CRA continues the fight over Berkeley’s illegal and ill-conceived natural gas ban


As California restaurants continue to face uncertainties associated with COVID-19 recovery and rising supply chain costs, the California Restaurant Association is working to prevent a ban that would eliminate restaurants’ ability to use gas stoves and ovens – another hurdle that our small business owners cannot afford. This week, we filed our opening brief in our Ninth Circuit appeal of Berkeley’s natural gas infrastructure ban.

The CRA first brought this case in late 2019 to address what Berkeley characterized as the first local ordinance of its kind attempting this “new approach” that would do an end-run around federal and state laws in order to ban the use of natural gas in newly constructed buildings. This ban would not only impact both residential and commercial construction but have a truly devastating impact on restaurants.

The federal Energy Policy and Conservation Act expressly preempts any and all state regulations “concerning” the energy use of certain appliances. Looking for a way to ban natural gas appliances in new construction, Berkeley was dissatisfied with the pace of federal legislation, and so it sought to pass its own legislation to move more quickly. Berkeley’s problem was that it could not ban gas appliances without running afoul of the EPCA and California state law. So instead of banning gas appliances, it simply banned the gas piping needed for the appliances.

We support the laudable goals of reducing greenhouse gas emissions and efforts to address climate change. Indeed, the CRA has consistently supported an open debate on which approaches to reducing carbon emissions make the most sense. But cities cannot bypass federal and state law to achieve their desired result, regardless of the subject matter.

We believe the U.S. District Court for the Northern District of California erred when it sanctioned Berkeley’s enactment of an ordinance concerning the energy use of appliances covered by the EPCA, banning an entire category of such appliances, and validating a patchwork, city-by-city approach to national appliance regulation.

Berkeley’s natural gas ban is not only illegal but it’s ill-conceived. Restaurants rely on affordable natural gas for cooking and baking, as well as for heating, hot water, and reliable power. A natural gas ban won’t just change the way restaurant kitchens do their cooking, it has the potential to harm restaurants financially and fundamentally changes their business. The CRA will continue to fight to protect the interests of its members.