By Kiley Russell
Bay City News
The U.S. Court of Appeals for the 9th Circuit has ruled against Berkeley’s pioneering natural gas ban.
In a majority decision filed Tuesday, the court said Berkeley’s ordinance banning gas pipelines in new construction runs afoul of the federal Energy Policy and Conservation Act.

The act “expressly preempts state and local regulations concerning the energy use of many natural gas appliances, including those used in household and restaurant kitchens,” Judge Patrick Bumatay wrote in the majority opinion.
“Instead of directly banning those appliances in new buildings, Berkeley took a more circuitous route to the same result,” Bumatay wrote. “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.”

The Berkeley City Council unanimously approved the first-of-its-kind ordinance in July 2019.
It was designed to combat climate change by reducing natural gas emissions throughout the city by encouraging the use of more ecologically friendly electrical hookups.

“Climate change is an existential threat to our city, our homes, and our future,” Councilmember Kate Harrison, who authored the ordinance, said at the time. “It is time to take aggressive action to reduce our emissions across all sectors.”
The California Restaurant Association sued the city in November 2019, and in 2021 a lower court ruled against the restaurant organization.
In that ruling, the court found that the local ordinance didn’t conflict with federal regulations because it indirectly applied to appliances covered by federal law and that the federal rules should be interpreted so as not to “sweep into areas that are historically the province of state and local regulation.”

Last year, a panel of the 9th Circuit disagreed and ruled that federal law preempted the city’s new ordinance and on Tuesday, the full panel of judges denied a request to rehear the case.

Judge Michelle Friedland, writing the dissenting opinion for the 9th Circuit, said the majority opinion “misinterprets the statute’s key terms” and “needlessly blocks Berkeley’s effort to combat climate change, along with the equivalent laws passed by other local governments. Our system of federalism requires much more respect for state and local autonomy.”

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