Berkeley Gas Hookup Ban Tossed Out by Federal Court

In 2019, Berkeley became the first US city to ban new natural gas hookups in building construction. This week, a three-judge panel of the Ninth Circuit of the US Court of Appeals cited a 1975 law to toss out Berkeley’s ban.

Since 2019, Berkeley’s law has been adopted in one form or another by cities across the US—including more than 70 cities in California—and last week, tentatively, by New York State.

The jurisdiction of the Ninth Circuit panel is restricted to 11 Western states and territories, but its ruling sends a strong signal that a national legal test of gas hookup bans may be looming.

The three-judge panel found the Berkeley ban to be in violation of the 1975 Energy Policy and Conservation Act, which gave the US Department of Energy the sole authority to set appliance energy standards, SiliconValley reported.

The panel said the Nixon-era law, which was written to promote the use of natural gas by setting federal standards for stoves, blocks the imposition of municipal natural gas bans in 2023. The judges ruled that by banning building hookups, Berkeley effectively banned the use of natural gas—including in appliances that are covered under the 1975 Energy Act.

The California Restaurant Association filed a lawsuit against Berkeley’s ban in November 2019, seeking to safeguard natural gas kitchen appliances. The trade group made The Energy Act the focal point of its legal arguments.

According to the trade group’s lawsuit, the city’s ordinance harms its industry because its members would be prohibited from moving into or constructing new buildings if they want to use natural gas.

Many restaurateurs and foodies are adamant that food cooks better over gas, “whether it be flame-seared meats, charred vegetables, or the use of intense heat from a flame under a wok,” the lawsuit said.

The appeals court panel ruled April 17 that gas bans do create remote, indirect effects on the energy use of such equipment. By limiting an end user’s ability to employ products that are covered by the 1975 ruling, the court argued that Berkeley overstepped its authority on regulating energy use.

However, legal analysts told SiliconValley that the ruling doesn’t impact cities that have taken a building code-based approach to natural gas bans, including Mountain View, Palo Alto and Santa Clara.

This is because specific exceptions have been carved out of the 1975 federal law to allow cities to add requirements or strong incentives for all-electric new construction into building and energy codes—an alternative to banning gas piping and hookups.