The Ninth Circuit Shoots Down New Build Natural Gas Prohibition

By Maxwell C. Radley, Esq.

The use of natural gas in new buildings has been a hot conversation topic in state and local government’s budget discussions. In California Restaurant Assoc. v. City of Berkley,[1] the Ninth Circuit held that restrictions on natural gas use are preempted by federal law.  This case arises out of a tale as old as time--the City of Berkley, California passed a law.  In short, the law prohibited the installation of natural gas piping in newly constructed buildings. 

In its decision, the Ninth Circuit found that the local law was preempted by the Energy Policy and Conservation Act.  In sum, the EPCA preempts state and local governments from enacting a law that restricts the amount of natural gas directly consumed by consumer appliances at where those products are used, unless an exception is met.[2]  Simply put, the Ninth Circuit held that a law or regulation that eliminates the use of an energy source is preempted by EPCA.  Expanding on this, the Ninth Circuit states that ECPA applies to laws that relate to natural gas products.  Lastly, the court opined that “EPCA would no doubt preempt an ordinance that directly prohibits the use of covered natural gas appliances in new buildings.”

This is a timely decision that may affect how other state and local governments deal with the natural gas question. No appeal or other actions have been taken at the time of this writing.

[1] 4:19-cv-07668-YGR

[2] The exceptions are not addressed in the case nor here.

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