The California Restaurant Association (CRA) said the Berkeley city government has agreed to repeal its ban on natural gas infrastructure in new buildings to settle a lawsuit filed by the group.
The CRA had in April 2023 won before the United States Court of Appeals for the Ninth Circuit after initially losing in the District Court for the Northern District of California. The case has been remanded to the District Court but the parties now reached a settlement, the association said in a news release.
The city council is taking steps to withdraw the prohibition on gas piping as part of the settlement, the CRA said.
“Because the City’s process for passing legislation takes several months, the parties have agreed to put the case on hold to allow the City time to take the necessary action, at which point the case will be dismissed”, the announcement stated. “But starting immediately, in compliance with the Ninth Circuit decision, Berkeley will no longer enforce its gas ban”.
Some five years ago, Berkeley adopted an ordinance banning natural gas infrastructure in new buildings, becoming the first city in the U.S. to ban natural gas from buildings. The ban applies to projects with land use permit applications submitted after January 1, 2020, with limited exceptions. In the case of an exception, the exempted building is nonetheless required to have installations that facilitate future electrification.
“Scientific evidence has established that natural gas combustion, procurement and transportation produce significant greenhouse gas emissions that contribute to global warming and climate change”, states Ordinance 7672-NS.
“Substitute electric heating and cooling infrastructure in new buildings fueled by less greenhouse gas intensive electricity is linked to significantly lower greenhouse gas emissions and is cost competitive because of the cost savings associated with all-electric designs that avoid new gas infrastructure”, it adds.
“The most cost-effective time to integrate electrical infrastructure is in the design phase of a building project because building systems and spaces can be designed to optimize the performance of electrical systems and the project can take full advantage of avoided costs and space requirements from the elimination of natural gas piping and venting for combustion air safety”.
The CRA in response sued the council before the District Court on November 21, 2019. “[T]he ordinance violates long-established state and federal law, but more importantly, the City’s decision will negatively impact restaurants and other energy users – and those impacts are likely to spread beyond the four walls of newly constructed buildings, the structures where it bans natural gas infrastructure”, the CRA said in a press release at the time.
“Berkeley’s rush to become the first electrified city in the state was a drastic step that will have a long list of negative impacts: restaurants and residents in newly-built structures will not have the ability to use gas stoves or heat their homes or businesses using natural gas”.
The CRA lost that case “on the grounds that federal law concerning the energy use of natural gas appliances does not cover local regulation of natural gas infrastructure”, the association said in a media release July 7, 2021.
It filed an appeal and won before the Ninth Circuit, in a decision April 17, 2023. “The City of Berkeley cannot bypass federal preemption by banning the pipes instead of natural gas products themselves, according to the panel”, the CRA said at the time.
Now, announcing the settlement, the CRA said, “The settlement agreement was crafted in response to the April 2023 Ninth Circuit unanimous ruling that Berkeley’s ban on natural gas in buildings violates federal law, specifically the Energy Policy and Conservation Act”.
“The Ninth Circuit denied a petition for rehearing and issued a modified opinion on January 2, 2024, affirming that Berkeley’s ban (Ordinance No. 7,672-N.S., codified in Chapter 12.80 of the Berkeley Municipal Code) is preempted by federal law”, it added in the announcement on its website.
The American Gas Association (AGA) welcomed the settlement. “This settlement has implications far beyond the City of Berkeley and is a significant step towards safeguarding energy choice for California consumers and helping our nation continue on a path to achieving our energy and environmental goals”, AGA president and chief executive Karen Harbert said in a statement.
“Natural gas has been one of the primary drivers for achieving environmental progress, and any ban on this foundation fuel will saddle consumers with significant costs for little environmental gain”.
Since the 2019 move by Berkeley, there are now 135 local governments with policies that address building-specific fuel types and related emissions, according to the Building Decarbonization Coalition.
However the coalition says on its website that in the aftermath of the April 2023 ruling in favor of the CRA, some cities have suspended the enforcement of related ordinances.