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In a potential blow to efforts to slowly wean cities from natural gas, a federal appeals court on Monday overturned Berkeley, California’s ban on natural gas hookups to new buildings.
Berkeley’s was the first such ban, but since then at least 90 cities and counties, and one state, have passed either ordinances or building codes that ban natural gas lines to new buildings and homes as part of an effort to phase out natural gas as they decarbonize their energy systems.
These rules are being fought by natural gas companies, utilities and some restaurant groups.
Monday’s ruling from the Ninth Circuit Court of Appeals came after the California Restaurant Association challenged Berkeley’s ordinance, which went into effect in 2020.
The Berkeley ordinance was not a building code requirement, so the appeals court ruling will only affect other municipalities that used the same type of ordinance and only in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington state.
Most municipalities that have such bans in place use building energy codes, which the appeals court specifically said was allowable.
“Roughly 70% of California municipal electrification ordinances will not be impacted by this interim order. And nationwide there are already numerous other policy pathways to protect public health and reduce our reliance on fossil fuels in buildings,” said Gloria Smith, managing attorney for the Sierra Club’s Environmental Law Program.
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What did Berkeley’s natural gas ban do?
Berkeley passed an ordinance in 2019 meant to reduce its dependence on fossil fuels and create “healthier, more resilient buildings.”
It prohibited natural gas hookups to new buildings, in effect requiring new buildings be all-electric, with electric stoves, hot water heaters and furnaces.
Existing buildings and remodels weren’t affected and could retain their natural gas connections and appliances. Portable propane heaters and grills were also not affected.
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What did the court rule?
The ruling was a response to a case first brought by the California Restaurant Association against Berkeley in 2019, after the ordinance had been passed but before it went into effect.
“Natural gas appliances are crucial for restaurants to operate effectively and efficiently, as they allow for a wide variety of cuisines and innovations in the restaurant industry,” the association said in a statement.
On Monday, a federal appeals court ruled the Berkeley ordinance was preempted by the federal Energy Policy and Conservation Act of 1975.
The court said that under that federal law, only the U.S. Department of Energy has the right to set conservation standards for building appliances like furnaces, hot water heaters and HVAC systems. This was a broader interpretation than the DOE itself argued, which it told the appeals court in an amicus brief.
In an analysis of the ruling, Amy Turner, a senior fellow at the Sabin Center for Climate Change Law at Columbia Law School, said the Ninth Circuit interpreted that to mean states and local entities can’t interfere with an end-user’s ability to use a product.
“The court is saying that Berkeley was effectively regulating the energy efficiency of the appliances themselves by banning new natural gas hookups,” Turner said.
Monday’s ruling overturned a 2021 ruling by the U.S. District Court for the Northern District of California, which upheld the Berkeley ordinance.
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What’s behind the effort to ban natural gas to new buildings?
Cities and towns that pass such building rules want to decrease the amount of fossil fuels residents burn. Banning natural gas in new buildings means it won’t be “baked in” for the lifetime of the building, which could be as much as a century – a century during which the United States will be working to transition away from fossil fuels.
As of April, 89 cities or towns and one state – Washington – had some type of requirement that new buildings be all-electric and not be piped for natural gas, according to a list kept by the Building Decarbonization Coalition.
Note that no city or town has ever mandated that natural gas in an existing building be turned off, only that a new building can’t be piped for natural gas.
Most Americans don’t cook on a gas stove
The bans on new natural gas connections are meant to slowly phase out the use of natural gas but the issue that tends to inflame the public is the idea of giving up their gas stoves.
Only about 61% of American homes use natural gas in any form, according to the U.S. Energy Information Administration. The number is highest in the West, at 50%, and lowest in the South, at 25%.
Despite that, the majority of Americans cook on electric, not gas, stoves. Overall, just 38% have a gas stove or cooktop. The states with the largest number of gas stoves are California, at 70% and New Jersey at 69%.
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Are gas stoves really bad for climate change?
Natural gas is the industry name for methane, a potent greenhouse gas.
The United States has committed to phasing out the use of greenhouse gas-emitting fossil fuels by 2050, so cutting the use of methane in buildings will be an important part of that.
In 2022, U.S. methane consumption averaged a record 88.5 billion cubic feet per day, the highest annual rate since records began in 1949. Consumption last year increased 5% from 2021, according to the U.S. Energy Information Administration.
Natural gas has been the fastest-rising fossil fuel over the past decade as it largely replaced coal. Though it produces less carbon dioxide than coal, burning methane is still nowhere near carbon-neutral.
Carbon dioxide and methane are the primary greenhouse gases that are causing climate change.
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