The Biden administration filed a motion earlier this week asking a federal appeals court to reinstate the ban on natural gas hookups in new buildings proposed by the city of Berkeley, California.
In an amicus brief filed with the U.S. Court of Appeals for the Ninth Circuit on Monday, the Department of Justice (DOJ) argued the Energy Policy and Conservation Act (EPCA) of 1975 doesn’t prohibit local elected officials from addressing a “health and safety concern.” The court ruled in April that Berkeley’s law — which technically bans gas pipes, not appliances, in new building construction — effectively violated the EPCA.
“The panel opinion in this case upended those settled expectations. It held that a particular municipal ordinance addressing a health and safety concern identified by local elected leaders is preempted by the Act — even though the ordinance does not regulate the energy efficiency, energy use, or water use of a covered product,” the DOJ stated in the brief.
“The ordinance prohibits the installation of certain energy infrastructure in new construction,” it continued. “It thereby affects, indirectly, the circumstances in which some products may be used in some locations. The panel did not explain why this ordinance’s indirect effects warranted preemption or why other health and safety ordinances would not.”
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On April 17, the appeals court unanimously ruled that, while the EPCA specifically prevents local jurisdictions from preempting federal home appliance regulations, the Berkeley law targeting piping in new buildings had that same effect.
Judge Patrick Bumatay, who penned the opinion of the court, said the law took a “circuitous route to the same result.”
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“Instead of directly banning those appliances in new buildings, Berkeley took a more circuitous…
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