Restaurants appeal court ruling supporting Berkeley’s natural gas ban

a gas stove with a tea kettle on it
David McAllister/Staff
The California Restaurant Association filed an appeal of a July district court ruling that upheld Berkeley's 2019 natural gas ban.

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The California Restaurant Association, or CRA, filed an appeal Aug. 4 against a July district court ruling supporting Berkeley’s ban on natural gas.

The July ruling, issued by U.S. District Judge Yvonne Gonzalez Rogers, found that the Energy Policy and Conservation Act, or EPCA, which is federal legislation, did not preempt Berkeley’s 2019 ban, which falls under state jurisdiction. In other words, the federal energy law did not conflict with local regulation of natural gas.

Berkeley’s natural gas ban, which was signed into law by Mayor Jesse Arreguín on Aug. 6, 2019, and went into effect Jan. 1, 2020, prevented natural gas infrastructure in new buildings. According to a city clerk report, natural gas accounted for 27% of Berkeley’s greenhouse gas emissions, second only to the transportation sector.

“I have confidence that future rulings will reaffirm the previous court decision confirming our ability to regulate infrastructure in order to protect the welfare of our residents,” Arreguín said in an email. “Such policies are necessary in advancing our environmental goals which are needed to prevent disastrous runaway climate change.”

Specifically, the case deals with field preemption, which is when state governments may not enter an area which the federal government has reserved for itself, according to retired U.S. Supreme Court justice Anthony Kennedy. This can be seen when federal regulation on a sector is so pervasive that the federal government clearly does not want state intrusion, even if the state policy supports the federal one.

The CRA’s core argument against the case had two parts. First, it argued that because Berkeley had banned natural gas infrastructure in new buildings, any appliances which rely on natural gas in those buildings would effectively be forced to use zero gas.

That includes natural gas stoves in new restaurants.

“The loss of flame cooking in restaurant settings would dramatically impact restaurant kitchens, where chefs rely on gas stoves to grill vegetables, sear meats,” said CRA President and CEO Jot Condie in a press release.

Second, the CRA argued the EPCA specifically protected the fuel consumption of gas-powered commercial kitchen appliances, such as stoves. Because the federal government had claimed this territory for itself, state and local governments could not intrude, the organization claimed.

Rogers found that the CRA’s interpretation of the law was too expansive in her initial July ruling, not being in line with either the EPCA’s text or Congress’ legislative history.

“Indeed, as discussed infra, Congress has historically and explicitly deferred local natural gas infrastructure to states and localities,” Rogers wrote in her opinion. “Thus, the Court concludes that the statutory language of the EPCA does not support preemption of the Berkeley Ordinance.”

Christopher Ying is the lead crime and courts reporter. Contact him at [email protected], and follow him on Twitter at @ChrisYingg.