Authored by Katabella Roberts via The Epoch Times,
The U.S. Court of Appeals for the Ninth Circuit has declined to reconsider a ruling preventing a ban proposed by the City of Berkeley, California, on new natural gas hookups from going into effect.
The panel’s Jan. 2 ruling was in response to a lawsuit filed by the California Restaurant Association (CRA) alleging federal law overruled the City of Berkeley’s ban on installing natural gas installations in newly constructed buildings.
Berkeley became the first U.S. city to ban gas stove hook-up installations in 2019 after the city council passed an ordinance requiring that new buildings be built all-electric, beginning Jan. 1, 2020.
Existing buildings were not affected by the ordinance, which aimed to curb greenhouse gas emissions.
In their lawsuit, the association—the largest nonprofit statewide restaurant trade group in the nation—argued that restaurants rely on natural gas for preparing certain foods and that the ban would impact the way chefs are trained to prepare food, which is typically via natural gas stoves.
They further argued the Energy Policy and Conservation Act (ECPA) of 1975 preempts the City of Berkeley’s ban on gas hookup installations in new residential and commercial buildings.
Under the ECPA, local regulations are prevented from impacting the energy use of natural gas appliances.
However, a lower court ruled in favor of Berkeley in July 2021, disagreeing with the restaurant association’s interpretation of federal energy law, prompting CRA to file an appeal.
Berkeley ‘Waded Into a Domain Preempted by Congress’
In April 2023, a three-judge panel of the federal appeals court reversed that earlier decision, prompting another challenge, this time by Berkeley city officials.
In their ruling on Tuesday, the Ninth Circuit panel wrote that, “By completely prohibiting the installation of natural gas piping within newly constructed buildings, the City of Berkeley has waded into a domain preempted by Congress.”
“The Energy Policy and Conservation Act expressly preempts State and local regulations concerning the energy use of many natural gas appliances, including those used in household and restaurant kitchens,” the panel wrote. “Instead of directly banning those appliances in new buildings, Berkeley took a more circuitous route to the same result. It enacted a building code that prohibits natural gas piping in those buildings from the point of delivery at a gas meter, rendering the gas appliances useless.”
“EPCA thus preempts Berkeley’s building code, which prohibits natural gas piping in new construction buildings from the point of delivery at the gas meter,” they concluded.
Not every member of the panel of judges agreed, however.
U.S. Circuit Judge Michelle Friedland, who was appointed by President Barack Obama, wrote in dissent in what she said was the first time “in nearly a decade on the bench.”
Flames emerge from burners on a natural gas stove, in Walpole, Mass. on June 21, 2023. (The Canadian Press/AP-Steven Senne)
Ruling Is a ‘Critical Victory’
The judge pointed to efforts to combat the perceived dangers of climate change, which she said is “one of the most pressing problems facing society today.”
“The opinion misinterprets the statute’s key terms to have colloquial meanings instead of the technical meanings required by established canons of statutory interpretation,” the judge wrote.
“The panel opinion needlessly blocks Berkeley’s effort to combat climate change, along with the equivalent laws passed by other local governments.”
Judge Friedland added that the court “should not stifle local government attempts at solutions based on a clear misinterpretation of an inapplicable statute.”
Following the panel’s ruling Tuesday, an attorney for CRA, Reichman Jorgensen Lehman & Feldberg partner Sarah O. Jorgensen, told Courthouse News Service that the judges affirmed the association’s interpretation of federal energy law.
“As the panel decision recognizes, Berkeley’s ban on gas piping concerns the energy use and energy efficiency of covered appliances, and is preempted by the act and therefore invalid and unenforceable,” Ms. Jorgensen said.
“The denial of rehearing and confirmation of the panel decision is a critical victory for the members of the California Restaurant Association, including its chefs and restaurant owners, and will protect energy security, domestic supply, and consumer choice,” the attorney added.
The Epoch Times has contacted a spokesperson for the City of Berkeley for comment.
Roughly 38 percent of U.S. households use natural gas for cooking, according to the U.S. Energy Information Administration.
The Biden administration has been clamping down on gas stoves in recent months as part of efforts to cut greenhouse gases, although the move has faced fierce opposition from members of the gas appliance industry who are concerned it could lead to more financially viable and efficient natural gas products being pulled from the market.
