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Berkeley Plan to Ban Natural Gas Survives Challenge

A federal judge found federal laws regulating appliance use do not pertain to Berkeley’s recently enacted ban on natural gas piping to newly constructed buildings, meaning the ordinance is safe for now.

(CN) --- The city of Berkeley, California, can regulate its energy infrastructure despite challenges from industry groups claiming the city’s ban on natural gas lines in newly constructed projects conflicts with federal law, a federal judge ruled Tuesday night. 

U.S. District Court Judge Yvonne Gonzalez Rogers found the city's ordinance --- which bars new construction from being hooked up to natural gas --- is not preempted by federal law. 

“Berkeley has exercised its expressly carved-out authority to regulate the local distribution of natural gas,” Rogers wrote in the 19-page ruling

The California Restaurant Association sued Berkeley in federal court saying the ban on natural gas piping in new construction runs contrary to provisions in the Energy Policy and Conservation Act (EPCA), which regulates energy use by appliances.

Cortland Reichmann, attorney for the association, argued in front of Gonzalez Rogers this past February that the newly enacted ordinance amounts to an end run around the EPCA, because the federal government prevents states and localities from banning appliances based on the source of energy used. 

"Their intent is to ban gas appliances,” Reichman said. “EPCA does not allow them to do through the back door what they can't do through the front door.”

Gonzalez Rogers rejected this argument, saying that cities like Berkeley are expressly allowed by federal law to regulate their energy infrastructure. She also said construing the ordinance as a de facto ban on appliances was a reach. 

“The Berkeley ordinance does not facially regulate or mandate any particular type of product or appliance,” Gonzalez Rogers wrote. “Instead, the ordinance focuses on regulating the underlying natural gas infrastructure.”

The judge said the ordinance can be construed only as an indirect ban on certain appliances if the plaintiff’s argument is presented in the most favorable light, but falls short of being a direct ban on those appliances. 

“The fact that an ordinance focused on natural gas piping for new buildings may have some downstream impact on commercial appliances is insufficient,” the judge wrote. 

In 2019, Berkeley became the first city in California to ban the use of natural gas in new buildings with an ordinance requiring all new construction to run on electric power starting in 2020.

The news hit the restaurant industry particularly hard, and it moved swiftly to counteract the ordinance's potentially ruinous effect on eateries.

"Many restaurants will be faced with the inability to make many of their products which require the use of specialized gas appliances to prepare, including for example flame-seared meats, charred vegetables, or the use of intense heat from a flame under a wok,” the restaurant association says in its lawsuit. "Many chefs are trained using natural gas stoves, and losing natural gas will slow down the process of cooking, reduce a chef’s control over the amount and intensity of heat, and affect the manner and flavor of food preparation.”

While the restaurant industry in Berkely is wary of the new law, their legal argument hinged on the legislative history of the EPCA, which the plaintiffs argued prevented cities, counties and states from barring certain types of energy use. 

Gonzalez Rogers had already informed the restaurant association she had tentative ruled in favor of the city, but needed more time to consider Reichmann’s arguments during the motion to dismiss hearing in February. 

Ultimately, she ruled in favor of the city, though she also found the restaurant association has standing, which gives the organization latitude to alter their legal approach. But it is clear, absent intervention by the Ninth Circuit, that the legal gambit to tie local regulation of energy infrastructure to the federal policy regulating the use of appliance is dead. 

Berkeley contends the ordinance is necessary, pointing to comments by President Joe Biden about moving the United States away from fossil fuels as an energy source and toward more climate-friendly renewable energy. 

Attorneys for Berkeley argued that natural gas piping could be obsolete within the next 20 years and the ordinance reflects that possibility. 

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Categories / Energy, Environment, Regional

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