Ninth Circuit Appeals Court Overturns Berkeley’s Ban on Gas Stoves

Berkeley was the first city in the United States to ban gas stoves, in 2019. This followed the 2018 passage of Senate Bill 100 by then-Senator Kevin de Leon (D-Los Angeles), which established the 100 Percent Clean Energy Act of 2017 increasing the 2011 Renewables Portfolio Standard requirement from 50 percent by 2030 to 60 percent, and created the policy of planning to meet all of the state’s retail electricity supply with a mix of RPS-eligible and zero-carbon resources by December 31, 2045, for a total of 100 percent clean energy.

SB 100 also established an ambitious target of 60 percent renewable electricity by 2030 and accelerates the current 50 percent target to 2026.

Berkeley banned the use of natural gas in new home and new building construction with a local ordinance requiring all new construction to run on electric power, which started in 2020, Courthouse News reported.

“The news hit the restaurant industry particularly hard, and it moved swiftly to counteract the regulation’s allegedly ruinous effect.”

The California Restaurant Association filed suit alleging “the city’s ordinance is preempted by the Energy Policy and Conservation Act, which regulates energy use by appliances. Since the law forbids states and cities from banning appliances based on the type of energy they use, the city’s ordinance restricting the use of natural gas in new buildings amounts to an end-run around the EPCA.”

“Many restaurants will be faced with the inability to make many of their products which require the use of specialized gas appliances to prepare, including for example flame-seared meats, charred vegetables, or the use of intense heat from a flame under a wok,” the lawsuit says, the Globe reported. It also pointed out the local implications to restaurants, saying “Indeed, restaurants specializing in ethnic foods so prized in the Bay Area will be unable to prepare many of their specialties without natural gas.

In 2021, U.S. District Judge Yvonne Gonzalez Rogers ruled that the city had the authority to regulate the distribution of natural gas when she dismissed the restaurant association’s lawsuit last year. Judge Rogers was appointed by President Barack Obama.

However, the restaurant association appealed and the Ninth Circuit agreed.

Courthouse News reported on the Ninth Circuit decision:

A Ninth Circuit panel on Monday closed the valve on Berkeley’s ban on natural gas piping in new buildings, finding it’s preempted by federal conservation law.

In May 2022, the appeals panel, composed Judge M. Miller Baker — sitting by designation from the U.S. Court of International Trade — and fellow Donald Trump appointee U.S. Circuit Judge Patrick Bumatay, and Senior U.S. Circuit Judge Diarmuid O’Scannlain, a Ronald Reagan appointee, heard arguments from lawyers.

The three-judge panel’s ruling reverses a federal judge’s dismissal of a lawsuit by the California Restaurant Association claiming the Energy Policy and Conservation Act preempts the San Francisco Bay Area city’s ban. The group said the ordinance would affect chefs’ ability to prepare food the way they are typically trained — using natural gas stoves.

California opened a can of worms going back to AB 32, in 2006, the so-called “Global Warming Solutions Act” signed into law by Gov. Arnold Schwarzenegger.

As Ed Ring wrote for the Globe in 2019:

California has long been proclaiming itself the leader in fighting “climate change,” and incoming governor Gavin Newsom promises to continue the efforts. The big push began over ten years ago, with Gov. Schwarzenegger, who pivoted left after failing to reform public employee unions in 2005. Schwarzenegger promoted and then signed, AB 32, in 2006. This so-called “Global Warming Solutions Act” set the initial targets for greenhouse gas reduction, empowering the California Air Resources Board to monitor and enforce compliance with laws and regulations aimed at achieving these reductions.

California has been agitating to become the first state to ban natural gas heaters, water heaters, and furnaces by 2030, a policy of the California Air Resources Board, entirely made up of appointees by the governor.

For now, California cities seeking to ban the use of natural gas have been warned by the Ninth Circuit.

As of January, the White House said President Joe Biden does not support a ban on gas stoves. This is probably a good move given that the White House kitchen is outfitted with a commercial natural gas stove.

Read the Courthouse News article, which links to all previous reporting on the case.