Federal Preemption Prevents Berkeley from Going Cold Turkey on Natural Gas
The United States has the fourth largest Natural Gas Reserves in the World, consisting of 5.3% of the World’s share, only dwarfed by Russia (24.3%), Iran (17.3%), and Qatar (12.5%). As of 2020, 88% of California homes use natural gas for space and water heating, air conditioning, and/or cooking purposes.
In July 2019, the Council of the City of Berkeley, California, adopted an Ordinance prohibiting, with some exceptions, “Natural Gas Infrastructure in New Buildings.” The County defined “Natural Gas Infrastructure” as “fuel gas piping, other than service pipe, in or in connection with a building, structure or within the property lines of premises, extending from the point of delivery at the gas meter as specified in the California Mechanical Code and Plumbing Code.” And “Newly Constructed Building” refers to “a building that has never before been used or occupied for any purpose.”
On November 21, 2019, the California Restaurant Association (“CRA”), whose members consist of restaurateurs and chefs, challenged Berkeley’s regulation, raising a preemption claim under the Energy Policy and Conservation Act (“EPCA”). In turn, the Northern District of California dismissed CRA’s suit, limiting EPCA’s “preemptive scope to ordinances that facially or directly regulate covered appliances.”
On April 17, 2023, the Ninth Circuit Court of Appeals reversed the District Court’s decision, holding that EPCA “expressly preempts state and local regulations concerning” the installation of natural gas piping in newly constructed buildings. (Decision HERE.) The Ninth Circuit reasoned that Berkeley’s ordinance was a “regulation concerning the . . . energy use” of covered products because EPCA’s preemption provision “encompasses building codes that regulate natural gas use by covered products,” including eliminating the use of natural gas. The Ninth Circuit further explained that “EPCA preemption extends to regulations that address the products themselves and the on-site infrastructure for their use of natural gas.”
Although California aims to become carbon neutral by 2045, this case demonstrates the principle of preemption and how states and local governments cannot pass sweeping laws violating federal regulations. While California’s Climate Plan aims to cut air pollution by 71%, slash greenhouse gas emissions by 85%, and drop gas consumption by 94%, the State and Local Governments must acknowledge their limits. Quitting natural gas cold turkey may seem appealing, but significant changes take time, like most things in life.
Even if Berkeley’s prohibition on natural gas infrastructure is considered proactive, it is unrealistic. As explained above, states and local governments must comply with the EPCA, and most California homes, especially restaurants, rely on natural gas. Thus, the Ninth Circuit Appellate Court correctly reversed the District Court’s minimization of EPCA preemptory power.
Disappointed with the Ninth Circuit’s holding, on May 31, 2023, the City of Berkeley filed a Petition for Rehearing, seeking to have the Ninth Circuit reconsider the case, arguing that the Court’s decision misinterprets a “modest provision” of the EPCA as “enacting a preemptive juggernaut.” While it is unlikely that the Ninth Circuit will reconsider its holding, the City of Berkeley is showing that it will not stop until it can prevent all new homeowners from enjoying the warm flame from natural gas.