The appeals judges found that the specific form of Berkeley’s gas infrastructure prohibition, which was written into its building code, is preempted by the federal Energy Policy and Conservation Act (EPCA).

“Berkeley can’t bypass preemption by banning natural gas piping within buildings rather than banning natural gas products themselves,” concluded Judge Patrick J. Bumatay in his opinion.

The case, brought by the California Restaurant Association (CRA), was sent back to the U.S. District Court for the Northern District of California, where the CRA’s claim that the ban is also preempted by California law will be heard.

“Cities and states are not equipped to regulate the energy use or energy efficiency of appliances that businesses and homeowners have chosen; energy policy and conservation is an issue with national scope and national security implications,” said CRA president and CEO Jot Condie in a press release. “This ordinance, as well as the solution it seeks, is an overreaching measure beyond the scope of any city.”

The CRA was represented by the law firm of Reichman Jorgensen Lehman & Feldberg.

“The Ninth Circuit’s ruling today underscores the importance of a consistent national energy policy, which was Congress’ intent the whole time,” said Sarah O. Jorgensen, a partner in the firm, in an April 17 press release. “Cities and states should not be permitted to overrule energy decisions that affect the country as a whole.”

Berkeley city attorney Farimah Faiz Brown said the city is evaluating its next move.

Matt Vespa, an attorney with the environmental group Earthjustice, said the appeals court’s decision was disappointing but not entirely surprising, given that the judges seemed skeptical during oral arguments.

“We’re obviously disappointed with the ruling and it does, to us, feel like an overreach,” Vespa said. Earthjustice had filed an amicus brief last year in support of the city’s position.

Berkeley’s natural gas infrastructure prohibition was the first such ban in the nation. Since it was adopted, other states and municipalities have adopted measures to curb or prohibit the expansion of fossil fuel use.

New York City, for example, in late 2021 banned natural gas hookups for new buildings of less than seven stories beginning this year, and for taller buildings beginning in 2027 (there are exceptions, including for commercial kitchens).

Attorney Amy Turner, who leads the Cities Climate Law Initiative at the Columbia University law school, said the appeals court’s decision should have a limited scope. It applies only within the Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands), Turner said. And it leaves the door open for different approaches to a ban than the one Berkeley took, Turner said.

New York City, for example, Turner said, enacted its ban through an ordinance restricting air pollution.

“Legal questions remain in connection with the air emissions standard approach, particularly with respect to limitations of state law, but many local governments retain authority to regulate air pollution to some degree,” Turner wrote in a blog post.

The prohibition had resulted in the electrification of newly constructed buildings in Berkeley that likely would have had natural gas infrastructure absent the ban. The majority of electricity used in the city comes from renewable sources such as wind and solar power; most Berkeley electricity customers buy electricity through East Bay Community Energy (EBCE), a not-for-profit public agency.