A federal appeals court has declined to reconsider its controversial April 2023 decision that mutes Los Altos’ and other cities’ attempts to require natural gas bans in new construction.
The Ninth U.S. Circuit Court of Appeals’ Jan. 2 denial to rehear its ruling in the pivotal California Restaurant Association v. City of Berkeley case means cities like Los Altos cannot adopt reach codes that outright prohibit use of natural gas in new construction or extensive remodels – something the city tried to do when the city council approved a new reach codes ordinance last year, just prior to the April 17 Berkeley ruling. The city suspended the ordinance as a result.
The ruling was cheered by restaurant owners and homeowners who prefer gas for cooking or heating. It was slammed by environmental advocates who note natural gas remains a big contributor to greenhouse gas emissions – the reduction of which remains a major goal in Los Altos’ own Climate Action and Adaptation Plan.
A Town Crier query to City Attorney Jolie Houston resulted in a city statement that suggested Los Altos would not be challenging the ruling on its own.
“As a result of the Berkeley case, the city can only encourage and educate on the benefits as well as importance of electrifying new and existing buildings within Los Altos.”
Berkeley’s ordinance, banning natural gas piping in new construction, was upheld by the courts until last year’s reversal by the Ninth Circuit. The court has ruled that the federal Energy Policy and Conservation Act “preempts” Berkeley’s ordinance.
According to court documents, “The Energy Policy and Conservation Act expressly preempts state and local regulations concerning the energy use of many natural gas appliances, including those used in household and restaurant kitchens. Instead of directly banning those appliances in new buildings, Berkeley took a more circuitous route to the same result. It enacted a building code that prohibits natural gas piping in those buildings from the point of delivery at a gas meter, rendering the gas appliances useless.”
For some, the ruling is not only good news for those cooking with gas, it’s a relief for those dealing with new construction.
“Most homeowners and prospective homeowners prefer cooking with gas cooktops verses electricity or induction,” noted local realtor Nick French. “Anyone who has ever gone through a project with PG&E knows how painful it is to upgrade electrical.”
French said the current infrastructure isn’t ready.
“I had multiple clients this year want to upgrade their electrical panel in Los Altos to 200 amps, which is common for an all-electric house including car charger, pool heater and air conditioning, but the PG&E infrastructure simply cannot support this,” French said. “The physical wire from the pole to the house couldn’t support it and would require an extremely expensive project through PG&E by trenching, laying a new conduit and running a new line from the pole before even able to upgrade. Ultimately, until the PG&E infrastructure is upgraded, we simply aren’t ready for a total ban on gas usage.”
Noted Connie Miller, a board member of GreenTown Los Altos: “Many cities are getting around the Berkeley ruling, striking down the ‘heat source’ mandate, by changing their codes to a metric solely of emissions standards. By default, most heat pumps will pass a standard that measures a certain level of pollutants whereas gas furnaces will not pass the same test. It will be up to the City of Los Altos to decide if that is a direction they want to go. The gas industry has won the Berkeley ruling if not appealed further, but decarbonizing our buildings is just too important to give up on just because of what happened in Berkeley.”
Los Altos Councilmember Neysa Fligor said the Berkeley decision is “very disappointing,” but she’s not ready to give up on all-electrification mandates.
“Although the Berkeley case now limits how a local government can require electrification, my understanding is there are other legal avenues including exceptions to the U.S. Energy Policy and Conservation Act, which is the regulation that the court found preempted the Berkeley ordinance,” Fligor said in a statement. “I would hope that our city council would direct staff to work with experts in this field to explore these other avenues as opposed to buying into this notion that the only thing we can do now is educate and encourage electrification.
“Until we have done that exploration, I think it’s premature for us to reach that conclusion.”
Approximately 100 cities across the state, including Los Altos, had 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.
