The U.S. Court of Appeals of the Ninth Circuit has struck down a City of Berkeley, California regulation that prohibits the installation of natural gas piping within newly constructed buildings. The decision in California Restaurant Assn. v. City of Berkeley held that the federal Energy Policy and Conservation Act preempts enforcement of the city regulation. This development has ramifications for government efforts to ban fossil fuel appliances and restrict consumer choice elsewhere in the nation.

The three-judge panel ruled that the Act expressly preempts State and local regulations concerning the energy use of many natural gas appliances, including those used in household and restaurant kitchens. Instead of directly banning those appliances in new buildings, the City of Berkeley tried to evade preemption by enacting a building code that prohibits natural gas piping into those buildings, rendering the gas appliances useless. 

The panel held that, by its plain text and structure, the Act’s preemption provision encompasses building codes that regulate natural gas use by covered products. By preventing such appliances from using natural gas, the Berkeley building code did exactly that. The panel reversed a district court decision dismissing the court case and remanded the case back to that court for further proceedings.

This decision has significant repercussions for State and local governments attempting to ban or limit the use of appliances powered by natural gas, liquid heating fuels, and propane. The Act provides that State or local energy conservation standards relating to electricity, water or fossil fuel use must be the same as applicable federal standards.

Sean Cota, President of the National Energy & Fuels Institute, applauded the decision. "This ruling restores some sanity in the race to ban non-electric appliances and equipment. This is particularly important now, as the current political trend is to ban any combustion, whether that combustion is 100% renewable or not. We need a mixture of reliable and storable energy sources to power our businesses, heat our homes, and support our economy. The average home with heating fuels stores over 10 Megawatts of energy at no additional cost. Policymakers at all levels of government must follow federal law so there is a uniform national policy that preserves energy reliability and consumer choice."