Ninth Circuit Spikes Berkeley's Gas Ban

Cooking with gas rescued by court. Ruling upholds 1975 federal law prohibiting regs that favor one fuel over another.

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

Three federal court judges just rescued your gas stove and other gas-fired appliances from the nanny state.

Yesterday, in a unanimous opinion, the U.S. Court of Appeals for the Ninth Circuit ruled that the nation’s first ban on natural gas, put in place by the City of Berkeley in 2019, violates federal law. The three judges found that the city’s ordinance was preempted by the Energy Policy and Conservation Act of 1975, which prohibits the implementation of regulations that favor one type of fuel over another.

The first report I saw on the court’s ruling was here on Substack by my friend, Ed Ireland. There’s no doubt that the decision is a huge win for consumers, businesses, and energy security. Indeed, the ruling in California Restaurant Association vs. City of Berkeley, has ramifications that go beyond California and the Ninth Circuit. It should invalidate the dozens of gas bans that have been enacted across the country over the past four years. It may also mean that plans by federal authorities, including the Consumer Product Safety Commission, to ban, or restrict, the use of gas stoves, gas furnaces, and other gas-fired appliances, are kaput.

About 47 million American homes have gas stoves and lots of chefs, and consumers, including Energy Secretary Jennifer Granholm, like cooking with gas. The Department of Energy’s own numbers show that heating homes with gas is far cheaper than heating with electricity. Despite these facts, a group of lavishly funded activist groups have been pushing electrify everything mandates that would prohibit the use of gas in homes and businesses and require consumers to rely almost exclusively (including energy for electric vehicles) on our already-shaky electric grid. The electrify everything claque got a boost in January after Richard Trumka Jr., who sits on the Consumer Product Safety Commission, told a Bloomberg reporter that gas stoves are a hazard and that “any option is on the table,” including, presumably, a ban.

Trumka’s comments sparked a storm of criticism. Within hours, the White House issued a statement saying that President Joe Biden doesn’t support a ban on gas stoves.

What has since been dubbed the “gas stove culture war” was ignited in July 2019, when Berkeley became the first municipality in the country to ban the use of gas. Since then, as I explained in January, (See: “The Billionaires Behind The Gas Bans”), several NGOs, including Climate Imperative, the Sierra Club, and Rocky Mountain Institute, as well as Rewiring America, have spent untold (and undisclosed) millions of dollars campaigning and lobbying at the local and national levels to ban the direct use of natural gas in homes and businesses. And thanks to remarkably friendly (and largely unquestioning) coverage from legacy media outlets, they’ve had undeniable success.

The Sierra Club, which operates on an annual budget of about $180 million, says 74 communities in California have “adopted gas-free buildings commitments or electrification building codes.” But that number doesn’t include the most recent ban. On April 13, the Irvine City Council, again according to the Sierra Club, adopted measures mandating that all new buildings be all-electric “on or after July 1, 2023. That puts the number of California communities that have banned gas at 75. The group isn’t just pushing for restrictions in its home state. Last August, it asked the Environmental Protection Agency to ban natural gas appliances at the federal level.

In September, the California Air Resources Board voted to ban the sale of all gas-fired space heaters and water-heating appliances in the state by 2030. New York City and Seattle have banned the use of gas in new construction. Massachusetts is also rolling out a measure that will allow up to 10 communities to ban gas.

As I reported last month (See: “California Screamin’”), the Bay Area Air Quality Management District recently approved regulations that will ban the use of residential and commercial natural gas-fired water heaters and furnaces. The regulation, which only applies to new appliances, prohibits residents in the Bay Area from buying or installing gas water heaters starting in 2027. Also last month, Boston Mayor Michelle Wu, said she is working on a “climate friendly” building code that will hamper or––in the words of the Boston Globe, “discourage”––the use of hydrocarbons in new buildings in Boston.

Following the proliferation of gas bans requires following the money. The Sierra Club has been a prime beneficiary of former New York City mayor Michael Bloomberg’s Bloomberg Philanthropies, which has pledged $500 million to the Beyond Carbon project. In 2019, the pledge was considered the largest ever “philanthropic donation to combat climate change.” The Sierra Club is now getting about $30 million per year from Bloomberg.

For several years, the Rocky Mountain Institute, a group that took in $115 million in 2022, has been ginning up bogus studies that claim gas stoves are a threat to human health. And like the Sierra Club, it is getting big money from super-rich donors. In 2020, the Bezos Earth Fund gave RMI $10 million. RMI said the cash from the group, which, of course, came from Amazon founder and multi-billionaire Jeff Bezos, would help fund its “work with a coalition of partners in key states. The project will focus on making all U.S. buildings carbon-free by 2040 by advocating for all-electric new construction.”

In January, numerous national news stories were published after RMI issued a paper claiming that 12.7 percent of childhood asthmas are due to gas stoves. One of the authors of that paper, Talor Gruenwald, works at RMI. Gruenwald is also a research associate at Rewiring America, a San Francisco-based outfit that calls itself the “leading electrification nonprofit, focused on electrifying our homes, businesses, and communities.” Rewiring America is funded entirely by dark money. It 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 the Windward Fund reveal how much it is giving to Rewiring America.

The January RMI paper didn’t stand up to even modest scrutiny. The definitive analysis of indoor air pollution and gas stoves was published in 2013 in Lancet Respiratory Medicine. It studied half a million schoolchildren in 47 countries over a multi-year period and relied on questionnaires that were filled out by the mothers of the children. It concluded, “We detected no evidence of an association between the use of gas as a cooking fuel and either asthma symptoms or asthma diagnosis.”

Furthermore, just a day or two after the RMI paper came out, the group walked back its claim about asthma, with one RMI official telling the Washington Examiner that the study "does not assume or estimate a causal relationship" between childhood asthma and natural gas stoves.

Now back to the Ninth Circuit decision. In November 2019, the California Restaurant Association sued Berkeley over the natural gas ban. It claimed its members will be “irreparably harmed by the Berkeley Ordinance through the loss of the ability to use natural gas appliances in newly constructed buildings.” It cited the EPCA of 1975 which preempts state and local regulations "concerning the energy efficiency" and "energy use" of the products for which the EPCA sets efficiency standards. For lawyers scoring at home, Section 6297(c) says that “on the effective date of an energy conservation standard established in or prescribed under section 6295 of this title for any covered product, no State regulation concerning the energy efficiency, energy use, or water use of such covered product shall be effective with respect to such product.”

The decision was handed down by three judges on the Ninth Circuit, including Diarmuid F. O’Scannlain, a Reagan appointee, Patrick J. Bumatay, a Trump appointee, and M. Miller Baker, who was also appointed by Trump. They wrote that the 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.)

“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.”

A few hours after the Ninth Circuit decision, the American Public Gas Association, a trade group that represents some 730 local, municipally owned gas systems in 38 states, issued a statement saying efforts to reduce emissions “should not be done in a manner that is both contrary to federal law and at the expense of consumers and local small businesses.” It continued, saying the Ninth Circuit’s decision “will have broad ramifications for other similar attempts to ban the direct use of natural gas at the state and local level. We encourage policymakers to further examine the implications of myopic bans on natural gas use for consumers and business owners alike.”

Myopic is the right word. Bans on natural gas are bad for emissions and bad for consumers.

In his terrific new book, Blue Oasis No More: Why We’re Not Going to “Beat” Global Warming and What We Need To Do About It, GlennDucat, a Ph.D. nuclear engineer who worked at Argonne National Lab, as well as at two electric utilities, points out that using gas indirectly––by converting it into electricity and then using that juice to power a heat pump, stove, or water heater––wastes more than half of the energy in the fuel. “Burning natural gas by residential commercial and industrial customers is at least twice as efficient and emits about half as much CO₂ as processes that use electricity produced from fossil fuels,” he wrote. “Converting process-heat applications to electricity before the electricity grid is completely carbon-free will increase CO₂ emissions.” (Emphasis in original.)

It took nearly four years for the courts to adjudicate Berkeley’s wrong-headed ban on gas. And while the decision could end up in the Supreme Court, the Ninth Circuit’s ruling is a big win for consumers, energy security, and yes, the environment.