The Berkeley City Council will need to find another way to eliminate greenhouse gas emissions after a federal appellate court struck down a local law that blocked gas piping and connections in new buildings.

A panel of the U.S. Court of Appeals for the 9th Circuit ruled Monday that federal law superseded a 2019 ordinance that barred gas connections in new construction. The ruling invalidates the Berkeley ordinance.

The dispute arose from the council’s desire to reduce the environmental risks and health hazards from using and transporting natural gas.

Arguably the most direct way to that end would have been to forbid the installation of gas appliances like gas stoves, refrigerators, and water heaters in new buildings. However, a federal law — the Energy Policy and Conservation Act — expressly “preempts” state and local laws concerning the energy use of many natural gas appliances.

Preemption is a legal term for situations where federal law on a particular subject displaces any local laws on the same topic.

The City Council tried to avoid the potential preemption problem; instead of banning gas appliances, it banned installing gas piping and connections in new buildings. In essence, the ordinance said you can have all the gas appliances you want, you just won’t have any gas service to connect them to.

Federal law prevented the Berkeley City Council from banning gas appliances, so it did so indirectly in 2019 when it created an ordinance prohibiting the installation of natural gas hookups in new construction. The decision drew the ire of the California Restaurant Association, which successfully sued the city to overturn the ban. (Ray Saint Germain/Bay City News)

The California Restaurant Association, a trade association for restaurant owners and chefs, was unhappy with the threat to the use of gas for cooking purposes in the future and in November 2019 brought a lawsuit against the city.

The lower court ruled against the restaurant organization, finding that the local ordinance only indirectly affected appliances covered by federal law and therefore could peacefully co-exist with the federal regulation.

In resolving the dispute on appeal, each of the three judges on the panel wrote opinions — 41 pages in all — to explain their separate takes on the case.

In the lead opinion, written by Judge Patrick Bumatay, an appointee of former President Donald Trump, the court ruled that federal law was intended to oust any state law regulating “the energy use” of covered products such as gas appliances.

After a careful discussion of the precise meaning of the statutory terms — including an analysis of whether “zero” amounted to a “quantity” — Bumatay concluded that the local law intruded into the space that federal law controlled.

More generally, Bumatay reasoned that that Berkeley could not “skirt the text of broad preemption provisions by doing indirectly what Congress says they can’t do directly.”

The other judges on the panel were Diarmuid O’Scannlain and M. Miller Baker, the former appointed by former President Ronald Reagan and the latter by Trump.

O’Scannlain wrote his own opinion to make clear that he would not have independently interpreted preemption as broadly as Bumatay, but was bound to do so by earlier decisions from the 9th Circuit.

Baker expressed concerns about the restaurant association’s standing to sue, but had little difficulty concluding that the local law intruded into federal space.

To make the latter point clear, he included in his opinion two technical illustrations that he said showed that the Berkeley ordinance “cuts to the heart of what Congress sought to prevent.”

Joe Dworetzky, Bay City News

Joe Dworetzky is a second career journalist. He practiced law in Philadelphia for more than 35 years, representing private and governmental clients in commercial litigation and insolvency proceedings. Joe served as City Solicitor for the City of Philadelphia under Mayor Ed Rendell and from 2009 to 2013 was one of five members of the Philadelphia School Reform Commission with responsibility for managing the city’s 250 public schools. He moved to San Francisco in 2011 and began writing fiction and pursuing a lifelong interest in editorial cartooning. Joe earned a Master’s in Journalism from Stanford University in 2020. He covers Legal Affairs and writes long form Investigative stories. His occasional cartooning can be seen in Bay Area Sketchbook. Joe encourages readers to email him story ideas and leads at