After becoming the first city in San Diego County to ban gas-powered appliances in new construction, Encinitas is now taking a step back from the ordinance.
The City Council earlier this month voted to suspend its building electrification ordinance because of an ongoing lawsuit against the city of Berkeley.
Carlsbad took similar steps last month when it put plans for a building electrification ordinance on hold until the Berkeley case is resolved.
Dozens of other cities with similar bans could soon follow suit including the city of San Diego, which has electrification plans of its own. Berkeley, though, has kept its ordinance in place.
A Refresher on 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’s Next: The city of Berkeley petitioned for a rehearing on May 31. Berkeley City Attorney Farimah Faiz Brown argued that the ruling was a threat to local control and calls into question the ability for elected officials to effectively protect residents’ health and wellbeing.
If a rehearing is granted, the case will be heard by a different, larger panel of 11 judges.
If the new panel does decide to rehear the case, it could be another year or so before a final decision is made.
And if the new panel decides to overturn the previous appeals court decision, Encinitas can reverse the suspension of its building electrification ordinance, making it immediately enforceable to new construction, said Crystal Najera, Encinitas’ sustainability manager.
If the ruling is upheld, though, a ban on natural gas or on natural gas appliances similar to ones adopted by Encinitas and Berkeley could be against federal law.
Kelly Lyndon, co-chair of the San Diego Building Electrification Coalition, spoke at the June 14 council meeting and urged the City Council not to suspend the ordinance.
“I urge you to consider whether the suspension in Encinitas is truly necessary at this time,” Lyndon said. “It does feel premature given the legal landscape and the actions of other cities in similar situations.”
Berkeley’s ordinance remains in effect, since the Ninth Circuit’s ruling is not final and did not include a stay or injunction that suspended the gas ban.
Since 2019, more than 70 local and state jurisdictions have followed Berkeley’s lead in requiring building electrification.
Voice of San Diego has also reported that the city of San Diego committed last year 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 change 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 cities and 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.
In Other News
- ICYMI: Palomar Health’s financial reports over the past year show a significant downturn. And as the end of a partnership with Kaiser Permanente nears, it’s unclear how much more money the hospital district could lose. (Voice of San Diego)
- The Oceanside Police Department has proposed ending the sack lunch food program at Brother Benno’s Center to reduce problems with the homeless population in the area. Many business owners in the area supported the idea, but the center’s volunteers and other residents called the suggestion “inhumane.” (Union-Tribune)
- Construction began this week on a barrier wall along the railroad tracks in San Clemente. Passenger rail service between San Diego and Orange County has been suspended three times in the last few months because of landslides. The wall is intended to protect the tracks from any more sliding debris while the slope is stabilized. (Union-Tribune)