Court Strikes Down Berkeley's Landmark Ban on Natural Gas in New Construction

A federal appeals court on Monday struck down Berkeley’s first-in-the-nation ordinance banning natural gas hookups in new buildings, ruling that it conflicted with federal law.

In its decision (PDF), a three-judge panel of the 9th Circuit Court of Appeals sided with the California Restaurant Association, a powerful industry group that had sued the city. The CRA had argued the ordinance banning natural gas piping also effectively banned natural gas products, in violation of a nearly 50-year-old U.S. energy law that, among many other things, authorizes federal officials to set national efficiency standards.

The 9th Circuit sided with the CRA in finding that the federal law preempts Berkeley’s ordinance.

“In sum, Berkeley can’t bypass preemption by banning natural gas piping within buildings rather than banning natural gas products themselves,” the panel wrote in its 3–0 ruling.

“Congress ensured that States and localities could not prevent consumers from using … products [covered under federal law] in their homes, kitchens, and businesses.”

The panel, composed of the court’s most conservative members, including two Trump appointees, rejected a federal judge’s 2021 ruling upholding the ordinance.

“It’s disappointing the Ninth Circuit held that Berkeley, like many other cities around the country, cannot take common sense measures to protect its constituents from climate change,” Berkeley Mayor Jesse Arreguín said in a statement following Monday’s ruling. “Berkeley is evaluating the decision and its next steps.”

Berkeley’s ordinance, which was unanimously approved by the City Council in 2019 and went into effect the following year, bans the use of natural gas pipes in most new residential and commercial construction. The measure was hailed by environmentalists, who argue that scaling back the use of the planet-warming fossil fuels in buildings is essential to reaching greenhouse gas reduction goals to fight climate change.

Since then, dozens of other cities in California, including San Francisco, San José and Los Angeles, have passed similar measures to prohibit gas lines in new construction projects. And both regional and statewide air regulators have recently issued rules phasing out the sale of new gas-powered furnaces and water heaters.

It was not immediately clear how those various initiatives will be affected by Monday’s ruling. Berkeley is likely to ask the full 11-judge appeals court to review the case.

In a statement on Monday, the CRA cheered the ruling, arguing that natural gas appliances are crucial for the state’s already struggling restaurant industry, and calling the city’s gas ordinance “an overreaching measure beyond the scope of any city.”

“The panel’s decision sets an important precedent for future cases, especially with other cities and states considering restrictions on natural gas, and it prevents a patchwork of disparate regulations and protects consumer choice,” CRA attorney Courtland Reichman said in the statement.

But a coalition of environmental groups contend the oil and gas industry is squarely behind the group’s legal challenge.

The Natural Resources Defense Council and Earthjustice, among other organizations, claim the gas industry has partnered with the restaurant association and other trade groups in a surreptitious campaign to block such bans and discourage other cities from pursuing similar electrification efforts.