Please see the email below from AGA’s General Counsel Mike Murray to the AGA Legal Committee that reports on today’s court action where “ a unanimous panel of the United States Court of Appeals for the Ninth Circuit held that the federal Environmental Policy and Conservation Act, EPCA, expressly preempts a municipal code that regulated gas use in covered products by prohibiting gas service in new construction”. Recall that back in July 2019, the city of Berkeley California,  was the first city to issue a natural gas ban. We will be following this Issue as it progresses and particularly how it will impact other cities or jurisdictions that have adopted natural gas bans in one form or another as well as model energy codes that are developed that would have impose similar bans.

Best Regards,

Jim

American Gas Association represents more than 200 local energy companies committed to the safe and reliable delivery of clean natural gas to more than 73 million customers throughout the nation.

To:         AGA Legal Committee

Re:         California Restaurant Association v. Berkeley, Reversed

Banning gas use through building codes advocates received a tremendous reversal today when a unanimous panel of the United States Court of Appeals for the Ninth Circuit held that the federal Environmental Policy and Conservation Act, EPCA, expressly preempts a municipal code that regulated gas use in covered products by prohibiting gas service in new construction.

Judge Bumatay’s opinion, to which Judges O’Scannlain and Baker wrote concurring opinions, noted:

EPCA’s preemption clause establishes that, once a federal energy conservation standard becomes effective for a covered product, “no State regulation concerning the energy efficiency, energy use, or water use of such covered product shall be effective with respect to such product,” unless the regulation meets one of several categories  . . .

42 U.S.C. §6297(c)(emphasis added)

Judge Bumatay determined that “regulation concerning the . . . energy use” of a covered product includes the ability to use installed covered products. That is, EPCA ensures that states and localities cannot prevent consumers from using covered products in their homes, kitchens, and businesses.

Bluntly summarizing the case, Judge Bumatay stated that “EPCA preempts building codes, like Berkeley’s ordinance, that function as “energy use” regulations.  Put differently, EPCA does not permit States and localities to dodge preemption by hiding “energy use” regulations in building codes” and “Berkeley can’t bypass preemption by banning natural gas piping within buildings rather than banning natural gas products themselves.”

The decision of the United States District Court was reversed, and the case remanded for proceedings consistent with the opinion.

The American Gas Association represents more than 200 local energy companies committed to the safe and reliable delivery of clean natural gas to more than 74 million customers throughout the nation.