OAKLAND, Calif. (CN) — The city of Berkeley is trying to institute a backdoor ban on gas appliances by prohibiting natural gas lines in newly constructed buildings, a California restaurant industry group told a federal judge Tuesday.
Representing the California Restaurant Association, attorney Courtland Reichman said the city’s ordinance is preempted by the Energy Policy and Conservation Act, which regulates energy use by appliances. Since the law forbids states and cities from banning appliances based on the type of energy they use, the city’s ordinance restricting the use of natural gas in new buildings amounts to an end-run around the EPCA.
"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.”
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 regulation’s allegedly ruinous effect.
"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 CRA 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.”
At a virtual hearing Tuesday on Berkeley’s motion to dismiss, U.S. District Judge Yvonne Gonzalez Rogers questioned Deputy City Attorney Chris Jensen on the city’s energy strategy.
“In some ways it does seem like you're trying to use a backdoor approach to do something through you cannot do through the front door. What is the purpose of the legislation other than to ban all gas appliances?” she asked.
“The purpose is to transition the city infrastructure away from natural gas,” he answered, noting the “realistic possibility” that natural gas utilities will reach extinction in 14 years.
When the judge asked him why he would say such a thing, Jensen cited President Joe Biden’s intention to eliminate fossil fuels from power generation by 2035.
“Campaign promises don't carry a lot of weight in federal court, Mr. Jensen,” Gonzalez Rogers said.
Nonetheless, Jensen said, “the city can try to shape its infrastructure in a way that recognizes that in the near future natural gas service will be obsolete.”
At this point, the success of the case hinges on the legislative history and intent behind EPCA.
“The real question is the fundamental purpose of that statute and how you're trying to expand it for your client's own economic benefit, really,” Gonzalez Rogers told Reichman.
Reichman said Congress intended to use the law to prevent local building codes from discriminating between building methods.
“There are a variety of methods that can be used — from electricity to gas to thermal energy, and you have to permit choice,” he said. “The legislative intent is not to favor particular products or methods.”
Nor did Congress intend to allow cities to de facto ban gas appliances by forbidding the requisite gas hookups, he added.
Reichman said the restaurant industry is not trying to bend the statute to fit its case. Rather, the case is “in the heartland” of what EPCA was intended to cover.
Gonzalez Rogers turned back to Jensen. "The effect is to eliminate all natural gas appliances. You can't run a natural gas appliance if you don't have natural gas lines,” she said.
“Yes, but the government never intended to regulate where natural gas appliances were installed,” Jensen replied, adding that Congress intended for EPCA to regulate appliance manufacturers and set uniform energy efficiency standards for their products.
At the outset of the hearing, Gonzalez Rogers had a tentative ruling prepared in favor of the city. But she later said that she wanted more time to consider Reichman’s arguments.
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