Berkeley Gas Ban Denied Rehearing Petition

(Jan. 4, 2024) — The United States Court of Appeals for the Ninth Circuit has denied the City of Berkeley, California, the chance to appeal a ruling against a gas ban the city put in place in July 2019. The ban applied to natural gas hookups in new construction, the first of its kind in the U.S.

A three-judge panel struck down the ban in 2023, stating, “[The Energy Policy and Conservation Act (EPCA)] would no doubt preempt ordinance that directly prohibits the use of covered natural gas appliances in new buildings.” The EPCA applies on a national level to energy conservation in the U.S. and preempts state and local regulations that affect the energy use of federally regulated appliances, and the ruling indicates the Berkeley gas ban violated and was preempted by federal law.

The city filed a rehearing petition to the court, but the denial means the original ruling holds unless reversed by the U.S. Supreme Court. The Court of Appeals’ decision on the petition concluded, “In sum, Berkeley can’t bypass EPCA’s preemption of building codes that directly ban covered products by instead simply prohibiting the piping that transports natural gas from the utility’s meter to the appliance. EPCA thus preempts the ordinance’s effect on covered products.”

NPGA is currently a plaintiff in a lawsuit against a New York ban prohibiting the installation of fossil fuel equipment and systems in most new buildings in the state. Part of the lawsuit’s strategy is to invoke legal precedent set by the Berkeley case, in which the EPCA preempts state regulations on gas appliances.