The City of Berkeley, California, has suffered a major setback in its attempts to impose a moratorium on new natural gas hookups in buildings, as ruled by a federal appeals court. Berkeley’s request for a review en banc was denied by the U.S. Court of Appeals for the Ninth Circuit, thereby affirming an earlier decision that the city’s legislation prohibiting natural gas pipes in newly constructed buildings violated federal statute.
The Air-Conditioning, Heating, and Refrigeration Institute (AHRI), which claimed Berkeley’s ordinance was unconstitutional, welcomed the court’s decision to protect consumers’ freedom of choice when it came to energy sources. Stephen Yurek, President and CEO of AHRI, expressed his delight with the court’s ruling and emphasized the significance of collaborating with states and communities to meet pollution reduction and energy conservation targets without sacrificing consumer comfort, productivity, safety, or health.
The prohibition was approved by Berkeley’s city council in July 2019 with the intention of reducing greenhouse gas emissions and taking strong action against climate change. With the prohibition scheduled to go into effect in January 2020, Berkeley became the first city in the US to enact a law of that kind. The California Restaurant Association (CRA), however, filed a federal lawsuit contesting the city’s legislative jurisdiction. Following the CRA’s appeal of a lower court decision that favored Berkeley, the Ninth Circuit issued its decision in April.
The federal Energy Policy and Conservation Act (EPCA) of 1975 forbids local rules that affect the energy use of natural gas appliances, and the Ninth Circuit found that Berkeley’s statute violated this law. In his dissenting opinion, Judge Patrick Bumatay said that Berkeley’s policy effectively eliminated the use of gas appliances by forbidding the use of natural gas pipelines, circumventing preemption.
Berkeley’s gas hookup prohibition was supported by an amicus brief filed by the Department of Justice (DOJ) in June. The appeals court’s ruling, however, has now established the position that the ordinance’s impact on covered products is superseded by the EPCA.
Environmental organizations, other states that backed Berkeley’s law, and business associations that backed the CRA—such as the American Gas Association and AHRI—have all taken an interest in this issue. The decision marks a turning point in the ongoing discussion about municipal vs federal jurisdiction over energy and environmental regulations.