9th Circuit busts Berkeley’s natural gas ban

By Ellie Borst | 04/17/2023 04:22 PM EDT

Federal energy conservation law preempts the nation’s first ban on natural gas piping, the three-judge panel ruled.

A flame burns on a natural gas stove.

A flame burns on a natural gas stove. Thomas Kienzle/AP Photo

The first city law banning natural gas hookups to new buildings is illegal under federal energy conservation law, a federal appeals court ruled Monday.

The Berkeley, Calif., ordinance is not in line with the Energy Policy and Conservation Act, which “expressly preempts State and local regulations concerning the energy use of many natural gas appliances, including those used in household and restaurant kitchens,” U.S. Circuit Judge Patrick Bumatay wrote for the unanimous three-judge 9th U.S. Circuit Court of Appeals.

“Instead of directly banning those appliances in new buildings, Berkeley took a more circuitous route to the same result and enacted a building code that prohibits natural gas piping into those buildings, rendering the gas appliances useless,” Bumatay, a Trump appointee, wrote in the opinion.


Judges Diarmuid O’Scannlain, a Reagan appointee, and M. Miller Baker, a Trump appointee on the U.S. Court of International Trade sitting by designation, both wrote concurring opinions.

The ruling is a win for the California Restaurant Association, a group representing restaurant managers and chefs, which first brought the suit in November 2019 shortly after the ban was enacted. Monday’s ruling overturns the U.S. District Court for the Northern District of California’s July 2021 decision, which found that “nothing in the EPCA requires that localities provide let alone continue to maintain natural gas connections.”

Despite attacks on the ban from the gas industry, multiple states and the federal government defended Berkeley’s ordinance.

“The Ordinance has the downstream effect of preventing the use of certain covered products in particular locations, but this is not enough to bring it within the scope of EPCA’s preemption provision,” the Justice Department wrote in a February 2022 amicus brief.

Berkeley’s ban inspired copycat laws in dozens of California cities and municipal legislation in Washington state, Massachusetts, Oregon, New York and elsewhere (Energywire, July 8, 2021).