Legal Insurrection by Mary Chastain Monday, April 17, 2023
“And no doubt Berkeley’s ban, if adopted by States and localities throughout the country, would ‘significantly burden’ the ‘sale’ of covered products ‘on a national basis.'”The Ninth U.S. Circuit Court of Appeals in San Francisco struck down the Berkeley, CA ordinance that bans natural gas lines in new construction.
Berkeley banned natural gas in 2019.
The CRA filed its lawsuit, contending that the law “was an attempt to regulate energy efficiency and was therefore overridden by the federal Energy Policy and Conservation Act, which sets energy-efficiency standards for a number of appliances, including air conditioners, furnaces and water heaters.”
U.S. District Judge Yvonne Gonzalez Rogers of Oakland upheld the law:
Under federal law, “states and localities expressly maintain control over the local distribution of natural gas,” Gonzalez Rogers said Tuesday in a ruling dismissing the suit.
She said the federal law cited by the restaurant owners “is designed to avoid a patchwork of state efficiency standards for certain covered appliances; nothing in the statute evinces legislative intent to require local jurisdictions to permit the extension of natural gas service.”
A three-judge panel on the court disagreed with Gonzalez Rogers.
From the opinion:
By completely prohibiting the installation of natural gas piping within newly constructed buildings, the City of Berkeley has waded into a domain preempted by Congress. The Energy Policy and Conservation Act (“EPCA”), 42 U.S.C. § 6297(c), expressly preempts State and local regulations concerning the energy use of many natural gas appliances, including those used in household and restaurant kitchens. Instead of directly banning those appliances in new buildings, Berkeley took a more circuitous route to the same result. It enacted a building code that prohibits natural gas piping into those buildings, rendering the gas appliances useless.
More:
https://legalinsurrection.com/2023/04/federal-appeals-court-tosses-berkeleys-ordinance-banning-natural-gas-in-new-construction/
