Bold Berkeley Climate Leadership Shifts Paradigm in New and Existing Building Emissions, Health, and Safety Despite Gas Industry’s Pyrrhic Court Battle

The fossil fuel industry—led by natural gas, may have won a pyrrhic battle in court, but according to their own words, they are rapidly losing their business model to the electrification and building decarbonization movements. At a critical time in the history of the climate movement with unsustainable inaction at state and federal levels, Berkeley’s leadership in 2019 shifted what was possible and prevented untold metric tons of greenhouse gasses and protected the health and safety of millions.

On Tuesday the City received the disappointing news that a majority the U.S. Court of Appeals for the Ninth Circuit declined to grant Berkeley’s petition for rehearing. This was despite a rather unprecedented eleven circuit judges publicly indicating that Berkeley’s groundbreaking ordinance prohibiting natural gas in new buildings should not preempted by a decades-old federal statute governing energy appliance efficiency manufacturing standards. The Council still has the option to submit an appeal to the Supreme Court, otherwise the misguided three-judge panel opinion invalidating the ordinance will stand until such time that it is rightly overturned.

Regardless of the ultimate legal outcome, I want to reflect on the historic success of my legislation as part of the broader movement to mitigate climate emissions, and which has now been on the books for nearly five years, propelling a national movement to phase out dangerous, toxic, and climate polluting gas from both new and existing buildings:

  • Since 2019 some 76 Californian cities and counties and beyond have joined Berkeley in passing building codes aimed at phasing out or disincentivizing natural gas in new construction. Thousands of new residential units have been permitted in Berkeley as all-electric. All-electric is now the modus operandi of Berkeley and Bay Area building designers and developers.
  • Both the California Air Resources Board (CARB) and the Bay Area Air Quality Management District (BAAQMD) followed Berkeley’s leadership in adopting rules that will phase out gas appliances in new buildings this decade statewide. The latter agency banned the sale of new gas water heaters for new/existing homes (2027), gas furnaces (2029), and large gas water heaters in apartments and commercial building (2031). Looking back, it is unthinkable that these agencies could have taken such action without the political will generated by Berkeley and scores more. These laws mean that Berkeley’s status quo of all-electric construction will likely persist despite the Court’s action.
  • Berkeley’s ordinance spurred the California Energy Commission to double down on providing all-electric pathways and modelling software for designers of new buildings statewide, helped build will for new stringent statewide energy efficiency standards that incentivize clean electricity.
  • Berkeley’s leadership is reflected in the 2022 Inflation Reduction Act authored by Congress and the Biden Administration, with its deep emphasis on electrification funded to the tune of billions of dollars in subsidies for heat pumps, induction stoves, panel and other electric upgrades. This legislation will help millions of Americans move off gas over the coming decade.
  • Berkeley’s leadership helped spur and boost countless scientific studies into the toxic and dangerous nature of natural gas in terms of human health.

With respect to the legal aspect of the Ninth Circuit Court’s decision, I am ultimately bound to the Constitution and applicable judicial decisions, but I reserve deep misgivings about the legal theory and hope it will ultimately be overturned by future decisions or congressional legislation.

I am profoundly heartened by the bold and rather unprecedented dissenting opinion (page 50) of the Honorable Ninth Circuit Judge Michelle T. Friedland, whose chambers are located in neighboring San Jose (a city that followed Berkeley in prohibiting new gas infrastructure), and who was born in Berkeley. In her dissent, she was joined by ten colleagues on the Circuit in outlining the terrible legal “mistakes,” “misinterpret[ation]s,” and “erroneous[]” nature of the three-judge panel to serve as a warning for other courts and potentially the Supreme Court. Specifically, she wrote that:

“[i]n nearly a decade on the bench, I have never previously written or joined a dissent from a denial of rehearing en banc. I feel compelled to do so now to urge any future court that interprets the Energy Policy and Conservation Act not to repeat the panel opinion’s mistakes. The opinion misinterprets the statute’s key terms to have colloquial meanings instead of the technical meanings required by established canons of statutory interpretation. It thereby erroneously holds that Berkeley’s ordinance is preempted.

Those errors of statutory interpretation have important consequences. The panel opinion needlessly blocks Berkeley’s effort to combat climate change, along with the equivalent laws passed by other local governments. Our system of federalism requires much more respect for state and local autonomy.”

It appears that three-judge panel did not once mention the word “climate” in their opinion. In contrast, the Honorable Friedland et al.’s dissent directly cites the intent of Berkeley’s ordinance: mitigating the existential climate crisis facing us all by using constitutionally-protected federalist powers that allow local governments to try out new solutions:

“Climate change is one of the most pressing problems facing society today, and we should not stifle local government attempts at solutions based on a clear misinterpretation of an inapplicable statute…Berkeley adopted its ordinance to address an urgent problem of the highest importance. The panel opinion unnecessarily strikes down the ordinance by entirely misinterpreting a narrow preemption provision about appliance standards. I hope other courts will not repeat the panel opinion’s mistakes. I respectfully dissent from the denial of rehearing en banc.”

I remain confident that one way or another this interpretation will be overturned, and Berkeley and dozens more will prevail. In the meantime, the City has various legislative tools both locally, regionally and statewide at its disposal to accomplish its goal of reducing greenhouse gas emissions both in new and existing buildings. If anything, this experience has proven the wisdom of acting swiftly, boldly and decisively in response to the climate emergency.  

I will continue to do everything in my power to address climate change and protect the health and safety of residents and am deeply grateful and proud of the leadership of the climate movement, our residents, our City staff and City Attorney, and my office for helping Berkeley make history.