Gas bans falter in US West after court decision

The movement to restrict natural gas use in new buildings faltered in the Western US after a court decision earlier this year, but another court recently protected building electrification requirements.

A legal defeat three months ago for a pioneering gas ban in Berkeley, Calif., prompted local and state officials to repeal or delay restrictions on gas use in new buildings. Lawmakers in Eugene, Ore., repealed the state's first gas ban. Washington state delayed implementation of its nation-leading electric heating requirements. And cities throughout Southern California rescinded or shelved Berkeley-style ordinances.

These developments stemmed from an April 17 opinion by a three-judge panel for the US Court of Appeals for the 9th Circuit. The panel found that Berkeley's 2019 ordinance prohibiting gas piping in new construction conflicted with the federal Energy Policy and Conservation Act, which regulates the energy efficiency and use of consumer products. In the panel's opinion, an Energy Policy and Conservation Act provision preempting local and state regulation of covered products invalidated the Berkeley ban.

Berkeley has petitioned for rehearing of the panel's opinion, but some communities within the 9th Circuit's footprint have already pulled back their policies. The retrenchment has left officials seeking new ways to reduce greenhouse gas emissions and boost energy efficiency in the building sector.

"We do have an obligation to stem the flow of fossil fuels in our community," Eugene Mayor Lucy Vinis said during a July 10 city council meeting. "But I also believe when you're faced with a brick wall — and this legal challenge faces us with a brick wall — you have to find other pathways to do the work."

Another legal decision produced a different outcome in Washington state. A US District Court judge denied a request by gas utilities, homebuilders and other stakeholders to prevent electric space and water heating requirements in new construction from going into effect.

The plaintiffs had sought a preliminary injunction in June, saying the impending implementation was harming their businesses. Lawyers for the Washington State Building Code Council argued that judicial intervention was premature, given that the council had delayed implementation of the electrification requirements.

A court transcript was not immediately available for the July 18 hearing. But according to Earthjustice, which is representing environmental groups in the case, Chief Judge Stanley Bastian found that the plaintiffs' claims were "purely speculative," and he expressed concern about creating a "chilling effect" on other states and communities.

In a related development, a senior US Energy Department official used a congressional hearing to dispute an industry claim that the agency's proposed energy efficiency standard for consumer cooking equipment would remove virtually all natural gas cooking tops from the market.

The DOE has estimated that half of the gas ranges and cooktops currently sold in the US could meet the standard without modification. Industry groups have said DOE's own analysis shows that just 4% of existing gas cooking tops would meet the standard, which would require equipment to consume no more than 1,204,000 Btu of gas per year.

The industry assertion has gained traction on Capitol Hill at a time when Republican lawmakers and Sen. Joe Manchin (D-W.Va.) have alleged that the Biden administration's drive to improve energy efficiency constitutes a war on gas appliances. Manchin, the chair of the Senate Energy and Commerce Committee, cited the claim during a February hearing.

The claim also featured in Republicans' questions to DOE Under Secretary for Science and Innovation Geraldine Richmond during a July 18 hearing of the House Subcommittee on Economic Growth, Energy Policy and Regulatory Affairs. A DOE spokesperson told E&E News in February that the claim is "misleading and misinterpreting data," and at the hearing, Richmond explained to lawmakers why this is the case.

"The Department of Energy is not proposing any ban on gas stoves," Richmond said. "DOE is committed to consumer choice. The department does not have the authority to ban gas stoves."

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