On Monday, the U.S. Court of Appeals for the Ninth Circuit threw out a Berkley, California ban on gas stoves. It was stated that the federal Energy Policy and Conservation Act overpowered state and local laws about regulating natural gas.
According to reports from the Courthouse News Service:
The three-judge panel’s ruling reverses a federal judge’s dismissal of a lawsuit by the California Restaurant Association claiming the Energy Policy and Conservation Act preempts the San Francisco Bay Area city’s ban. The group said the ordinance would affect chefs’ ability to prepare food the way they are typically trained — using natural gas stoves.
In May 2022, the appeals panel, composed Judge M. Miller Baker — sitting by designation from the U.S. Court of International Trade — and fellow Donald Trump appointee U.S. Circuit Judge Patrick Bumatay, and Senior U.S. Circuit Judge Diarmuid O’Scannlain, a Ronald Reagan appointee, heard arguments from lawyers.
Donald Trump appointee U.S. Circuit Judge Patrick Bumatay stated, “States and localities can’t skirt the text of broad preemption provisions by doing indirectly what Congress says they can’t do directly. Berkeley can’t evade preemption by merely moving up one step in the energy chain and banning natural gas piping within those buildings.” The Courthouse News Service further reported on Bumatay’s opinion:
Bumatay agreed the Energy Policy and Conservation Act preempts the Berkeley ordinance, and held that at least one of the California Restaurant Association members had suffered an injury. The act expressly preempts state and local regulations concerning the energy use of many natural gas appliances, including those used in household and restaurant kitchens, and the Berkeley building code would have prevented those appliances from using natural gas at all, he said.
“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,” Bumatay wrote. O’Scainlain agreed with Bumatay’s assertions. “I am not convinced that we have correctly followed the Supreme Court’s instructions in this admittedly troubled area. The Supreme Court is always free, of course, to change its precedent. But our court does not enjoy such power,” O’Scannlain said. He continued, “I remain concerned that this area of law is troubling and confused, with tensions in the Supreme Court’s precedents, splits in the circuits, and important practical questions unanswered.”
Baker said in concurrence that the Berkley ordinance circumvented Congress to regulate natural gas covered by federal law. “I think it is ‘relatively clear’ that at least one of the association’s members will be harmed by the challenged ordinance, and the city doesn’t need to know the identity of that member to understand and respond to the association’s complaint at the pleading stage,” Baker said.
Jot Condie, president and CEO of the restaurant association, applauded the reversal of the gas stove ban, “The Ninth Circuit has unanimously affirmed the central issue in this case: local ordinances cannot override federal law. Cities and states are not equipped to regulate the energy use or energy efficiency of appliances that businesses and homeowners have chosen; energy policy and conservation is an issue with national scope and national security implications. Natural gas appliances are crucial for restaurants to operate effectively and efficiently, as they allow for a wide variety of cuisines and innovations in the restaurant industry.”
"*" indicates required fields