It's a Gas!

California's Ban-Happy City Councils Get Burned, Look to Building Codes

Cooking with Gas | Photo by Ilse Driessen on Unsplash

“Money…it’s a gas…” - Pink Floyd

A Thorn in the Side

The U.S. Ninth Circuit Court of Appeals dealt a fatal blow to the City of Berkeley’s gas ban ordinance in January, when the judges declined to rehear Berkeley’s case in an en banc session. The decision in favor of the California Restaurant Association (CRA) effectively upholds the appellate court’s opinion from April 2023, ruling that the ordinance violated federal law. Unless brought before the U.S. Supreme Court, the decision cannot be overturned and represents a definitive precedent deterring other cities from pursuing Berkeley’s restrictive path banning natural gas hookups in new buildings. Indeed, Berkeley seems to be backing off the idea of further litigation, settling with CRA and beginning the process of repealing the ban in March 2024.

CRA first brought the suit in late 2019, shortly after Berkeley City Council had voted to implement the ban, arguing that the U.S. Energy Policy and Conservation Act (EPCA) preempted the authority of local jurisdictions to create energy efficiency standards for covered appliances. Their claim also cited unfair hardships and burdens on the industry that would result from the ordinance, as standard chef training requires the use of gas stoves. In July 2021, the U.S. District Court for the Northern District of California dismissed CRA’s case, opining that the city had the right to distribute gas, and writing that downstream effects on appliance energy efficiency were beyond the scope of EPCA.

Upon appeal to the Circuit Court, CRA’s attorneys claimed that the District Court had improperly interpreted the purview of EPCA, stating that Berkeley’s ban would de facto override the authority of the federal government to regulate gas stoves. The Circuit Court agreed, and reversed the lower court’s ruling. The most recent affirmation of this decision earlier this year has sent cities throughout the state reeling, as some 70 local jurisdictions now have to back-pedal their plans to copy Berkeley’s first-in-the-nation attempt to ban new gas hookups. Some larger cities such as Los Angeles and San Francisco have tentatively kept their proposed bans, perhaps believing that they are better equipped to take on the inevitable legal challenges.

A Rose By Any Other Name

While banning gas by fiat is, for the moment, out of the question, city councils are looking to another avenue to essentially achieve the same goal: building energy codes. Berkeley’s ban circumvented federal law by eliminating gas lines completely in new construction. However, most aspects of building energy codes are firmly within the domain of state and local jurisdictions. These include minimum energy performance standards — rather than regulating individual devices, the emphasis is on total CO2 emissions for a building. This offers an opportunity to effectively ban gas appliances by stealth — simply make maximum CO2 emissions impossible for gas products to meet.

An example already on the books is Washington state, where new builds will need to achieve emissions and energy efficiency requirements on par with electric heat pumps beginning this year. The California Energy Commission is also set to enact a new code cycle for building energy standards later this year, going into effect in 2026. Draft code language indicates a similar strategy to that of Washington, resulting in standardizing electric heat pumps for water and space heating and cooling. While stoves use less energy than gas furnaces, it is not difficult to imagine that increasingly stringent codes will have a chilling effect on builders installing any gas appliances in new homes and businesses, even if they are not directly outlawed.

Further air quality regulations and restrictions on pollution particulates can similarly be manipulated to target the specific types of pollutants released by gas combustion in buildings (NOX, VOCs, etc). Although these compounds are linked to human disease in sufficient quantities, there is no conclusive evidence that gas stove emissions reach any meaningful threshold suggesting a causative link. One highly circulated study claiming a link between indoor gas stove use and childhood asthma, has been refuted by other researchers on the topic, citing faulty methodology.

Into the Weeds

Another controversy brewing under the surface of the Berkeley legal spat involves an attempt of the gas industry to improperly influence the outcome of the decision through lobbying activities and courting conflicts of interests. Public filings to the California Public Utilities Commission (CPUC) showed that SoCalGas used ratepayer money to retain services from Reichman Jorgensen, the same legal firm that represented CRA, and that these services included lobbying and litigation efforts fighting for preemption of federal law over local energy efficiency policies. The allegations of impropriety, first brought to mainstream attention by California Environmental Justice Alliance and the Sierra Club, also concentrate on a questionable donation of $500,000 from SoCalGas to CRA’s foundation fund in 2021.

However, not widely reported is that Southern California Edison (SCE), the largest electric-only utility in the state, also regularly engages in funding anti-gas activities. Public filings show that SCE annually pays out hundreds of thousands of dollars in charitable donations and operations expenditures to organizations such as the American Council for an Energy Efficiency Economy (ACEEE), the New Buildings Institute (NBI), and NGOs focused on air quality such as Coalition for Clean Air, all of which champion building electrification and the phase out of gas-fired appliances.

To wit, one of NBI’s signature policy goals is “Getting to Zero” through “market development and leadership.” The Coalition for Clean Air similarly advocates for “building decarbonization” through building codes and emissions standards. Organizations like ACEEE and NBI spend millions developing public education campaigns intended to create a negative image of natural gas appliances, having downstream consequences on consumer choice and election results. While there is no clear evidence of wrongdoing on the part of SCE in donating to these causes, the company nonetheless stands to profit from an increasingly all-electric building load.

As independent journalist Robert Bryce has previously reported, the NGOs supporting the gas bans across the country are deep-pocketed, dark money-linked groups that seem to operate as shadow organizations, promising simple “green is good” platitudes, while lobbying heavily behind the scenes for policies that may not resonate with the general public. About 2 out of 5 Americans currently use natural gas stoves, and attempts to ban these devices has sparked outrage not only from the restaurant industry, but from home owners as well.

While this kind of underhanded lobbying activity may not be completely unique to the “electrify everything” lot, the sheer amount of cash flow generated by these organizations suggests they should be closely monitored for collusion and other malfeasance.

Lawsuits over gas bans are set to ignite across the U.S. A coalition of businesses, trades organizations, and labor unions have sued the state of New York over Governor Hochul’s ban on gas stoves and furnaces in new residential buildings, which is supposed to go into effect on December 31, 2025. As the push for net zero and all-electric buildings heats up, this highly contentious and politicized issue will continue to be a sticking point in coming election cycles, and the bane and glory of litigators nationwide. It’s bound to be a gas.

Electrically yours,

K.T.