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After the Berkeley Ruling: Moving Ahead with Building Electrification

Woman in turquoise t-shirt holding a up a whiteboard with a drawing of a lightbulb; behind her a wall of drawings of electrical symbols, buildings, scales, and mathematical formulae

Practically everyone agrees that to cool the climate, we need to stop burning fossil fuels—coal, oil, and gas—to generate power. Instead, we need to use energy from the sun and wind to power the electrical grid. Then, we need to use this clean, renewable energy—not so-called “natural” gas—to power our buildings.

In California, residential and commercial buildings account for about 25 percent of greenhouse gas emissions. It’s clear that decarbonizing buildings is essential. That’s why, back in July 2019, Berkeley became the first city in the nation to ban gas hookups in most new construction.

On January 2, a federal court decision doomed this groundbreaking ordinance. That ruling against Berkeley was certainly a setback for the building electrification movement—not just for the city but also for other municipalities that have enacted similar ordinances since 2019. Fortunately, other approaches to building electrification are very doable, and lots of people are busily working on them.

CA Restaurant Association v. City of Berkeley

In November 2019, the California Restaurant Association (CRA) challenged the Berkeley ordinance in court, claiming that it violated the Energy Policy Conservation Act, or EPCA. This federal law preempts state and local regulations regarding “energy efficiency, energy use, or water use of a covered product.”

The CRA apparently accepted more than $1 million from SoCalGas to fund its  lawsuit.

In 2021, a federal judge dismissed CRA’s case, ruling that the Berkeley ordinance did not violate federal statutes. The CRA appealed that decision. In April 2023, a three-judge panel of the federal Ninth Circuit Court of Appeals agreed with the CRA and struck down the ordinance.

The case was then heard by all 29 judges of this appellate court. On January 2, 2024, in a split decision, the Ninth Circuit declined to re-hear the case, ending all hope of putting the law into effect.

Berkeley city staff, in crafting the ordinance, had chosen to ban hookups—not the appliances themselves—to avoid violating EPCA. But the court decided that EPCA’s scope is not limited to regulation of “natural gas” devices; it also extends to gas usage of these devices on premises where gas is available.

There’s a small silver lining: in the January ruling, the original three-judge panel amended their April opinion to limit the extent of EPCA’s preemption of local building codes. And a group of judges filed a dissenting opinion that could limit the use of the ruling in other jurisdictions. For more information, see this commentary from the Public Health Law Center.

4 Ways to Build an Electric Future, Post Berkeley Ruling

Below are four strategies that cities can use to mandate all-electric buildings.

  • EPCA-compliant building codes
    Under EPCA, local governments can require builders to meet energy efficiency standards. Berkeley and other cities could raise these standards in their building codes, making electric appliances much more practical than gas-powered ones in new construction. Some California cities already have this type of code; they have not been affected by the Berkeley ruling.
  • Regulating the utilities
    Another approach to building electrification would not involve regulating appliances or hookups. According to this article on the Earth Justice website, “States and even local communities have authority over regulating utilities and can limit the use of gas in new buildings under that authority—a pathway the Ninth Circuit decision expressly leaves open.”
  • Limiting gas infrastructure
    Cities that have control of public rights-of-way under streets and sidewalks—and most do—can prohibit new fossil-fuel infrastructure in these rights-of-way. With such an ordinance in place, many larger developments would have to be all-electric.
  • Air pollution regulations
    Local governments have the power to regulate emissions from buildings and appliances. New York City’s ordinance regulating indoor air pollution in new construction provides an excellent model. It prohibits combustion of any substance that results in emissions of more than 25 milligrams of carbon dioxide per million BTUs. This standard effectively precludes the use of gas appliances.

Last year, the Bay Area Air Quality Management District (BAAQMD) mandated zero-emission standards for new furnaces and water heaters to start taking effect in 2027. Only all-electric appliances can meet these standards. While the BAAQMD rules don’t apply to appliances used for cooking, a new rule for stoves could be adopted in the future.

Looking Ahead

Here in the Bay Area and across the country, building electrification is gaining ground. The Berkeley ruling is a glitch, not a disaster. We can bring in an all-electric future for buildings and make our communities healthful, equitable places for all to thrive. We just need to keep pushing our local governments to do what’s right for our children and grandchildren.


Author: Editorial Team
Image Credit: Andrea Piacquadio on Pexels

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