A federal appeals court has overturned a 2019 ban on natural gas in new construction in Berkeley, California, setting a precedent that is likely to affect dozens of other municipalities.
Berkeley was the first city in the U.S. to ban natural gas lines in new construction. In a unanimous decision, the City Council said the ban was necessary to support Berkeley’s goal of achieving net-zero greenhouse gas emissions by 2050.
A federal court sided with city restaurant owners, who argued that the ban unlawfully trounced federal energy policy and hurt their businesses.
A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco handed down the unanimous ruling during a brewing nationwide battle over natural gas.
Dozens of other Democratic-led municipalities in several states have approved legislation to ban or restrict natural gas in new construction to cut greenhouse gas emissions.
Roughly 85 localities, most in California, have adopted some prohibition on the direct use of natural gas, according to the American Gas Association. Municipalities in other Democratic-led states, including Washington, Massachusetts, New York and Oregon, have enacted laws to limit or ban natural gas appliances.
SEE ALSO: Heated topic: Major flaws discovered in studies used to bolster efforts to ban gas stoves
Meanwhile, 20 states with Republican-led legislatures have enacted laws prohibiting bans on natural gas.
Energy policy strategist Frank Maisano said the 9th Circuit ruling could impact natural gas policies across the country.
“Berkeley was the initial one. It was the cannon shot on the Lexington green for banning gas stoves, and four years later, with all of these states and cities doing things on both sides, the initial shot is now proven to be illegal,” Mr. Maisano said.
The appeals court’s decision overturned a 2021 lower court ruling that upheld the law. The legal fight may be far from over and could reach the Supreme Court.
Members of the Berkeley City Council have not indicated whether they plan to challenge the ruling, but in a lengthy statement provided to The Washington Times, council member Kate Harrison said “there are many flaws in the decision” and the ruling, “if left uncontested, is yet another assault on our communities, working communities and future generations.”
Two of the three judges on the panel were appointed by President Trump, and the other was appointed by President Reagan.
The City Council could petition the Supreme Court to hear the case.
“The ball, for now, is in Berkeley’s court,” Sarah Jorgensen, who is representing the California Restaurant Association in the case, told The Times.
The California Restaurant Association argued in the lawsuit that natural gas appliances are critical for restaurants to operate effectively and efficiently and Berkeley was overreaching by banning new natural gas hookups.
“Cities and states cannot ignore federal law in an effort to constrain consumer choice, and it is encouraging that the 9th Circuit upheld this standard,” California Restaurant Association officials said in a statement.
Ms. Jorgensen said the ruling signals that cities and states “should not be permitted to overrule energy decisions that affect the country as a whole.”
The decision, she said, “sets an important precedent for future cases, especially with other cities considering similar bans or restrictions on natural gas.”
The liberal push to end natural gas use is accelerating because of concerns about climate change and the belief that natural gas is closely tied to greenhouse gas emissions from fossil fuels.
Boston Mayor Michelle Wu last week signed a city ordinance requiring new construction that uses heating oil or natural gas to install solar panels and additional wiring to convert to electrification.
Massachusetts enacted a law last year allowing some cities and towns to ban natural gas in new construction.
New York Gov. Kathy Hochul said in January that her state should phase out the sale of oil and gas appliances in existing residential and commercial buildings. She proposed a requirement that all new buildings and homes use only electricity by 2030.
The New York Legislature has cut from its budget a provision to ban natural gas hookups in new construction starting in 2024. Lawmakers said the policy measure would have to be debated and passed in separate legislation, angering green energy proponents.
The Biden administration is also looking for ways to end natural gas use in homes in a quest for net-zero carbon emissions in the U.S. by 2050.
The Consumer Product Safety Commission is “researching gas emissions in stoves and exploring new ways to address health risks,” said Chairman Alexander Hoehn-Saric, although much of the research that found health risks from using the appliances was flawed.
Mr. Hoehn-Saric said the commission is “not looking to ban gas stoves.”
• Susan Ferrechio can be reached at sferrechio@washingtontimes.com.
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