Falstart of gas stove ban in US

Reason for and extent of the ban

The ban on the installation of gas installations in new buildings was introduced after a lengthy campaign by environmental activists. It was intended to lead to a reduction in greenhouse gas emissions. Representatives of the Earthjustice organization declared that: With the growing climate crisis and deteriorating air quality [...] it is crucial that cities and states maintain legal pathways to protect public health. Such a solution was to include a resolution from the Berkeley City Council.

The estimates presented were to show that more than 2.6 million tons of methane are expected to enter the atmosphere through gas leaks from gas stoves and other installations in the state of California.

The Berkeley City Council's 2019 resolution was the first of its kind in the US - it was followed by similar regulations adopted by San Francisco (2020) and New York City (2021), among others. In the spring of 2023, New York State, too, adopted a solution under which only electric kitchens and heating will be allowed in new buildings up to seven stories from 2026 and in taller ones from 2029. Berkeley did not adopt a transition period - the resolution, which directly affects the quality of life of the city's residents, took effect the year it was introduced.

Controversy

The Energy Policy and Conservation Act ("EPCA") explicitly excludes state and local regulations on the energy consumption of many natural gas appliances, including those used in home and restaurant kitchens. Instead of directly banning these appliances in new buildings, the City of Berkeley took a more circuitous route to the same result. It enacted a building code that prohibits natural gas to these buildings, rendering gas appliances useless. The California Restaurant Association ("CRA"), whose members include restaurateurs and chefs, challenged the City of Berkeley's resolution, filing a claim based on a conflict with the EPCA law.

CRA pointed out in its lawsuit that the resolution violates federal law. Only the US federal government can set standards for the energy efficiency of appliances and buildings, including those that run on natural gas. Jot Condie, President of CRA stated: Cities and states do not have the authority to regulate the energy use and efficiency of appliances that home and business owners choose. Energy and environmental policy is a national issue with national security implications.

The members of the Association were also concerned that the law will be developed and in the future not only new developments, but also existing buildings will be forced to look for alternative energy sources - particularly for food preparation purposes. In addition, they argued that without access to natural gas-powered equipment, they will not be able to prepare some of their meals, which will significantly reduce the quality of their food service.

The new law was introduced without prior debate with residents and business owners in the city of Berkeley. Such a resolution posed a challenge to the community, which was faced with a fait accompli and was de facto forced to adapt to new realities overnight.

Summary

The court found that the California Restaurant Association had a cause of action because it showed that:

1. at least one of its members suffered actual damage that was concrete and specified and actual or imminent;
2. the indicated damage was actually related to the challenged action;
3. was likely that the harm suffered would be remedied by a favorable decision.

Specifically, the association determined that the resolution would directly harm its members because its members would have opened or relocated a restaurant in Berkeley if the city had not banned gas installations. The panel found that the EPCA law overrides and conflicts with Berkeley's resolution.

Ultimately, the San Francisco Court of Appeals overturned the Berkeley City Council's resolution. The ruling may be followed by more lawsuits in other cities that followed Berkeley's example in introducing similar measures. The court ruled unequivocally that local governments can only introduce measures that do not interfere with technical requirements introduced at the federal level - and tightening energy efficiency regulations at the local level is such a measure.

As the legal practice there forges ahead across the Atlantic in terms of the power of local governments to set local guidelines for heating equipment, Germany has gone the other way - a recently passed heating law shifts the responsibility to local governments to adopt local heating plans, which are to specify acceptable heating solutions and deadlines for phasing out fossil fuels. The coming years will show which approach will spread more widely - the American or the German.

Graphic source: Tingey Injury Law Firm

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