In an important legal victory for NAHB and California builders and developers, the U.S. Court of Appeals for the Ninth Circuit has ruled that the city of Berkeley’s ban on the installation of natural gas piping in new buildings is preempted by the Energy Policy and Conservation Act (EPCA). NAHB filed amicus briefs arguing against the ban at both the District Court and the Ninth Circuit in this case.
In 2019, the city of Berkeley adopted an ordinance that prohibited fuel gas piping from being installed from the gas meter to any area within a new building. The California Restaurant Association (the Association) quickly filed a lawsuit claiming that both EPCA and state law preempted the Berkeley ordinance.
Reading the EPCA preemption in a limited manner, the District Court for the Northern District of California dismissed the suit because the ordinance does not facially regulate any type of appliance and its impact is indirect. The Association appealed.
The Association argued that the EPCA preemption extends to regulations that effectively ban covered products from using available energy sources. The Ninth Circuit agreed and held that Berkeley’s regulation is preempted “because it prohibits the installation of necessary gas infrastructure on premises where covered natural gas appliances are used.” Simply put “Congress ensured that States and localities could not prevent consumers from using covered products in their homes, kitchens and businesses.”
Unfortunately, the court did leave Berkeley with another option to stop the use of natural gas. It explained that its decision only prohibits Berkeley from banning new building owners from extending gas lines within their buildings. However, the court noted that the case does not “touch on whether the City has any obligation to maintain or expand the availability of a utility’s delivery to gas meters.”