Plenty of legal options remain for communities to protect health and safety – and achieve crucial zero emissions goals – by transitioning buildings away from fossil fuels
Earlier this week, a federal court in San Francisco dealt a blow to the City of Berkeley’s first-in-the-nation electrification ordinance prohibiting the installation of gas infrastructure in new buildings. Should it stand, the ruling closes off one route for limiting fossil fuel use in buildings that states and local communities can use to address the climate crisis.
It would be a mistake, however, to read the court’s decision as a broad barrier to reaching crucial zero emissions goals. The Ninth Circuit Court of Appeals ruling is a setback, but not an insurmountable one. Plenty of legal options remain for cities and states to electrify – this popular movement that makes economic and environmental sense will not be stopped by a single court ruling.
First, some context. Burning gas and other fossil fuels in homes and businesses is one of the leading sources of climate pollution. It also has serious implications for indoor air quality, with recent studies estimating gas stoves are a leading contributor to childhood asthma. Fortunately, it is one of the easier problems to solve: technologies like electric heat pumps and induction stoves are better for our health and the climate, far more efficient than their gas predecessors, and are cost-effective.
That’s why scores of cities and states have enacted measures to require or encourage these clean technologies in new buildings, thereby avoiding the need for costly gas hookups. California, New York, and Washington state are all among the leaders in adopting this common-sense solution.
The Ninth Circuit decision in Berkeley concerns a federal statute, the Energy Policy Conservation Act (EPCA), that sets national efficiency standards for many household and commercial appliances—including water heaters, HVAC equipment, and stoves. EPCA doesn’t allow states to set their own efficiency standards for appliances where they’ve been set federally. And that makes sense: having different efficiency requirements for, say, refrigerators in Arkansas and Oklahoma wouldn’t be that workable for manufacturers.
The three-judge panel of the Ninth Circuit interpreted the law in a new and expansive way, one opposed by the Department of Energy itself. Overturning an earlier District Court decision, the Ninth Circuit ruled EPCA’s national standard prevented states and local governments from enacting overall bans on infrastructure that enable fossil fuel use within buildings, like gas pipes. The decision does not make a lot of sense legally and should be revisited by the full Ninth Circuit, so communities retain the freedom to enact the health and safety approach used by Berkeley.
But the good news is the ruling applies only to a small number of existing ordinances, and communities still have plenty of other valid approaches to achieve electrification.
EPCA explicitly allows cities to electrify buildings through local building codes that set overall efficiency standards that favor electric appliances over ones burning fossil fuels. That’s what many cities in California have done. While these rules are a bit more cumbersome to enact than an outright electrification requirement, they are not impacted by the decision in Berkeley. New York City is taking another approach: instead of regulating the efficiency of appliances, it sets indoor air quality standards for fuels burned in new buildings that make burning fossil fuels impracticable. California’s Bay Area Air Quality Management District also recently enacted zero-emission standards for newly sold appliances that take effect starting in 2027. These kinds of regulations, authorized under both federal and state law, are also not impacted by the Berkeley decision.
There are other approaches available too. States and even local communities have authority over regulating utilities and can limit the use of gas in new buildings under that authority – a pathway the Ninth Circuit decision expressly leaves open. Similarly, jurisdictions can use their taxation authority to both discourage fossil fuel use and promote clean alternatives. Again, nothing in EPCA prevents that.
Ending gas combustion in homes is critical to addressing the climate crisis and protecting kids’ health. With so many options to keep fossil fuels out of homes, cities have plenty of options to continue the important work Berkeley kicked off four years ago. As one Berkeley City Council member put it, “This is a movement that can’t be stopped.”
Jan Hasselman is a senior attorney with Earthjustice's Northwest office in Seattle, WA, which he joined in 1998. Since that time, he has successfully litigated a number of regional and national issues including listings of salmon under the Endangered Species Act, stormwater pollution, coal fired power plants, and coal and crude oil terminals.
Established in 1987, Earthjustice's Northwest Regional Office has been at the forefront of many of the most significant legal decisions safeguarding the Pacific Northwest’s imperiled species, ancient forests, and waterways.