On Tuesday, a federal appeals court decided not to review his earlier decision Overturning Berkeley, California’s first-in-the-nation gas ban in new buildings. The ruling dealt a blow to the city of Berkeley, which requested a retrial after the 9th U.S. Circuit Court of Appeals’ initial ruling in April, and casts doubt on similar policies to electrify buildings. dozens of other cities.
In fact, the court simply chose to uphold it earlier ruling in April to invalidate Berkeley’s gas ban, legal experts told Grist. But unless the city of Berkeley chooses to appeal the case to the Supreme Court, the 9th Circuit’s ruling is now final. (The Berkeley city attorney’s office did not respond to a request for comment on its next steps in time for publication.) That means for cities in the 9th Circuit region, which spans 11 western states and territories, including California, Oregon and Washington, local gas bans similar to Berkeley’s are no longer legal.
“For cities in the 9th Circuit that have laws closely modeled on the Berkeley ordinance, this is a door-locker,” said Amy Turner, director of the Cities Climate Law Initiative at Columbia University’s Sabin Center for Climate Change Law.
In 2019, Berkeley became the first city in the country to pass a ban on installing natural gas pipes in new buildings, which require all-electric appliances. Dozens of cities across the 9th Circuit, including more than 70 in California alonequickly followed, new laws enacted to reduce greenhouse gas emissions and indoor air pollution.
But later that year, the California Restaurant Association started a lawsuit against Berkeley’s policy, arguing that natural gas stoves were essential for the preparation of foods such as “flame-seared meat” and “charred vegetables”. In 2021, a federal district court ruled against the restaurant industry, but that decision was overturned by the 9th Circuit in April 2023. That court found that national energy efficiency standards preempted Berkeley’s law, which would have effectively prevented the use of gas-powered appliances that met federal standards. The city of Berkeley requested a retrial of the case before 11 judges on the 9th Circuit — a petition that was denied in this week’s decision.
Sarah Jorgensen, an attorney for the California Restaurant Association, told the San Francisco Chronicle that the judges recognized that “energy policy is a matter of national importance and that there should be uniform national regulation.” Sean Donahue, an attorney for the city of Berkeley, called the order disappointing, saying that Berkeley’s ordinance is “well within its authority to protect the health and safety of its own residents,” according to the Chronicle.
Tuesday’s denial included a detailed dissent written by U.S. Circuit Judge Michelle Friedland and seven other judges on the 9th Circuit. “Climate change is one of the most pressing problems facing society today, and we should not stifle local government efforts at solutions based on a clear misinterpretation of an inapplicable statute,” Friedland wrote. “I hope other courts will not repeat the panel opinion’s mistakes.”
Including opponents at all is highly unusual for an action as loose as denying a petition, Turner said. “It appears she is trying to bolster the cases of other states and local governments that may be looking to build electrification policies and provide a legal road map for why other courts should find a Berkeley-style ordinance to be legal, Turner remarked. .
In the United States, buildings are responsible almost a third of all greenhouse gas emissions. For cities motivated to electrify their buildings, Tuesday’s denial of a retrial is a “disappointing outcome,” said Jim Dennison, an attorney who works on building decarbonization at the Sierra Club. Since the April ruling, several California cities have already rolled back their own natural gas bans, including Encinitas, Santa Cruzand San Luis Obispo, to avoid legal risks. Eugene, Oregon, which modeled its policies on Berkeley’s, too lifted his gas ban in June.
Yet some cities, incl Los Angeles, San Franciscoand San Jose, still has natural gas bans on the books. Tuesday’s decision could inspire those cities to take action, but ultimately whether they decide to end or maintain their gas bans is up to each individual government, Turner said. It may also depend on the resources they have available to take on potential legal challenges.
“Local governments have different appetites for legal risk, so they chose to navigate this decision and this time in different ways,” Turner said. The legal uncertainty created by the Berkeley decision particularly affects smaller communities that may not have the staff and financial resources to take on potential litigation, she said. “This uncertainty is going to make some local governments pull back a little. And that is an unfortunate reality of being a local government. They don’t always have the resources that a San Francisco or a Berkeley has to throw behind a challenge like this.”
Both Turner and Dennison stressed that despite a backlash for local gas bans, city officials still have a wide range of options available for the electrification of buildings, including building codes and air pollution standards. Dennison highlights Washington state’s recently updated building codes as one legally robust way to reduce emissions from buildings. The codes, which set minimum energy efficiency standards, will require new buildings to achieve the same energy performance as buildings that start using electric heat pumps this year. In particular, it offers building owners flexibility to meet the standards instead of requiring them to install heat pumps or dispense with natural gas.
Local governments may also consider setting emission standards for buildings and appliances, which address air pollution rather than energy consumption. It is an approach taken by New York City, which prohibits new buildings from emitting more than a certain amount of carbon dioxide pollution. Turner notes that state utility regulators could also take steps to limit the expansion of natural gas infrastructure, which could also serve building electrification goals.
“Cities are extremely motivated to address emissions from their buildings, which are an incredibly important source of climate and health pollution,” Dennison said. “And I don’t think this court order can stand in the way of that progress.”
