a “direct assault on local governments’ right to protect health and safety in our communities,” adding that she supports the city’s decision to pursue a rehearing. “If we are not successful, what we did was start a movement, and people are going all-electric with or without our laws,” Harrison said, noting that Berkeley chef Alice Waters has announced that Chez Panisse plans to stop using gas stoves.
