Berkeley’s landmark gas ban overturned, ripple effects may be limited

A federal appeals court has tossed out Berkeley, California’s pioneering legislation to ban fossil gas hookups in new buildings. But the ruling, which came Monday, isn’t expected to affect most other policies adopted by U.S. cities and states to limit gas consumption in new homes, offices and commercial buildings, experts say.

That’s mainly because the ruling applies to the specific way Berkeley structured its gas-hookup ban — by using its authority to regulate residents’ health and safety. More than 100 municipalities across the country have passed policies to curb planet-warming emissions from buildings, though only about 25 cities in California have followed Berkeley’s approach, according to the Building Decarbonization Coalition.

“Local governments are still allowed to require or strongly incentivize all-electric construction in their building codes, so long as they do it in a particular way,” Amy Turner, a senior fellow at Columbia University’s Sabin Center for Climate Change Law, told Canary Media.

Monday’s ruling by a panel of three judges on the Ninth U.S. Circuit Court of Appeals may nonetheless embolden opponents of local gas bans and sow uncertainty among proponents.

The decision arrives at a time when gas appliances have become a political lightning rod and sparked fierce debate about the role governments should play in pushing households and businesses toward less-polluting equipment. At least 20 states with Republican-controlled legislatures have adopted ​“preemption laws” that prohibit cities from banning fossil gas.

In 2019, Berkeley became the first city in the United States to adopt a gas ban. The city council, which represents some 124,000 residents, approved a municipal code amendment that prohibits gas interconnections in newly constructed buildings, with some exceptions. The ordinance is codified in the Berkeley Municipal Code under Title 12, which sets rules for health and safety.

According to the council, the ordinance is ​“reasonably necessary because of health and safety concerns, as Berkeley residents suffer from asthma and other health conditions associated with poor indoor and outdoor air quality exacerbated by the combustion of natural gas.” Gas use also threatens residents’ safety by generating greenhouse gas emissions, which in turn raises the risk of rising sea levels, wildfires and firestorms, council members said.

Dozens of U.S. cities and counties have since adopted their own policies, including San Francisco, Washington, D.C., and New York City. Most recently, air pollution regulators in the San Francisco Bay Area agreed to phase out gas-fueled furnaces and water heaters starting in 2027. Washington state’s building codes now require all new-home construction to install heat pumps for space and water heating as of this July.

In contrast with Berkeley’s approach, most of these so-called gas bans are written into local building codes or air emissions standards.

​“My hope is that states and local governments realize that this is a fairly limited ruling, and that they still have ample authority to regulate natural gas use and to regulate all-electric construction,” Turner said.

She noted that the ruling also only applies to the states within the Ninth Circuit’s jurisdiction: California, Alaska, Arizona, Hawaii, Idaho, Nebraska, Nevada, Oregon and Washington, plus Guam and the Mariana Islands.

In their decision, the judges found that the federal Energy Policy and Conservation Act preempts, or displaces, Berkeley’s municipal code amendment. The federal law was enacted in 1975 to boost domestic energy production and improve energy efficiency. In a 2019 lawsuit, the California Restaurant Association (CRA) argued that the Berkeley ordinance clashes with the act because it undermines the federal government’s ability to set energy conservation standards for consumer appliances and equipment.

“Cities and states cannot ignore federal law in an effort to constrain consumer choice,” Jot Condie, the CRA’s president and CEO, said on Monday, adding that gas appliances are ​“crucial for restaurants to operate effectively and efficiently.”

Rob Rains, a senior vice president at Washington Analysis, an independent research firm, noted that the ruling ​“may have ripple effects across the nation” despite its limited applicability.

Similar suits challenging restrictions in other Ninth Circuit localities, including Washington state and Eugene, Oregon, seem a ​“near certainty,” Rains wrote in a Monday analysis. The ruling may also provide ​“a playbook” for attacking policies outside the court’s jurisdiction, including potentially on the East Coast. In New York, Gov. Kathy Hochul and the state Senate and Assembly have all proposed ending fossil fuel use in new construction — though efforts to pass such a policy are stuck in long-delayed budget negotiations.

If Berkeley officials appeal the Ninth Circuit’s ruling, the case could eventually make its way to the conservative Supreme Court, though many procedural steps would need to happen first. ​“If they do go that route, it would lead to at least a year of uncertainty,” Rains wrote.

Matt Vespa, a senior attorney at the environmental group Earthjustice, called the court’s decision ​“misguided” but said there are still ​“ample pathways to upgrade new buildings to clean energy technologies.”

“As we face a climate and air quality crisis from coast to coast, it is vital that cities and states maintain all legal pathways to protect public health, cut climate emissions, and increase safety by addressing pollution from buildings,” he said in a statement.