Now, back to the Ninth Circuit. The court’s January 2 decision not to entertain a rehearing of the Berkeley case confirms that the gas bans enacted in California over the past several years are invalid. According to the Sierra Club, which has been gleefully tracking the bans, some 76 cities or counties in the state have enacted bans or restrictions on gas since Berkeley enacted its ban in 2019. On a website that tracks the restrictions, the Sierra Club makes no mention of the Ninth Circuit’s rulings. The group may want to ignore it, but the decision affects all of the states in the Ninth Circuit: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. That means the recent bans on gas in Seattle and the statewide ban in Washington, which was adopted last year, are invalid. So, too, is the ban imposed by Eugene, Oregon, in early 2023.

The San Francisco Chronicle summarized the appeal, noting that “Berkeley, joined by the Biden administration, other cities and states, and conservation groups, then asked the full appeals court, which has 16 Democratic appointees among its 29 judges, to order a rehearing. But only 11 judges, all appointed by Democratic presidents, voted for a new hearing…the ruling will now become final unless the conservative-majority Supreme Court agrees to review it.” The article quoted Sarah Jorgensen, a lawyer for the California Restaurant Association, who said the court recognized that “energy policy was a matter of national concern and that there should be uniform national regulation.”

Berkeley’s gas ban was first ruled illegal last April, when the Ninth Circuit ruled in favor of the restaurant association. The January 2 decision affirmed the court’s prior ruling and noted that Congress, when it passed the Energy Policy and Conservation Act (EPCA) of 1975, “ensured that states and localities could not prevent consumers from using covered products in their homes, kitchens, and business. EPCA thus preempts Berkeley’s building code, which prohibits natural gas piping in new construction buildings from the point of delivery at the gas meter.”

As I explained in these pages shortly after the April ruling in “The Ninth Circuit Spikes Berkeley’s Gas Ban,” the three judges assigned to the case found that EPCA:

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, Berkeley took a more circuitous route to the same result and enacted a building code that prohibits natural gas piping into those buildings, rendering the gas appliances useless….By its plain text and structure, EPCA’s preemption provision encompasses building codes that regulate natural gas use by covered products. And by preventing such appliances from using natural gas, the new Berkeley building code does exactly that.” (Emphasis in original.)

A January 3 article published by Oakland-based KTVU, quoted Berkeley City Council member Kate Harrison, who authored the gas-ban ordinance, saying her city “will continue to do everything in its power to fight climate change and protect the health of its residents.”

The Ninth Circuit’s latest decision should also mean that bans on natural gas in other parts of the country should also be nullified. But the Ninth Circuit only covers part of the country. That means its decisions may set a precedent, but it doesn’t mean the precedent applies to other regions. That could change soon, however, because Jorgenson has filed a similar suit against the state of New York.

Last May, New York became the first state to ban gas stoves and furnaces in most new buildings. The law requires all-electric heating and cooking in new buildings shorter than seven stories by 2026, and for taller buildings by 2029. The city of New York has also passed a ban in the form of Local Law 97, which is even more destructive. That measure requires building owners to remove gas boilers over the next few years or face huge financial penalties. For more on Local Law 97, see the September 26, 2023 edition of the Power Hungry Podcast with my pal, Jane Menton, a lifelong New Yorker, who calls the measure an “electrification monster” that could result in a humanitarian nightmare in Gotham.

On October 12, Jorgenson filed suit on behalf of a group of plaintiffs, including propane dealers, homebuilders, and plumbers. In a press release, Jorgenson’s firm said the “The drastic step of requiring ‘all-electric’ new buildings despite an already-strained electric grid stands at odds with the public’s need for a reliable, resilient, and affordable energy supply. New York’s gas ban is preempted by federal law, is contrary to the public interest, and harms plaintiffs and the members they represent.”

If Jorgenson prevails in New York, and she should, the next stop on the litigation is the U.S. Supreme Court, which should weigh in and declare that the electrify everything effort, is, as Jorgenson says, “contrary to the public interest.”

[…]

Via https://robertbryce.substack.com/p/electrify-everything-slammed-again