Ninth Circuit Court of Appeals Confirms Berkeley Gas Ban Preempted by Federal Law

WASHINGTON, D.C. – American Gas Association President and CEO Karen Harbert released the following statement after the U.S. Court of Appeals for the Ninth Circuit decision reaffirmed that federal law preempts Berkeley’s attempt to use building codes to restrict access to natural gas and thus prohibit consumers from using natural gas–powered appliances in newly constructed buildings.

“This precedent is a victory for safeguarding energy choice with national implications,” said Karen Harbert, AGA president and CEO. “Natural gas has been one of the primary drivers for achieving environmental progress, and any ban on this foundation fuel will saddle consumers with significant costs for little environmental gain. The natural gas industry has led the way in reducing our nation’s emissions, and we will continue to innovate and advance technologies to help ensure Americans have access to the efficient and reliable energy they need and expect.”

Background information:

In April of 2023, a three judge panel of the U.S. Court of Appeals for the Ninth Circuit held that the plain text and structure of the Energy Policy and Conservation Act (EPCA) preempts state and local building codes concerning the energy use of natural gas appliances, including Berkeley’s building code which prohibits natural gas piping into new buildings and thereby prevents those appliances from using natural gas.  On January 2, 2024, the U.S. Court of Appeals for the Ninth Circuit denied Berkeley’s request for review by the full Ninth Circuit and the panel’s decision was reaffirmed.