The 9th U.S. Circuit Court of Appeals decision to overturn Berkeley's ban on natural gas stoves could threaten dozens of similar restrictions nationwide.
A three-judge panel sided with the California Restaurant Association in voting unanimously that the city's 2019 ban on gas stoves ran afoul of the Energy Policy and Conservation Act of 1975, which they said preempted a local gas stove ban — a ruling that now puts into doubt the scores of similar bans advanced across the nation in recent years.
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The appellate court decision may have "ripple effects" for gas appliance restrictions nationwide and provide a road map of sorts for industry and consumer groups looking to halt such policies, said Rob Rains, a senior vice president at the independent research firm Washington Analysis.
The ruling "does provide a playbook for opponents of these policies to kind of 'storm the walls,' so to speak, and seek for them to be thrown out as well," he said in an interview.
More than 100 U.S. cities and localities have moved to restrict gas-powered appliances, including 75 cities in California alone.
Monday's ruling only technically applies to states that fall under the 9th Circuit's jurisdiction: California, Alaska, Arizona, Hawaii, Idaho, Nebraska, Nevada, Oregon, and Washington, as well as Guam and the Mariana Islands. But it sets the stage for a challenge to regulations in those states. Even if bans are upheld by courts, any such ruling would create a split between circuits, raising the prospect of the Supreme Court weighing in for the whole country.
"The faster that you have these potentially split decisions about these types of policies in different circuit courts, it creates a ripeness, which could make it more attractive for the Supreme Court to potentially take up this issue," he said.
The court's decision hinged on its reading of the Energy Policy and Conservation Act of 1975, which gives the Department of Energy the legal right to set conservation standards for certain building appliances, including hot water heaters, furnaces, and HVAC systems — and preempts local laws in those areas.
“By its plain text and structure, EPCA’s preemption provision encompasses building codes that regulate natural gas use by covered products,” Judge Patrick Bumatay wrote for the panel. “And by preventing such appliances from using natural gas, the new Berkeley building code does exactly that.”
Bumatay added, “States and localities can’t skirt the text of broad preemption provisions by doing indirectly what Congress says they can’t do directly."
The California Restaurant Association argued that gas-powered stoves are crucial for chefs to prepare food the way they are classically trained.
American Gas Association President and CEO Karen Harbert said in a statement that the decision will both “safeguard energy choice for California consumers and help our nation continue on a path to achieving our energy and environmental goals.”
In California, more than 75 cities and counties have modeled Berkeley's ordinance in crafting their own gas bans.
Major cities, including San Francisco, Oakland, Los Gatos, and Sunnyvale, as well as Marin County, have adopted similar bans, either banning or restricting natural gas appliances, including gas-powered stoves.
It is possible that gas stove critics may regroup and rework policies to sidestep the 9th Circuit ruling.
“Yesterday's ruling is a clear setback for the gas ban policy movement. … But I would think, personally, that a lot of localities that have adopted these policies will simply take it or draft around it, particularly on the West Coast,” Rains added.
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Notably, the California Air Resources Board approved a plan last September to ban the sale of new natural gas-fired furnaces and home water heaters in the state by 2030. But it doesn't include gas stoves, though its final rules will not come up for a final vote until 2035.
Beyond the Golden State, cities in New York, Washington, Massachusetts, and Maryland have passed ambitious plans to phase out or ban natural gas appliances in new buildings.