States and cities can’t ban natural gas piping into new buildings, a federal appeals panel has ruled.
The judges said a federal law that bars governments from directly banning natural gas appliances also blocks those governments from skirting the law by denying those appliances the fuel they need to heat homes and cook food.
On April 17, the U.S. Ninth Circuit Court of Appeals said an ordinance enacted by the city of Berkeley revising the city’s building code to forbid new natural gas piping into homes and businesses is illegal because it conflicts with the federal law known as the Energy Policy and Conservation Act.
The decision was authored by Ninth Circuit Judge Patrick J. Bumatay, with concurrence from Ninth Circuit Judge Diarmuid F. O’Scannlain and Judge M. Miller Baker, of the U.S. Court of International Trade, who was sitting on the panel by special designation.
The appellate ruling overturned the decision of U.S. District Judge Yvonne Gonzalez Rogers, of the Northern District of California.
In her ruling, Rogers had determined the city’s new building code prohibiting the new gas lines were acceptable under the EPCA law, because the law’s prohibitions extended only to attempts to ban the appliances themselves.
The appellate judges, however, said Rogers’ reading of the federal law was much too narrow, leading to a result in which property owners would still be allowed to own natural gas appliances, but couldn’t use them.
The limits on the law read by Judge Rogers “do not appear in EPCA’s text,” the appellate judges wrote. “By its plain text and structure, EPCA’s preemption provision encompasses building codes that regulate natural gas use by covered products.
“And by preventing such appliances from using natural gas, the new Berkeley building code does exactly that.”
The appellate ruling sided with the California Restaurant Association. The CRA had filed suit in 2019, shortly after Berkeley passed the new ordinance.
In revising its building code to prohibit the installation of new natural gas lines, the city said it sought to “eliminate obsolete natural gas infrastructure and associated greenhouse has emissions in new buildings where all-electric infrastructure can be most practicably integrated.” The city said it believed the step was needed to combat climate change and reduce alleged “health hazards” from the transportation and use of natural gas.
In response, the CRA said the ordinance should be unenforceable, because it is preempted by the EPCA and state law.
In recent weeks, federal and state officials elsewhere in the country have also sought to find ways to enact regulations to reduce or outright ban the use of natural gas-powered appliances in homes and businesses in the U.S.
According to the federal Energy Information Administration, half of all U.S. homes rely on natural gas for heat and water heating.
The Ninth Circuit’s decision in the Berkeley case did not address those new efforts directly.
However, the decision opens a path to challenge any new state or local governmental regulations banning the use of natural gas appliances, either directly or indirectly, as attempted by Berkeley.
The decision focused on the EPCA’s so-called preemption clause, which forbids any state or local regulation that restricts the “energy use” of appliances or products for which a “federal energy conservation standard” has been enacted by the federal government.
“Right off the bat, we know that EPCA is concerned with the end-user’s ability to use installed covered products at their intended final destinations,” Judge Bumatay wrote. “After all, a regulation that prohibits consumers from using appliances necessarily impacts the ‘quantity of energy directly consumed by [the appliances] at point of use.’
“So, by its plain language, EPCA preempts Berkeley’s regulation here because it prohibits the installation of necessary natural gas infrastructure on premises where covered natural gas appliances are used.”
Berkeley attempted to argue its ordinance merely redefined the level of energy use to zero, so it fits within the law.
Bumatay, however, lit up that argument, saying the appellate panel doubted “Congress meant to hide an exemption to the plain text of EPCA’s preemption clause in a mathematical equation.”
The federal government, under President Joe Biden – whose administration has begun the effort to ban natural gas appliances, while simultaneously gaslighting critics who object – sided in court with Berkeley, saying the judge was correct to determine the reach of the EPCA is limited to energy conservation standards for products, and can’t be extended to building codes.’
But Bumatay said the Biden administration's reading of the law is “wrong," too.
“… We presume that Congress means what it says, and we can’t simply reconfigure the statute to fit the Government’s needs,” Bumatay wrote.
“... States and localities can’t skirt the text of broad preemption provisions by doing indirectly what Congress says they can’t do directly. EPCA would no doubt preempt an ordinance that directly prohibits the use of covered natural gas appliances in new buildings.
“So Berkeley can’t evade preemption by merely moving up one step in the energy chain and banning natural gas piping within those buildings. Otherwise, the ability to use covered products is ‘meaningless’ if consumers can’t access the natural gas available to them within the City of Berkeley,” Bumatay wrote.
The CRA has been represented by attorneys Brian C. Baran, Sarah Jorgensen, Courtland L. Reichman, Laura Carwile and Ariel C. Green Anaba, of the firm of Reichman Jorgensen Lehman & Feldberg, of Redwood Shores, California, and Atlanta, Georgia; Kylie Chiseul Kim, of Kellogg Hansen Todd Figel & Frederick, of Washington, D.C.; and Gary J. Toman, of Weinberg Wheeler Hudgins Gunn & Dial, of Atlanta.
Berkeley has been represented by attorneys Anthony L. Francois and Peter S. Prows, of Briscoe Ivester & Baze, of San Francisco; and Farima Faiz Brown and Brendan Darrow, deputy city attorneys, of Berkeley’s Office of the City Attorney.