Wither Gas Bans?

In January, a trio of judges from the Ninth Circuit Federal Court of Appeals struck down the city of Berkeley’s natural gas hook-up ban.

Now, Berkeley has a ticking clock running on deciding if they will appeal the decision to the United States Supreme Court, a clock runs out in less than a month.

And what Berkeley decides will impact more than 70 other cities in the state that followed their lead in banning gas hook-ups to new construction as they are waiting to see what to do about their own ordinances.

The Berkeley ordinance did not specifically ban gas appliances but barred any gas infrastructure to be built as part of new construction.  In other words, “sure, you can have a gas stove – don’t know what you going to plug it into to make it work but you can own one.”

This circuitous path to banning gas appliances seems to have been intentional on the part of Berkeley and other cities as a way to get around something they cannot do, namely specifically ban gas appliances.  Other cities are even claiming that their ordinances are not a ban on gas hookups, just a mandate that all new construction be all-electric – potato, potahto.

The Ninth Circuit – in ruling on the suit against Berkeley brought by the California Restaurant Association – panel saw through the Berkeley dodge, saying:

“Instead of directly banning those appliances in new buildings, Berkeley took a more circuitous route to the same result and enacted a building code that prohibits natural gas piping into those buildings, rendering the gas appliances useless. 

The panel held that, by its plain text and structure, the Act’s preemption provision encompasses building codes that regulate natural gas use by covered products. By preventing such appliances from using natural gas, the Berkeley building code did exactly that. The panel reversed and remanded for further proceedings.”

The banning of gas and gas appliances has touched a nerve, to say the least, in the public which overwhelmingly opposes such actions.  It is also absurdly hypocritical for the same groups that once said natural gas was the future of clean energy – natural gas is far cleaner than coal or oil – to now demand it be banned like all “fossil fuels.”  

Some cities with similar bans seem to be plowing ahead despite the court ruling  – San Francisco appears to be one as its webpage regarding its ban makes no mention of the court ruling.

But others are being more cautious, even while still being supportive of the concept. Half Moon Bay, for example, has “temporarily suspended” enforcement of its ban pending further potential further legal action, but City Manager Matthew Chidester – in an email to local resident Robert Blumen – still seemed to want to move forward with the concept.

“We’ll continue to encourage applicants to consider eliminating methane gas in new construction and remodels, as we believe this is important in combatting climate change at the local level,” wrote Chidester.

The ordinance, while suspended, does however remain on the books in Half Moon Bay.

San Mateo and Contra Costa Counties have suspended and/or “halted enforcement” of their bans, as has Encinitas.

Del Mar was about to consider a ban when the ruling came down but has now dropped the matter, at least for the time being.

Some cities, like Los Angeles, didn’t even the Berkeley dodge and straight-up banned certain gas appliances. How LA will respond is still as yet unclear.

Los Gatos, however, is looking closely at its ordinance with an eye on the court ruling.

“The town is examining the case to determine how it may impact the town’s ordinance. As appropriate, the town council will consider any required actions,” said Mayor Mary Badame.

While the courts have weighed in on the bans at a city, the ruling has not put a hitch in the gitalong of the never ever done California Air Resources Board and its plan to ban the sale of new gas space and water heaters in 2030.

“There is no regulation limiting gas appliances in California and there is no plan for a ban. CARB expects the Board to consider a potential regulation to reduce emissions from space and water heaters in 2025. The concept for the rule is that new space and water heaters purchased in California would be zero-emission starting in 2030,” said a CARB spokesman.

The spokesman did “helpfully” add the following:  

“Californians would be able to keep their existing appliances, repair them and use them until they break down.  Not only is this part of California’s plan to reduce building emissions to curb climate impacts, but also to generally improve public health as buildings emit about 66 tons per day of NOx to the ambient air, about four times the emissions from electric utilities and nearly two-thirds of the emissions from light-duty vehicles statewide.”

Thank you CARB for letting us use our own stuff until it breaks down.  Mighty generous of you.

You can check to see if your city has/had a ban here (FYI – the site’s a bit difficult to navigate):  https://buildingdecarb.org/zeb-ordinances