“Electrify Everything” Slammed Again By Ninth Circuit

Court's latest ruling has national implications and affirms that bans on direct use of natural gas violate federal law.

Fried rice being prepared over a gas flame, Tokyo, March 4, 2023. Photo by author.

The Ninth Circuit Court of Appeals has cranked up the heat on the “electrify everything” foolishness.

Last month, the Ninth Circuit denied the city of Berkeley's petition to re-hear its case after the city’s ban on natural gas use in homes and businesses was ruled illegal last April. The January 2 ruling has national implications and is an enormous loss for the electrify everything movement, the lavishly funded campaign that seeks to ban natural gas stoves, water heaters, and other gas-fired appliances in the name of climate change.

Before I delve into the court ruling, it’s essential to understand the danger to our energy security posed by the electrify everything effort and the dark money groups that are pushing it.

As I have reported here, the electrify everything movement could result in enormous reductions in the affordability, reliability, and resilience of our electric grid. The campaigners want to add massive amounts of new load onto an energy network that is already cracking under existing demand. Indeed, the electrify everything jihadis are pushing for the electrification of heating, transportation, and industry at the very same time that numerous policymakers and regulators are warning about the declining reliability of the power grid.

To cite two recent examples, last May, members of the Federal Energy Regulatory Commission delivered stark warnings to the members of the Senate Energy and Natural Resources Committee. The agency’s acting chairman, Willie Phillips, told the senators, “We face unprecedented challenges to the reliability of our nation’s electric system.” FERC Commissioner Mark Christie echoed Phillips’ warning, saying the U.S. electric grid is “heading for a very catastrophic situation in terms of reliability.” His colleague, Commissioner James Danly, averred that there is a “looming reliability crisis in our electricity markets.”

Last August, the North American Electric Reliability Corporation named “changing resource mix” as a top reliability risk facing the electric grid. And for the first time, it named climate policy as one of the most significant risk factors. It said, “policy decisions can significantly affect the reliability and resilience of the [bulk power system]. Decarbonization, decentralization, and electrification have been active policy areas. Implementation of policies in these areas is accelerating, and, with changes in the resource mix, extreme weather events, and physical and cyber security challenges, reliability implications are emerging.” (Emphasis added.)

Further, the same NGOs pushing to electrify everything are also aggressively promoting policies that will make our electric grid even more reliant on weather-dependent sources like wind and solar. As the slide above shows, NERC is warning that our grid is increasingly vulnerable to “wind and solar droughts.” If climate change means we are facing more extreme weather of all types, the last thing we should do is make our grid more dependent on the weather.

The electrify everything movement is fueled by massive contributions from some of the world’s richest people, including Michael Bloomberg, John Doerr, and Laurene Powell Jobs. Numerous climate-focused NGOs, including the Sierra Club (2022 budget: $168 million) and Rocky Mountain Institute (2022 budget: $117 million), as well as dark-money entities like Climate Imperative and Rewiring America, are leading the attack against gas stoves and the direct use of gas. In 2022, Climate Imperative — headed by veteran climate activist Hal Harvey and two former Sierra Club employees, Bruce Nilles and Mary Anne Hitt — had revenue of $289 million. For comparison, the American Gas Association, which represents gas utilities, had revenue of about $37 million that year.

Jobs and Doerr were founding board members of Climate Imperative, which does not reveal the identities of its donors. Last March, in “The Dark Money Behind The Gas Bans,” I wrote about Rewiring America, which had recently hired Georgia politician Stacey Abrams. I explained that Rewiring America has about 40 employees and:

is among the most prominent members of this dark money network. The group doesn’t publish its budget or file a Form 990. Instead, it is a sponsored project of the Windward Fund, a 501c3 non-profit that does not disclose its donors. Nor does it reveal how much it is giving to Rewiring America. Although it is impossible to know exactly how much dark money is being shuffled among groups like the Windward Fund, Rewiring America, and others, my tally shows that just four of the dark money NGOs behind the gas bans have combined budgets of about $820 million.

Now, back to the Ninth Circuit. The court’s January 2 decision not to entertain a rehearing of the Berkeley case confirms that the gas bans enacted in California over the past several years are invalid. According to the Sierra Club, which has been gleefully tracking the bans, some 76 cities or counties in the state have enacted bans or restrictions on gas since Berkeley enacted its ban in 2019. On a website that tracks the restrictions, the Sierra Club makes no mention of the Ninth Circuit’s rulings. The group may want to ignore it, but the decision affects all of the states in the Ninth Circuit: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. That means the recent bans on gas in Seattle and the statewide ban in Washington, which was adopted last year, are invalid. So, too, is the ban imposed by Eugene, Oregon, in early 2023.

The San Francisco Chronicle summarized the appeal, noting that “Berkeley, joined by the Biden administration, other cities and states, and conservation groups, then asked the full appeals court, which has 16 Democratic appointees among its 29 judges, to order a rehearing. But only 11 judges, all appointed by Democratic presidents, voted for a new hearing...the ruling will now become final unless the conservative-majority Supreme Court agrees to review it.” The article quoted Sarah Jorgensen, a lawyer for the California Restaurant Association, who said the court recognized that “energy policy was a matter of national concern and that there should be uniform national regulation.”

Berkeley’s gas ban was first ruled illegal last April, when the Ninth Circuit ruled in favor of the restaurant association. The January 2 decision affirmed the court’s prior ruling and noted that Congress, when it passed the Energy Policy and Conservation Act (EPCA) of 1975, “ensured that states and localities could not prevent consumers from using covered products in their homes, kitchens, and business. EPCA thus preempts Berkeley’s building code, which prohibits natural gas piping in new construction buildings from the point of delivery at the gas meter.”

As I explained in these pages shortly after the April ruling in “The Ninth Circuit Spikes Berkeley’s Gas Ban,” the three judges assigned to the case found that EPCA:

expressly preempts State and local regulations concerning the energy use of many natural gas appliances, including those used in household and restaurant kitchens. Instead of directly banning those appliances in new buildings, Berkeley took a more circuitous route to the same result and enacted a building code that prohibits natural gas piping into those buildings, rendering the gas appliances useless….By its plain text and structure, EPCA’s preemption provision encompasses building codes that regulate natural gas use by covered products. And by preventing such appliances from using natural gas, the new Berkeley building code does exactly that.” (Emphasis in original.)

A January 3 article published by Oakland-based KTVU, quoted Berkeley City Council member Kate Harrison, who authored the gas-ban ordinance, saying her city “will continue to do everything in its power to fight climate change and protect the health of its residents."

The Ninth Circuit’s latest decision should also mean that bans on natural gas in other parts of the country should also be nullified. But the Ninth Circuit only covers part of the country. That means its decisions may set a precedent, but it doesn’t mean the precedent applies to other regions. That could change soon, however, because Jorgenson has filed a similar suit against the state of New York.

Last May, New York became the first state to ban gas stoves and furnaces in most new buildings. The law requires all-electric heating and cooking in new buildings shorter than seven stories by 2026, and for taller buildings by 2029. The city of New York has also passed a ban in the form of Local Law 97, which is even more destructive. That measure requires building owners to remove gas boilers over the next few years or face huge financial penalties. For more on Local Law 97, see the September 26, 2023 edition of the Power Hungry Podcast with my pal, Jane Menton, a lifelong New Yorker, who calls the measure an “electrification monster” that could result in a humanitarian nightmare in Gotham.

On October 12, Jorgenson filed suit on behalf of a group of plaintiffs, including propane dealers, homebuilders, and plumbers. In a press release, Jorgenson’s firm said the “The drastic step of requiring ‘all-electric’ new buildings despite an already-strained electric grid stands at odds with the public's need for a reliable, resilient, and affordable energy supply. New York's gas ban is preempted by federal law, is contrary to the public interest, and harms plaintiffs and the members they represent.”

If Jorgenson prevails in New York, and she should, the next stop on the litigation is the U.S. Supreme Court, which should weigh in and declare that the electrify everything effort, is, as Jorgenson says, “contrary to the public interest.”

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