On Tuesday, a federal appeals court chose not to revisit its decision to strike down Berkeley, California’s first-in-the-nation gas ban. The ruling was a big blow to the city of Berkeley, which requested a rehearing after the 9th U.S. Circuit Court of Appeals’ initial decision in April.
It also casts uncertainty over similar policies to electrify buildings in dozens of other cities. What this means is that the court chose to uphold its earlier judgment in April to invalidate Berkeley’s gas ban.
This makes the judgment final unless the city of Berkeley chooses to appeal the case to the Supreme Court. That means similar local gas bans are no longer legal for cities in the 9th Circuit region, which spans 11 western states and territories.
“For cities in the 9th Circuit that have laws that are modeled closely on the Berkeley ordinance, this is a door closing,” Amy Turner, director of the Cities Climate Law Initiative at Columbia University’s Sabin Center for Climate Change Law, said.
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Berkeley was the first city to ban the installation of natural gas piping in new buildings in 2019. Dozens of cities across the 9th Circuit region followed suit, drafting new environmentally friendly laws.
However, later that year, the California Restaurant Association initiated a lawsuit against Berkeley’s policy. Their argument was that natural gas stoves were essential for preparing foods like “flame-seared meats” and “charred vegetables.”
In 2021, a federal district court took Berkeley’s side. But that decision was overturned in April 2023 by the 9th Circuit. That court argued that national energy efficiency standards preempted Berkeley’s law, which would, in effect, prevent the use of gas-powered appliances that meet federal standards.
The city of Berkeley requested a rehearing of the case before 11 judges on the 9th Circuit. However, the petition was denied in last week’s decision. Sarah Jorgensen is a lawyer representing the California Restaurant Association.
According to her, the judges acknowledged that “energy policy was a matter of national concern and that there should be uniform national regulation.”
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Meanwhile, Sean Donahue, a lawyer for the city of Berkeley, tagged the order as disappointing. He believes Berkeley’s ordinance “is well within its authority to protect the health and safety of its residents.”
In the United States, buildings make up nearly a third of all greenhouse gas emissions. For cities that want to electrify their buildings, Tuesday’s denial of a rehearing is a “disappointing outcome,” said Jim Dennison, an attorney working on building decarbonization at the Sierra Club.
ince the April ruling, several cities in California, including Encinitas, Santa Cruz, and San Luis Obispo, have rescinded their natural gas bans to avoid legal risks.
Eugene, Oregon, which modeled its policy on Berkeley’s, also dismissed its gas ban in June. However, some cities, including Los Angeles, San Francisco, and San Jose, still have active natural gas bans.
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Tuesday’s decision could inspire those cities to take action, but ultimately, it is up to each government whether to halt or maintain their gas bans. It could also depend on their available resources to take on potential legal challenges.
At this time, more cities have become highly motivated to address emissions from their buildings as they are a significant source of climate and health-harming pollution. It is unlikely that the new court order can hamper that progress. But until it is properly addressed, natural gas is here to stay, at least in some areas.
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