Gas Stoves Triumph Over Berkeley

Not so fast. The California Restaurant Association challenged Berkeley’s ban in federal court, arguing that the Energy Policy and Conservation Act (EPCA) pre-empts local regulation of gas appliances. A lower-court judge disagreed but was overruled Monday by a three-judge Ninth Circuit panel.

Judge Patrick Bumatay explains for the panel that the EPCA explicitly prohibits states and localities from regulating “energy efficiency, energy use or water use” once a federal energy conservation standard becomes effective for a “covered product.” The law’s federal pre-emption sweeps broadly and covers local regulations “concerning” gas appliances.

Berkeley argued that the law only pre-empts local standards dictating the design and manufacture of appliances—not regulations that affect the distribution of energy sources such as natural gas. The Biden Administration essentially agreed in an amicus brief.

But as Judge Bumatay points out, federal law defines “energy use” as “the quantity of energy directly consumed by a consumer product at point of use” by appliances, and Berkeley’s ban on new gas hookups “necessarily impacts” the quantity of gas used.

“By its plain text and structure, EPCA’s preemption provision encompasses building codes that regulate natural gas use by covered products. And by preventing such appliances from using natural gas, the new Berkeley building code does exactly that,” he wrote. “States and localities can’t skirt the text of broad preemption provisions by doing indirectly what Congress says they can’t do directly.”

Judge Diarmuid O’Scannlain noted in a concurring opinion that the judiciary’s federal pre-emption doctrine is “troubling and confused” and merits more clarity from the Supreme Court. Fair enough. But as usual, progressives are seeking to advance their anti-fossil fuel agenda through a legal back door when they can’t get it through Congress.