A federal appeals court ruling has thrown Los Altos’ recently approved natural gas restrictions into question.
A Ninth Circuit Court of Appeals decision April 17 rejected the city of Berkeley’s bid to ban installation of natural gas piping in new construction because federal law regulates gas use through the Energy Policy and Conservation Act and “preempts” Berkeley’s ordinance.
“The Act expressly preempts state and local regulations concerning the energy use of many natural gas appliances, including those used in household and restaurant kitchens,” according to the three-judge panel’s decision in favor of plaintiffs, the California Restaurant Association. “The (appeals court) 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 ruling could neutralize Los Altos’ restrictions on natural gas appliances and infrastructure in new construction and major remodels, outlined in its updated reach codes.The city council approved the first reading of an ordinance April 11 in homes whose renovation projects surpass $250,000 in valuation or exceed 50% of the housing structure.
The ordinance was due for a second reading and adoption at Tuesday’s council meeting, held after the Town Crier’s print deadline.
The local advocacy group Los Altos Residents sees the court’s ruling as good news. Members have been generally opposed to reach codes banning gas, citing government overreach and the burdensome expense on residents.
“It looks like Los Altos and other cities in California are going to suffer a setback in their attempts to ban gas appliances and gas hookups,” Los Altos Residents member Freddie Wheeler said.
Assessing the impact
Other observers think it’s too early to tell.
“This ruling may result in appeals, stays and other legal actions,” Los Altos City Attorney Jolie Houston said in a statement. “Unlike most cities within Silicon Valley Clean Energy Authority’s jurisdiction (including Los Altos), the city of Berkeley had a municipal regulatory ordinance that was adopted pursuant to police powers – not pursuant to the state’s building codes. At this time, the ruling is new, interpretations are evolving, and it is too soon to make any conclusions about how this decision will and will not impact traditional building reach codes concerning the regulation of natural gas.”
As the situation evolves, next steps are under consideration.
“This lawsuit has been ongoing for several years, and this was the first time the courts ruled against Berkeley on the case’s central question of preemption,” said Michaela Pippin of Silicon Valley Clean Energy, a nonprofit clean energy supplier to 13 local communities.
“SVCE will continue to pull together information to understand the impacts of this ruling on local reach codes, learn what Berkeley’s next steps are likely to be, and help our member agencies assess their options,” Pippin said.
Approximately 100 cities across the state, including Los Altos, have enacted bans on natural gas in new construction, some through reach codes – regulations that “reach” beyond state energy guidelines. The codes are intended to fight climate change and improve public safety. Methane from natural gas is considered a major polluter, and its presence indoors is linked to adverse health impacts. Opponents of the codes point to problems with all-electric households, including the lack of energy options during power outages.
