Demise of the Berkeley residential gas ban isn’t the end of the story

From the Climate Activist newsletter

Acting on our urgent need to stop burning fossil fuels will require major changes. The natural gas (methane) industry and utilities that deliver gas to customers must be restricted, and in the end replaced, by systems that produce and deliver renewable electricity. The natural gas industry is not going without a fight, and the current battleground is residential gas appliances.

When the city of Berkeley, CA, passed a ban on installing natural gas pipes within new buildings in 2019, many jurisdictions quickly passed similar bans. However, new ordinances came to an abrupt halt when a lawsuit against the Berkeley ban – brought by the California Restaurant Association and supported by a SoCalGas campaign – was successful on appeal to the Ninth Circuit in 2023.

The lawsuit argued that the local ban was in conflict with the federal right to set efficiency standards for appliances through the Energy Policy Conservation Act (EPCA). A number of Ninth Circuit judges dissented from the ruling, lessening its impact on future lawsuits, but many cities that had passed gas bans have now stopped enforcing them to avoid being sued.

States have some legal cover that local jurisdictions do not in that they have immunity from anti-trust laws. New York will be the test case, as it is the only state that has directly banned installing gas appliances in some new buildings (passed in 2023). Fossil fuel and building industry groups have sued to stop the law, using the same legal argument as in the Berkeley case.

Half of U.S. States (the “red” ones) have passed laws prohibiting restrictions on gas hookups like Berkeley’s, so outright gas bans cannot be used by cities in these states.

The federal Department of Energy (DOE) was thwarted when it proposed new efficiency standards that 50% of gas stoves on the market could not meet, thereby encouraging a change to electric stoves. Political pushback led to watering down the standard so that 97% of existing stoves now pass.

However, smaller jurisdictions have other tools that they can use to promote building electrification and discourage the use of gas appliances. Local building codes and air emissions standards are exempted from EPCA, as are local rules about gas distribution lines and utility siting. Cities and states are exploring some of the following options:

Update building energy codes for new buildings. Requiring a higher level of new building energy efficiency will force installing heat pumps and electric stoves instead of gas combustion devices, since electricity is more efficient at point of use than gas.

There was a 2024 setback in greening the highest level of U.S. building codes, which are set by the International Code Council (ICC). It looked as though the ICC was going to require pro-electrification wiring to be built into new homes but this code update was taken out at the last moment by the ICC Board of Directors, under pressure from industries like the American Gas Association.

This moves the battleground to the states. California passed a new code that came into effect in January 2023, requiring heat pumps in all new buildings. Washington state, which had been poised to ban gas appliances in new buildings through its building codes [8] instead set new building efficiency targets that would have a similar outcome. So far, courts have rejected industry challenges to the Washington rules.

Use greenhouse gas emissions regulations to require retrofits of old buildings. Since regulation of carbon dioxide emissions by the Environmental Protection Agency was curtailed by the U.S. Supreme Court in 2022, the lead has been taken by several big cities.

Seattle, Boston, New York City and Washington D.C. have passed emission reduction requirements for buildings that will require replacing gas appliances over time. For example, Seattle’s Building Emissions Performance Standard (2023), will effectively make all buildings over 20,000 square feet replace fossil-fuel appliances with electric by ratcheting down allowed building emissions to net-zero by 2050.

Improve air quality for public health by regulating air pollution sources. Studies have shown that combustion products from gas stoves and furnaces add gases like nitrogen dioxide (NO2), benzene, and carbon monoxide to indoor air, which can have serious health impacts. Other combustion products, like CO2, are not harmful but are greenhouse gases, and some, like unburned methane (CH4) and NOx are both. However, no jurisdiction has the authority to regulate indoor air quality in residential buildings.

The San Francisco Bay air quality district (BAAQMD) does have the authority to set outdoor air quality standards for emissions that affect health. The district found that residential gas appliances are a large source of nitrogen oxides (NOx) in the Bay Area, so it has moved to regulate residences as though they are small factories emitting pollutants. BAAQMD is setting low to zero NO emissions standards for gas furnaces and gas water heaters which will kick in after 2027 whenever an old appliance needs to be replaced. This health-based measure will also eliminate the substantial greenhouse gases from gas appliances.

Momentum towards banning and replacing residential gas appliances is now integrated into government at all levels, at least in “blue” states. The DOE is working on passing rules that will make electric appliances more efficient and cheaper to run. A study by Lawrence Berkeley National Laboratory shows that building decarbonization could be mostly accomplished by 2050. The speed of the transition will depend on how quickly the following objectives are reached: electrification of old buildings, bringing very efficient building technologies to market, and the decarbonization of  the electricity supply.

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