San Diego area gas bans up in the air after court ruling
A court decision overturning a ban on natural gas installations in new homes and buildings in Berkeley is scrambling attempts by communities in the San Diego area that enacted similar ordinances or were considering them.
“We’re still trying to figure it out,” said Crystal Najera, sustainability manager for the city of Encinitas, which passed a strict ban on natural gas in new construction in 2021.
But at least one community that thought about adopting a natural gas prohibition has put the idea on the shelf — at least for the time being.
“At this point, we’re not going to go forward with it,” Del Mar Mayor David Druker said. “We don’t want to be getting into a legal battle with anybody on this when it has some contention, even within the community.”
What happened in Berkeley?
Back in 2019, the city of Berkeley passed an ordinance that outlawed installing natural gas infrastructure in new homes and buildings, to help reduce reliance on fossil fuels.
According to the California Air Resources Board, residential and commercial buildings account for about 10 percent of the state’s greenhouse gas emissions due to fossil gas combustion.
Berkeley’s ordinance was the first of its kind in the nation, effectively requiring the use of all-electric appliances such as stoves and heaters. Almost 130 state and local governments have since adopted similar measures, including more than 70 in California.
But the California Restaurant Association challenged Berkeley’s ordinance in federal court, saying that eateries “rely on gas for cooking particular types of food, whether it be flame-seared meats, charred vegetables, or the use of intense heat from a flame under a wok.”
The restaurant association claimed that “in its rush to be the first all-electric city in California,” Berkeley bypassed federal and state laws — including the 1975 Energy Policy and Conservation Act that authorizes the federal government to regulate energy efficiency standards for appliances such as heaters and stoves.
In April 2023, a three-judge panel at the 9th Circuit Court of Appeals in San Francisco agreed, overturning Berkeley’s ban.
What happens now?
Unless Berkeley takes the 9th Circuit’s decision to the U.S. Supreme Court and wins, the city’s ban has been nullified.
In the meantime, here’s what the ruling means for various San Diego communities that have taken up the subject.
The Encinitas City Council on a 5-0 vote in September 2021 passed an electrification ordinance. It included the elimination of natural gas installations on new residential and commercial construction within the city limits. The measure allowed for only a few exceptions.
Shortly after the 9th Circuit decision overturned the Berkeley measure last year, Encinitas suspended the section of its ordinance dealing with natural gas.
In light of last week’s decision, staffers will try to craft a recommendation they can put before the Encinitas City Council in the coming weeks. One option is to revise the ordinance to emphasize “incentivizing electrification buildings rather than a strict requirement,” sustainability manager Najera said.
“I supported the decision the council made when we adopted our ordinance banning natural gas and my support for it has not waned one bit,” Encinitas mayor Tony Kranz said. “What I’m doing as mayor is trying to avoid litigation because the only people that benefit from litigation are the lawyers.”
City of San Diego
The city’s Climate Action Plan calls for reaching net-zero emissions by 2035 and officials have set very aggressive goals when it comes to natural gas.
In 2022, the San Diego City Council voted 8-0 to not only eliminate natural gas in all new construction but cut natural gas in existing buildings by 45 percent by 2030 and then phase out 90 percent of it from all buildings — including houses, condos and apartments — by 2035.
In an email to the Union-Tribune, the city’s Sustainability and Mobility Department said it was “disappointed” in the Berkeley court case but did not specify what implications the ruling has on city’s policies.
“We will continue to forge ahead on innovative ways to decarbonize buildings via policy requirements on new construction and existing buildings, technical assistance resources, funding and incentives, and continuously seeking new partnerships,” the statement said. “Decarbonizing buildings is a policy priority shared by all levels of government and critical to public health and safety as well as quality of life. The City remains committed to moving forward.”
A potential ban on natural gas never got past the planning stage and the city’s mayor mentioned potential litigation costs that a relatively small town like Del Mar could expose itself to by going forward with an explicit prohibition on natural gas hookups.
“We’re not in the position where we want to be at the forefront of legal battles that other cities with deeper pockets can afford to do,” Druker said. “Obviously, we are all interested in ensuring that we reduce the amount of carbon emissions in the city and we continue to look for ways to do that.”
Solana Beach in 2021 adopted an ordinance that includes requirements for all new residential and commercial construction to use electricity as the source of power for space and water heating (including spas and pools) and clothes dryers.
After the Berkeley ruling, “It means that we’re simply encouraging compliance with our electrification ordinance requirements, but not requiring the measures outright,” said Mayor Lesa Heebner.
She also brought up similar legal concerns. “We’ve got to follow the law, right?” Heebner said. “We’re a small city; we can’t afford to ask for litigation.”
The city attorney’s office last summer said components of the Solana Beach ordinance that deal with electric vehicle charging and pre-wiring structures for energy storage are unaffected by the Berkeley case.
After contemplating a vote to prohibit natural gas in new construction, Carlsbad’s city council last September opted instead to participate in the California Energy Commission’s process of updating statewide building and energy codes.
That decision remains in effect, Carlsbad’s communications director said Thursday, and thus far there are no agenda items on the city council’s docket regarding a natural gas ordinance.