Dive Brief:

• A District Court judge dismissed a lawsuit last week challenging the city of Berkeley, California's 2019 ban on natural gas infrastructure in new low-rise residential buildings, a decision that some observers say could inspire more cities to follow with their own restrictions.
• In a lawsuit brought by the California Restaurant Association (CRA), U.S. District Court Judge Yvonne Gonzalez Rogers for the Northern District of California stated that the local regulation is not preempted by the federal U.S. Energy Policy & Conservation Act (EPCA). The judge did not rule on whether it is preempted by the California Building Standards Code or the California Energy Code, and said that must be taken up in state court.
• Experts said this ruling could encourage cities to enact similar restrictions, as they can stand up in court. A slew of other cities in California have already followed Berkeley's lead, including large ones like San Jose, Oakland and San Francisco.

​Dive Insight:

Berkeley turned heads in 2019 with its first-in-the-nation ban on natural gas infrastructure in new low-rise residential buildings, which also required that all new buildings in the city be "electric-ready," with proper panels and wiring conduits to support electric infrastructure. But the moves by Berkeley and others prompted a backlash as the natural gas industry lobbied legislators to pass bills in several states designed to strip cities' authority to pass zero-emissions building codes.

The CRA, a trade group that represents California's restaurant industry, argued in its lawsuit that Berkley cannot bypass the EPCA regulations and those federal regulations do not allow cities to favor one type of energy over another as related to appliances covered under the Act. The court, in its dismissal of the case, ruled that the city is not required under the EPCA to extend natural gas infrastructure to new buildings— which the ordinance essentially banned. 

In her dismissal of the lawsuit, Gonzalez Rogers also cited the right for a city to exercise "its power to regulate building infrastructure to protect public health and safety," which is part of the exercising of states' rights under the Tenth Amendment of the U.S. Constitution. The decision also says the Natural Gas Act leaves "all aspects relating to the direct consumption of gas" to the states.

In a blog post, Amy Turner of the Climate Law Blog at Columbia Law School called the decision a "win for local governments" as the EPCA does not "impinge on their health and safety authority." For its part, CRA said it would appeal on the basis that EPCA helps set national energy policy and prevents local authorities from overriding it.

"The complex energy regulatory framework, which balances a wide array of interests such as energy sources, addressing climate change, infrastructure, markets, and consumer needs is set at the national level in conjunction with the states," CRA's attorney, Courtland Reichman of Reichman Jorgensen, said in a statement. "Regardless of which administration is in the White House, its energy policy would be undermined if each of the thousands of cities and counties across the country can simply veto it."

But there is evidence that the effort by states to preempt local authority over building codes may be losing momentum, according to Alejandra Mejia Cunningham, a building decarbonization advocate in the Natural Resources Defense Council's Climate and Clean Energy Program. States rich in fossil fuels or with unified Republican leadership have quickly passed legislation preempting cities from amending their building codes away from oil and gas. But local governments, she said, are now a lot wiser to the threat and have taken away the "element of surprise" by lobbying against similar legislation. 

"It shows that there's still a lot of avenues that local governments can and will pursue, to represent the interests of their residents that strong for urgent action, on climate and healthy buildings, that those local governments will continue to be pursuing them," Mejia Cunningham said. "And we're seeing them be successful."