Berkeley became the first city in the nation to pass an outright ban on natural gas-powered stoves and other appliances in 2019, in an effort to combat climate change, and the local ordinance took effect in early 2020. But since then, the U.S. Court of Appeals for the Ninth Circuit has thwarted the city, ruling that only the federal government has jurisdiction to enact such bans.
On Tuesday, the Ninth Circuit issued a ruling denying an "en banc" rehearing of a case that was decided by a three-judge panel of the court last April. In that ruling, three Republican-appointed judges said that Berkeley could not regulate "the quantity of energy" being used by businesses or residences, and that such laws are the exclusive purview of the federal government.
The denial of the en banc hearing came from a majority of the Ninth Circuit's 29 sitting judges, the non-recused ones at least, but eight judges — all Democrat appointees — took the unusual step of dissenting, as Bloomberg reports, showing a significant disagreement within the court on this issue.
Judge Michelle Friedland, a former San Francisco-based lawyer who was appointed to the court by President Obama a decade ago, led the dissent, writing, "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."
Friedland added, "Our system of federalism requires much more respect for state and local autonomy."
Friedland and seven of her colleagues contend that the original three-judge panel had misapplied a federal statute, the 1975 Energy Policy and Conservation Act, that allowed federal officials to set energy-efficiency standards for things like stoves and furnaces. The Berkeley ordinance, Friedland argues, regulates local health and safety, and the city is within its rights to do so — and, the dissent argues, the federal statute creates uniform standards for appliances but "does not create a consumer right to use any covered appliance."
The case was originally brought by the California Restaurant Association, a restaurant industry trade group, raising the objections of chefs and restaurateurs who continue to prefer the the use of gas-powered ranges in professional kitchens. Berkeley's ban would have impacted any new restaurant space built in the city, like those that are built into the ground floors of newly constructed residential buildings, forcing them to use only electric appliances.
And, naturally, because it's a Berkeley nanny-state type ordinance, it has been cause celebre for Fox News and others, who are today celebrating the Ninth Circuit victory.
As the Chronicle reports, a lawyer for the California Restaurant Association, Sarah Jorgensen, celebrated that the Ninth Circuit had recognized that "energy policy was a matter of national concern and that there should be uniform national regulation."
But a lawyer for the City of Berkeley, Sean Donahue, said the city was "well within its authority to protect the health and safety of its own residents," and this case could still be appealed to the Supreme Court.
The Ninth Circuit decision, if it stands, could potentially impact other ordinances in Los Angeles, and the ban on gas-powered water heaters and furnaces that was enacted last year by the Bay Area Air Quality Management District. Under that ban, as gas appliances reach the end of their life, they must be replaced by electric versions — though it does not apply to gas stoves, and the timeline for the phase-out extends over the next several years. San Francisco supervisors have also stopped short of banning gas stoves in new construction, though the issue has been debated several times.
Photo: Ilse Driessen