Statement: Ninth Circuit Decision in CRA v. City of Berkeley re: Ordinance Prohibiting Natural Gas In New Buildings

In a time when the habitability of the planet hangs in the balance, I’m disappointed that a panel of the Ninth Circuit endorsed such a radical theory.  I intend to ask our City Attorney to continue fighting this case, including asking for a rehearing en banc before a larger panel of Ninth Circuit judges.

The rights of millions of Americans to protect their health and insure a habitable climate future hang in the balance.

In my personal opinion, there are many flaws in the decision. But above all the theory from the panel boils down to the idea that a federal law merely regulating the efficiency of home appliances somehow allows the fossil fuel industry a perpetual right to access gas in new buildings. One of the circuit court judges acknowledged that the grounds for their decision are extremely shaky and would greatly benefit from Supreme Court clarification. The judge writing the primary opinion (Hon. Patrick J. Bumatay), as if to acknowledge the farce of this theory, admitted there is nothing stopping cities from banning the expansion of new gas piping before the meter in the street rather than in the building.

Federal law says nothing about limiting the overall rights of cities to regulate the fuel types that power our cities. A law/federal regulation from the 1970s that regulates the efficiency of electric and natural gas appliances is being weaponized to strip local and state governments of their rights to protect the health and safety of our residents. Ensuring those protections are one of our highest callings as local officials. The court is conflating Congress’ intention to regulate the efficiency of your water heater with an all-encompassing theory that cities must permit new buildings with gas piping in perpetuity.

On paper, the lawsuit may have been submitted by the national restaurant industry, but we know that behind those parties is the American Gas Association, which is heavily invested in the case. Curiously, the restaurant industry couldn’t even articulate which business was theoretically harmed by our law. We know that many of the world’s leading restaurants from fast food to Michelin-starred are doing just fine with all-electric.

Legal theories aside, we also know what this is really about: the idea that business profits trump local and state government’s right to protect their community’s right to health and a habitable climate.

In the meantime, the California Air Resources Board has moved to ban new and existing gas furnaces and water heaters by 2030, the Bay Area Air Quality Management is set to ban new and existing gas appliances as early as 2027, the state has provided for reach codes that require gas appliances to prove they are more efficient than electric appliances, and buildings across the state and the country are built all electric for economic reasons. More than 70 communities in California, including San Francisco, Los Angeles and San Jose, and many cities beyond—Seattle and New York City to name a couple—have decided that gas runs counter to public health and climate protection. This decision, if left uncontested, is yet another assault on our communities, working communities, and future generations.

Just like the movement for same-sex marriage, which faced legal hurdles, only to be finally enshrined by the California Supreme Court and eventually the U.S. Supreme Court, this is a movement that cannot be stopped.