Federal Law Preempts Berkeley's Natural Gas Pipeline Ban

• Published date: 13 July 2023
• Subject Matter: Energy and Natural Resources, Energy Law, Oil, Gas & Electricity
• Law Firm: Pierce Atwood LLP
• Author: Mr Randall Rich

Whether you are a James Beard Award-winning chef or a self-taught home cook dreaming of that shiny new gas stove, you can rest somewhat easier. The U.S. Court of Appeals for the Ninth Circuit has ruled that the federal Energy Policy and Conservation Act (ECPA), 42 U.S.C. ' 6297(c) preempts the City of Berkeley, California's 2019 regulation prohibiting the installation of natural gas piping in new buildings.

On April 17, 2023, the court of appeals issued an opinion in California Restaurant Association v. City of Berkeley, No. 21-16278, reversing a lower court decision and finding that ECPA "expressly preempts state and local regulations concerning the energy use of many natural gas appliances, including those used in household and restaurant kitchens." Berkeley's ordinance, similar to those proposed elsewhere, did not ban gas appliances.

Instead, the city prohibited installation of natural gas piping extending from the local distribution company's facilities into new buildings, making the use of gas appliances in such buildings impossible. Prohibition of Natural Gas Infrastructure in New Buildings, Berkeley Mun. Code ' 12.80.040(A). The stated purpose of the ordinance was to "eliminate obsolete natural gas infrastructure and associated greenhouse gas emission in new buildings where all-electric infrastructure can be most practicably integrated, thereby reducing the environmental and health hazards produced by the consumption and transportation of natural gas." Id. at ' 12.80.010(H).

The district court below rejected the preemption argument, narrowly construing ECPA as applying only to consumer products that are not regulated under the ordinance and limiting its "sweep into areas that are historically the province of state and local regulation." California Restaurant Association v. City of Berkeley, 547 F. Supp. 3d 878, 891 (N.D. Cal. 2021). The appeals court's opinion examines the text, structure, and context of the ECPA to evaluate the preemption argument and reaches the opposite result.

The court explains that once the federal government establishes an energy conservation standard for a particular product, ECPA provides that "no State regulation concerning the energy efficiency, energy use, or water use of such covered product shall be effective with respect to such product." 42 U.S.C. ' 6297(c) (emphasis added).

Section 6291(4) defines "energy use" as "the quantity of energy [including electricity or fossil fuels] directly consumed by a consumer product...