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What Will Happen with Berkeley’s Natural Gas Ban?

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Todd Carney's picture
Writer, Freelance

Todd Carney is a graduate of Harvard Law School. He holds a Bachelor’s degree in Political Science and Public Communications. He writes on many different aspects of energy, in particular how it...

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  • Feb 11, 2022

Many people are concerned about energy consumption and hope for a solution from their leaders. However, sometimes when government leaders come up with solutions they face criticism for not doing enough, or that the solution comes at too great of a cost. A policy that falls in the latter category is the city of Berkeley’s ban on natural gas. Back in 2020, Berkeley banned natural and fossil gas connections in new buildings. After Berkeley made this decision, other cities followed suit. However, Berkeley’s policy has faced criticism. Many claim that from a policy perspective that the law hurts people who want to start new businesses, since some entities, like restaurants, need to use natural gas in cooking. Additionally, some people claim that the city does not actually have the legal authority to enact the ban. Two years later legal challenges against the law are continuing.

The Ban on Natural Gas

In July 2019, Berkeley passed an ordinance that banned natural gas hook-ups for just about all residential and commercial construction. CA had set a goal to be zero-carbon by 2045, so Berkeley felt dramatically reducing natural gas could help ensure that CA met this goal. Berkeley wanted the ordinance to lead to the city having electric-only buildings long-term. The law formally went into effect on January 1st.

Before the law even went into effect, the California Restaurant Association (CRA) sued to stop the law on the basis that Berkeley’s law usurped the regulatory standards put in place by the California and Federal Government. The CRA also complained that the law would disproportionately hurt restaurants because the intense and specialized cooking that takes place in many restaurants cannot replace gas, while many businesses and residences can. The CRA even claimed that the law could hurt specific ethnicities because their style of cooking relied on certain heat intensities that natural gas could only accomplish.

Past Battles Over the Ban

Over the last two years, the CRA has continued their legal battle against the law. The CRA pursued their lawsuit in federal court, but again alleged that the law violated state and federal law. The CRA likely stuck to a legal challenge because the law had a lot of support among Berkeley’s resident, so there is not enough political demand to repeal the law.

The CRA primarily relied on the federal law, the Energy Policy and Conservation Act (EPCA), on the basis that the EPCA controlled the regulations of natural gas, not local laws. In July 2021,  A federal district judge in California, Yvonne Gonzalez Rogers, dismissed the case on the basis that the EPCA did not give the CRA the protections that they sought, in part because the Berkeley law actually regulated housing, by saying that new construction could not have natural gas, rather than outright banning natural gas in all buildings.

As the legal case over Berkeley’s law played out, several Liberal counties and cities throughout the US started enacting similar bans. Meanwhile, a handful of Conservative states passed laws that said localities could not enact a ban like Berkeley’s. So like many issues in the US right now, the regulation of natural gas is political. As a result, where someone lives could impact the availability of natural gas.

Recent Developments

After the federal district judge in CA dismissed the CRA’s case, the CRA appealed to the Ninth Circuit. The CRA argued that the federal district judge took too much of an expansive view of Berkeley’s authority to enact regulations that impact energy. The CRA also pointed out that past statements and the legislative history of the ordinance show that the supporters of the law specifically wanted it because it would have the impact of regulating natural gas. So the CRA just thinks that Berkeley was using a loophole to get around the EPCA’s limits on regulating energy.

In the last week, the CA Attorney General filed a brief that backed Berkeley in the lawsuit. Additionally, the Department of Energy also filed a brief saying that no federal law on energy does not prevent bans like Berkeley’s. These briefs are significant for two reasons. First, no matter what someone thinks of the policy from a legal standpoint, the Attorney General of California and the US Department of Energy bring a certain level of legal credibility that Berkeley might not have on their own. Additionally, from a political standpoint, Berkeley is well to the left of the US and even CA. So the fact that a CA statewide official and the Biden administration are backing Berkeley shows that this policy is minimally in the political mainstream of the Democratic Party. This means politicians in Blue states and possibly some purple states can have the political support to pass laws like the one in Berkeley.

That being said, there are still many states going in the opposite direction and not even letting localities that are to the left of the state pass these kind of laws. Additionally, the case at hand is far from over, so it is possible the 9th Circuit or even US Supreme Court might rule differently than the federal district judge. Whatever happens, natural gas is likely to remain a political issue.


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