Biden admin files motion in support of Berkeley ban on gas appliances in new buildings

 June 13, 2023

President Joe Biden's administration has filed a legal brief with the Ninth Circuit Court of Appeals in support of a local ordinance in Berkeley, California that would ban hookups for gas-operated appliances in newly constructed buildings, according to the Daily Caller.

That seemingly contradicts the administration's prior assurances to the public that it had no interest in banning gas-powered appliances and did not support such bans.

It also flies in the face of tradition as, in this instance, the federal government is arguing for an exceptionally narrow interpretation of a particular federal statute as opposed to how it typically seeks the broadest interpretation possible of its power and authority.

Ninth Circuit panel says Berkeley ordinance violates federal preemption statute

In 2019, the City of Berkeley adopted an ordinance that banned hookups for gas-powered appliances in all new construction, and that ordinance was immediately challenged as unlawful by the California Restaurant Association, which argued that the law violated the preemption provision, 42 U.S.C. Sec. 6297(c), of the federal Energy Policy and Conservation Act.

The lawsuit was initially dismissed by a district court which sided with the city and ruled that the EPCA's preemption only applied narrowly to state and local laws that directly related to appliances regulated for energy use standards at the federal level.

However, a three-judge panel of the Ninth Circuit, led by Trump appointee Judge Patrick Bumatay, ruled unanimously in April in favor of the association of restaurants and chefs who challenged the Berkeley law and had argued for a more expansive interpretation of the EPCA's federal preemption of state and local laws.

"By its plain text and structure, EPCA’s preemption provision encompasses building codes that regulate natural gas use by covered products. And by preventing such appliances from using natural gas, the new Berkeley building code does exactly that," Judge Bumatay wrote. "We thus conclude that EPCA preempts Berkeley’s building code’s effect against covered products and reverse."

Biden admin asks full Ninth Circuit to overturn panel decision

With the case now reversed and remanded back to the district court level, President Biden's Departments of Energy and Justice have filed a motion to request an en banc rehearing of the matter by the entire Ninth Circuit to correct the erroneous ruling of the three-judge panel and reaffirm the ruling of the lower district court.

Like the City of Berkeley, the Biden administration, at least in this one particular instance, argued for a narrow interpretation of the EPCA's preemption provision in that the local ordinance was a "health and safety" matter that only incidentally and indirectly impacted the use of gas-powered appliances covered by the federal statute.

Ironically, while the Biden administration had argued the same thing in a brief filed with the three-judge panel, Judge Bumatay had noted in a footnote in his opinion that the federal government had previously argued the exact opposite in a 1982 case and explicitly stated at that time that the EPCA would most certainly preempt local ordinances and building codes to ban gas hookups that would indirectly ban the use of gas-powered appliances.

Biden admin contradicts itself on gas-powered appliances

This all matters because, as the Daily Caller noted, controversy had erupted in January when U.S. Consumer Product Safety Commissioner Richard Trumka Jr. suggested that his agency was considering imposing a ban on gas-powered kitchen appliances.

Amid the instant uproar, the Associated Press reported that the Biden administration walked back that assertion and sought to assure the general public that nobody was coming for their gas stoves and President Biden himself in no way supported any sort of ban on the popular appliances.

However, less than a month later, the Department of Energy proposed a new rule that, while not outright banning gas-powered kitchen appliances, would impose exceedingly strict and costly efficiency standards on all new appliances that would have the effect of dramatically limiting the production and usage of such appliances in the future.

And now, the administration is openly arguing in favor of a local ordinance that will essentially do the thing that Biden supposedly doesn't support -- effectively ban the use of gas stoves in new buildings in Berkeley, California.

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