A legal defeat for Berkeley, Calif.'s pioneering gas ban prompted local and state officials from San Diego County to Washington state to repeal or delay restrictions on natural gas use in new buildings.

In the three months since the court decision, lawmakers in Eugene, Ore., repealed the state's first gas ban, Washington delayed implementation of its nation-leading electric heating requirements, and cities throughout Southern California rescinded or shelved Berkeley-style ordinances.

The reversals all stem in whole or part 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 conflicts with the federal Energy Policy and Conservation Act (EPCA), which regulates the energy efficiency and use of consumer products. In the panel's opinion, the EPCA's 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. Electric heat pumps do not produce on-site carbon emissions and can be up to four times as efficient as gas furnaces, according to the US Environmental Protection Agency.

"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."

Eugene gas ban is short lived

The Eugene City Council unanimously voted July 10 to repeal an ordinance prohibiting fossil fuel use in new low-rise residential construction. The policy, passed in February, faced other obstacles; opponents backed by local gas utility Northwest Natural Gas Co. swiftly collected enough signatures to put the ordinance on the ballot in November.

The council had several options for responding to the referendum. Members opted to repeal the ordinance and cancel the referendum rather than making an official recommendation to voters or putting an alternative measure on the ballot. Several said the 9th Circuit opinion influenced their vote to repeal.

As a next step, councilors voted 7-1 to direct the city manager to report back by July 2024 on alternative pathways to reduce fossil fuel use in new construction, including those adopted in other jurisdictions.

Councilors deadlocked over a second motion, which directed the city manager to convene a work session on climate policies that align with new and existing federal and state programs, funding and incentives, with a focus on strategic areas that yield significant emission reductions.

The motion reflected a preference for incentives over mandates by some members. It drew opposition from the council's most strident gas ban advocates, who worried that restricting gas use in new buildings would not meet the threshold for significant emissions reductions. The motion ultimately passed on Vinis' tie-breaking vote.

Washington state modifies electric heating mandate

Elsewhere in the Pacific Northwest, the Washington State Building Code Council in May voted to delay implementation of statewide electric space and water heating requirements in new homes and commercial buildings.

The decision came two days after gas utilities, homebuilders and other stakeholders sought an injunction against the policies, which were poised to go into effect in July. Building on the 9th Circuit opinion, the petitioners said the code updates violated the EPCA.

The companies that sought the injunction — Avista Corp., Cascade Natural Gas Corp. and Northwest Natural Gas — responded to the code council's emergency rulemaking by recommending code officials scrap the electrification mandates altogether. Building electrification advocates proposed surgical changes that would make the code EPCA-compliant and would maintain a strong incentive to install electric heating equipment.

Seattle, which adopted electric heating requirements in commercial buildings before Washington, continues to enforce its latest energy code as the court process plays out, Tim Robbins, communications manager for the Seattle City Attorney's Office, said in an email.

Southern Calif. gas bans interrupted

The 9th Circuit opinion also stole momentum from a policy push in Southern California.

In April, Carpinteria and Goleta, Calif., were poised to prohibit gas infrastructure in new buildings and renovations, making them the first communities in Santa Barbara County to adopt gas bans since 2021. The county itself was advancing a gas ban that would apply to unincorporated areas, part of a coordinated regional effort to implement similar policies — an approach that helped dozens of building electrification mandates proliferate throughout the San Francisco Bay Area.

"The collaborative approach that we had to working together to develop this has been really beneficial, especially at smaller agencies," Carpinteria environmental program manager Erin Maker said in an interview.

The ordinances passed unanimously on first reading in both cities. However, the 9th Circuit opinion prompted Carpinteria and Goleta to cancel scheduled second readings, the final step in adoption.

Similar events played out in Irvine, Calif., which was on pace to become the first city in densely populated Orange County to require all-electric new construction.

With buildings accounting for 33% of Irvine's greenhouse gas emissions, lawmakers in the fast-growing city aimed to ensure tens of thousands of anticipated new housing units would be built toward net-zero emissions standards in the coming years.

Irvine canceled a second reading of its gas ban scheduled for April 25, citing the 9th Circuit opinion.

Berkeley approach seen as vulnerable

The policy setbacks for electrification advocates in Southern California appeared to be linked to the popularity of Berkeley-style gas bans in the region. Cities that follow the approach adopt a municipal ordinance, restricting gas use in new construction by leveraging local authority to protect public health and safety.

Despite capturing national attention when it passed in July 2019, the Berkeley ban never caught on in the Bay Area. Instead, most Bay Area cities mandated electric heating and appliances through a modification to state energy codes, known as a reach code. But as the policy migrated south, the Berkeley approach prevailed in some cities, including Los Angeles, Pasadena, Riverside, Santa Barbara and Santa Cruz.

The 9th Circuit opinion takes direct aim at Berkeley-style gas bans but not reach codes, according to Amy Turner, a senior fellow for the Cities Climate Law Initiative at Columbia Law School's Sabin Center for Climate Change Law. "It's likely that in many of these places [with reach codes], the municipal attorneys will be reviewing the decision, but they're not going to have that kind of very direct effect," Turner said in an interview.

In June, Encinitas, Calif., temporarily suspended its electric-required reach code in response to the 9th Circuit opinion. But elsewhere, policymakers saw reach codes as more resilient than the Berkeley approach.

In Carlsbad, Calif., lawmakers had considered a gas ban among several options but recalibrated after the 9th Circuit opinion. The Carlsbad City Council on July 11 directed city staff to present options for an electric-preferred reach code Sept. 12. Electric-preferred reach codes typically incentivize developers to construct all-electric buildings by placing higher energy performance requirements on buildings with fossil fuel hookups.

On June 13, the Santa Cruz City Council voted unanimously to suspend its gas ban. A spokesperson for Santa Cruz County told the East Bay Times that the county will continue to enforce its all-electric requirements for new residences, passed in November 2022 alongside a building code update.

As for Los Angeles, the city attorney's office is still reviewing the 9th Circuit opinion, a spokesperson said in an email.

"One thing that I think is interesting is ... the varying appetites for legal uncertainty that different municipalities are willing to take on" while the legal dispute continues, Turner said.

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