Falstart ban on gas cookers in the US
3.10.2023
On April 17, 2023, the US media announced that the Federal Court of Appeals in San Francisco (California) had overturned a resolution of the Berkeley City Council to ban gas installations in new buildings. It was the first ban in the United States on the use of gas in new residential and commercial buildings. The introduction of such a restrictive law in 2020 was an event not only on a national scale, but also globally.
The reason for the introduction and the scope of the ban
The ban on installing gas installations in new buildings was introduced after a long-running campaign by environmental activists. It was intended to reduce greenhouse gas emissions. Earthjustice officials said: With the climate crisis growing and air quality deteriorating [...] it is crucial that cities and states maintain legal pathways to protect public health. Such a solution was to be, among others, a resolution of the City Council of Berkeley.
Estimates 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 resolution of 2019 was the first of its kind in the United States - it was followed by similar regulations adopted by, among others, San Francisco (2020) and New York City (2021). In the spring of 2023, New York State also adopted a solution under which new buildings up to 7 floors from 2026 and higher from 2029 will be able to install only electric kitchens and heating. In Berkeley, a transitional period was not adopted - a resolution that directly affects the quality of life of the inhabitants of the city began to take effect in the year of its introduction.
Controversy
The Energy Policy and Environmental Protection Act (“EPCA”) expressly excludes state and local regulations regarding the energy use of many natural gas appliances, including those used in home and restaurant kitchens. Instead of directly banning these devices in new buildings, the city of Berkeley took a more circular route to the same result. A building code has been passed that prohibits the supply of natural gas to these buildings, rendering gas equipment useless. The California Association of Restaurateurs (“CRA”), whose members include restaurateurs and chefs, challenged the resolution of the City of Berkeley, filing a claim based on its conflict with the EPCA Act.
The CRA in its lawsuit pointed out 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 are powered by natural gas. Jot Condie, President of CRA stated: Cities and states do not have the power to regulate the use of energy and the efficiency of appliances that homeowners and business owners have chosen. Energy and environmental policy is a matter of national scope and implications for national security.
Members of the Association also feared that the law would be developed and in the future not only new investments, but also existing buildings would be forced to look for alternative energy sources - in particular for the purpose of preparing meals. In addition, they argued that without access to appliances powered by natural gas, they will not be able to prepare part of the dishes, which will significantly impair the quality of the catering services they provide.
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 local community, which was put before the fact made and was de facto forced to adapt to new realities day by day.
summary
The court held that the California Association of Restaurateurs had grounds to bring the suit because it showed that:
- at least one of its members suffered actual damage, which was specific and specific and actual or imminent;
- the damage indicated was actually related to the contested action;
- it was likely that the damage 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 moved a restaurant in Berkeley if the city had not introduced a ban on gas installations. The panel found the EPCA Act to be overriding and inconsistent with the Berkeley resolution.
Ultimately, the San Francisco Court of Appeals overturned the Berkeley City Council's resolution. In the wake of the ruling, there may be more lawsuits in other cities that, following the example of Berkeley, have introduced similar solutions. The court ruled unequivocally that local governments can only introduce actions that do not conflict with the technical requirements introduced at the federal level - and the tightening at the local level of energy efficiency regulations is such an action.
As legal practice unfolds across the Atlantic over the powers of local governments to set local guidelines for heating equipment, Germany has gone the other way — the newly passed heating law transfers the obligation to local governments to enact local heating plans that are supposed to set acceptable heating solutions and fossil fuel phase-out dates. The coming years will show which approach will become more widespread - American or German.
Image credit: Tingey Injury Law Firm
