Municipal Natural Gas Bans: Round 1


Posted on January 9th, 2020 by Amy Turner

By Amy Turner

In July 2019, Berkeley, California made news with the first-ever municipal ban on new natural gas hookups in the U.S. Hailed as “momentous” and a “landmark move,” Berkeley’s ordinance inspired other municipalities in California and beyond to consider and enact similar bans. At latest count, more than 50 municipalities – mostly in California and Massachusetts – have considered or enacted an all-electric requirement for new construction. Though they differ in their details — some exempt uses such as cooking ranges, laboratories and more; some include major renovations in addition to new construction — these bans are largely aligned with local climate action planning and municipal goals to reduce greenhouse gas emissions. They are also giving rise to legal questions and challenges. This post offers a quick survey of the state of play.

Authority under applicable state law

The bans in California and Massachusetts rely on different sources of authority. Many of the California bans are structured as amendments to the local building codes. In that state, municipalities are permitted to adopt building energy code provisions that are more stringent than the state code with California Energy Commission approval. San Jose, Menlo Park, San Mateo, West Hollywood and Santa Monica, and Marin County have obtained this approval, while other municipalities have proposals pending before the Commission. Berkeley took a different approach, relying on its local police powers to ban natural gas connections, and the city of Morgan Hill followed Berkeley’s lead. Berkeley later supplemented its police power ban with updates to the local building energy code (still pending approval before the CEC).

In Massachusetts, where municipalities generally do not have the authority to augment the state building energy code, the tension between state and municipal authority takes a different form. Brookline’s ban relies on its “its home rule powers and its police powers” under Massachusetts law, which include the authority to “direct[] and manag[e] their prudential affairs” and to “regulat[e] the inspection, materials, construction, installation, alteration or use of pipes, fittings and fixtures through which gas is supplied within buildings.” Because Brookline is a town, Massachusetts law requires that it submit the by-law implementing the ban to the state attorney general’s office for approval, which is pending.

Massachusetts cities, which are not subject to the same attorney general approval as towns, also face unresolved questions about their authority to implement natural gas bans. The Cambridge city attorney shared her office’s view with the city’s council that the a ban on new natural gas hookups would be preempted by state building code law. This has not deterred some city lawmakers, including a Cambridge city council member who told Inside Climate News that “if this boils down to a fight in court over whether or not we ban gas, I welcome the fight.”

Other localities are waiting in the wings. The city of Newton appears poised to take the same tack as Cambridge, while the town of Lexington has indicated it will wait to see the outcome of the attorney general’s review of the Brookline ban.

Court challenges

Not surprisingly, litigation has been filed to challenge these local government actions.

In November, the California Restaurant Association sued the city of Berkeley seeking to enjoin that city’s ban.[1] The complaint claims that the Berkeley ban is preempted by the U.S. Energy Policy and Conservation Act, or EPCA, which preempts state and local promulgation of energy efficiency standards for certain household appliances such as furnaces, air conditioners, water heaters, dishwashers, clothes washers and dryers, kitchen ranges and ovens and more. (See 42 U.S.C. §§ 6297(a) and 6292.) The California Restaurant association also claims in its suit that the Berkeley ban is preempted by the California Building Standards Code and the California Energy Code, and that Berkeley should not have relied on its police power but rather pursued approval from the California Building Standards Commission or the California Energy Commission for an update to the building or energy code. As noted above, Berkeley has sought CEC approval for an electrification component in its “reach code” to supplement the ban; it is not yet clear whether or how this will impact the litigation.

The building code and energy code amendment approach is also being challenged in court. Two local home builders have filed suit[2] against the town of Windsor, CA’s ban – structured as an amendment to the local building energy code –  alleging, among other things, that the municipality failed to properly consider under the state’s environmental review statute hazards and reliability concerns that could result from increased electrification, particularly in the face of increasing wildfires.

These cases, though in preliminary stages, may influence future municipal efforts and the lawsuits challenging them.

More opposition

Municipal natural gas bans offer an area ripe for continued opposition by the natural gas industry and others. An industry group has indicated it will file suit challenging the Brookline, MA ban. Some environmental advocacy organizations have suggested that natural gas interests may be behind the California Restaurant Association suit in Berkeley. Natural gas groups are also intervening at the local level. For example, opposition letters came in from such groups in the days before the Brookline vote. A California gas company has also apparently funded “grass-roots” anti-ban advocacy in that state as well. Other interest groups have also expressed reservations about these natural gas bans, leading Seattle to table voting on a proposed ban there while it considers input from labor and industry groups. Given the essential interest of the natural gas industry in maintaining the ability to connect to new customers, we are sure to continue seeing anti-ban advocacy during the lawmaking process and in the courts.

The Cities Climate Law Initiative is continuing to monitor developments in the promulgation of municipal bans on new natural gas hookups and related litigation in order to help advise municipalities on structuring such bans, or electrification requirements, in their jurisdictions.

[1] Cal. Restaurant Ass’n v. City of Berkeley, Case No. 3:19-cv-07668 (N.D. Cal. 2019).

[2] Gallagher v. Town of Windsor, Docket No. SCV-265553 (Cal. Super. Ct. Nov 19, 2019) and Windsor Jensen Land Company, LLC v. Town of Windsor, Docket No. SCV-265583 (Cal. Super. Ct. Nov 22, 2019).

 

 

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