Carlsbad’s plans for a building electrification ordinance are now on hold because of a decision by a federal appeals court last month to overturn the city of Berkeley’s ban on natural gas in new construction.
In recent months, building electrification, or the phasing out of gas-powered stoves, heaters, clothes dryers and other appliances in residential and commercial buildings, has become a hot topic around the nation, with more and more cities nationwide moving toward similar ordinances of their own.
Carlsbad Councilmember Teresa Acosta proposed the idea of building electrification at a council meeting last year, and since then, city staff has been researching and preparing an ordinance for the city’s 2023 Climate Action Plan update.
Now, though, such an ordinance may be against the law.
What Happened in Berkeley
In 2019, Berkeley became the first city in the nation to ban natural gas in new residential and commercial construction, with some exceptions.
Soon after, the California Restaurant Association sued the city, claiming the ordinance violated federal laws that give the U.S. government authority to set energy-efficiency standards for natural gas appliances.
In other words, they claimed the federal government allows for the use of natural gas appliances as long as they meet efficiency standards.
In 2021, U.S. District Judge Yvonne Gonzalez Rogers upheld Berkeley’s ordinance, saying the city was not trying to regulate energy efficiency for appliances, only the fuel they used.
But on April 17, a panel of three federal judges, part of the Ninth U.S. Circuit Court of Appeals in San Francisco, overturned that judge’s decision, arguing that banning natural gas effectively bans the use of natural gas appliances.
What Now: Berkeley has until May 31 to request a new ruling by a different, larger panel of 11 judges.
If the new panel decides to rehear the case, it could be another year or so before a final decision is made, said Carlsbad’s Senior Assistant City Attorney Ron Kemp during the May 9 City Council meeting.
“If Berkeley does not ask for a rehearing, it becomes the law, and any ordinance that has been passed – whether it’s Berkeley, Solana Beach, whoever – would be preempted by federal law,” Kemp said. “And if we passed an ordinance right now, it would be preempted by federal law.”
Since 2019, more than 70 local and state jurisdictions have followed Berkeley’s lead in requiring building electrification.
I previously wrote about Encinitas, the first city in the county, and one of only a few in Southern California, to implement a ban on natural gas in new residential and commercial construction.
The policy doesn’t extend to existing buildings and homes. But it does require replacing gas appliances whenever existing homes or buildings undergo significant remodels and renovations.
Voice of San Diego has also reported that the city of San Diego decided last year to commit to phasing out natural gas use from residential and commercial buildings by 2035.
But San Diego is taking it a step further – the city says it will eventually attempt to retrofit all existing buildings to get rid of natural gas use almost completely.
Solana Beach also passed a set of policies in 2021 aimed at boosting building electrification, though it only applies to space heaters, water heaters and clothes dryers – it does not ban the use of natural gas for indoor and outdoor cooking or indoor fireplaces and outdoor firepits.
These jurisdictions and many others in the Ninth Circuit, which includes all of California, will now have to wait and see if their electrification ordinances banning natural gas use are even enforceable.
“There’s a lot of uncertainty right now, a lot of flux,” Kemp said during the meeting. “Currently, anybody who has passed a local ordinance is preempted from enforcing it.”
The assumption is that these jurisdictions are pausing and waiting, said Joseph Kaatz, staff attorney at the Energy Policy Initiatives Center, during the meeting.
The Carlsbad council is now considering a different option – to strengthen emissions standards through a reach code instead of banning natural gas appliances.
A reach code is a building energy code that goes beyond state minimum requirements.
With this option, the city can strongly encourage building electrification without requiring it.
The council voted to wait until July 11 to make a final decision – once they know if Berkeley will appeal the decision and whether or not the court will rehear it.
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In Other News
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