Federal Court Strikes Down Berkeley’s Gas Ban

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The U.S. Ninth Circuit Court of Appeals on Monday overturned a Berkeley, California, ordinance that was the first in the nation to ban natural gas hookups in new construction.

The court unanimously ruled in favor of the California Restaurant Association (CRA), agreeing with the trade group’s argument that the federal government’s Energy Policy and Conservation Act (EPCA) preempted the city’s regulations. The Ninth Circuit’s decision reversed a lower court’s 2021 interpretation of the EPCA, arguing that the EPCA’s “plain text” covers building codes that regulate natural gas use, which a ban on new gas appliances falls under, Bloomberg Law reported(RELATED: Forget Stoves! There’s A Growing Movement To Ban New Homes From Having Any Gas At All)

The Department of Justice filed an amicus brief on Berkeley’s behalf, arguing that the terms “energy use,” “energy efficiency” and “energy conservation standards” were interchangeable within the EPCA, and that Berkeley’s ordinance fell outside the federal government’s purview because it did not set any energy conservation standards, according to the Ninth Circuit. However, the court found that the EPCA regularly used the several phrases together as “related, but distinct concepts,” and that a ban on natural gas hookups clearly impacted “energy use.”

“[W]e presume that Congress means what it says, and we can’t simply reconfigure the statute to fit the Government’s needs,” wrote Judge Patrick Bumatay, joined in concurrence by Judge Diarmuid O’Scannlain and Judge M. Miller Baker. “Indeed, after Congress has taken pains to define each phrase separately, it would be inappropriate for courts to disregard these nuances and treat the phrases as interchangeable.”

Berkeley’s ban on new natural gas inspired several imitator cities, including New York City, but the issue of natural gas bans heated up nationwide after Commissioner Rich Trumka Jr. of the U.S. Consumer Product Safety Commission (CSPC) raised the possibility of a nationwide ban on gas stoves over their purportedly negative health impacts. In March, the CSPC called for public comments on the health effects of gas stoves, which could form the basis of future regulation, including a ban.

President Jet Condie of the CRA supported the decision, critiquing Berkeley’s ordinance for being “beyond the scope of any city,” according to Fortune.

“Cities and states are not equipped to regulate the energy use or energy efficiency of appliances that businesses and homeowners have chosen; energy policy and conservation is an issue with national scope and national security implications,” Condie told Fortune. The city is expected to appeal the decision, the outlet said.

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