In 2019, the city of Berkeley, California enacted a first-of-its-kind electrification ordinance that prohibited the use of natural gas in newly constructed buildings. When doing so, the city cited the greenhouse gas reduction potential and the health and environmental benefits of taking this unprecedented political action.
And it seemed that dozens of other jurisdictions agreed. Over the past four years, electrification ordinances have been passed in at least 90 local jurisdictions, with three statewide requirements enacted in California, Washington, and New York.
Unfortunately, just a few months after Berkeley’s resolution passed, the California Restaurant Association filed a lawsuit against the city, which, according to recent reporting, was also supported and funded by monopoly gas provider SoCalGas. In the lawsuit, the plaintiff alleged that the Berkeley municipal government had run afoul of federal law, specifically the Energy Policy and Conservation Act (EPCA) that disallows favoritism for singular energy sources. As result, Berkeley’s ordinance was ultimately deemed unlawful because it attempted to supersede federal regulatory authority over energy conservation standards for natural gas appliances.
While a July 2021 district court ruling initially found that this law did not preempt Berkeley’s electrification ordinance, the California Restaurant Association appealed. In April 2023 the U.S. Court of Appeals for the Ninth Circuit blocked Berkeley’s electrification mandate in a 3-0 decision on the basis that the EPCA enshrines the federal government’s authority to set appliance efficiency standards (including gas appliances), and that the law’s purview is wider than the district court had interpreted.
This ruling cast a grim pallor on the future of electrification ordinances nationwide. Although other electric-only requirements will still stand based on how they were structured — newly sown uncertainty in this area of public policy has caused many local governments to take a step back.
In California, Carlsbad, Encinitas, San Luis Obispo, Brisbane, and Santa Cruz are among the cities whose electrification ordinances or all-electric codes were threatened by the Berkeley appeal ruling, causing them to pause or suspend their policies. Eugene, Oregon also withdrew its electrification ordinance in June, due to the Berkeley ruling in addition to strong pushback from the gas industry.
Nevertheless, other jurisdictions are carrying on. San Francisco, for instance, is stalwart in its claim that its electrification ordinance is dissimilar enough from Berkeley’s to comply with federal law. Other jurisdictions were wholly unfazed by the ruling, pushing ahead with their all-electric ordinances even after the decision came down. Lafayette, Colorado’s ordinance came into effect just earlier this month, and in June, Oak Park, Illinois became the first city in the Midwest to pass an all-electric requirement for new construction. And in May, the New York State Legislature successfully enacted a statewide prohibition on fossil fuel infrastructure (including water heating and cooking) in all residential and most commercial new construction.
In seeking to navigate legal arguments underpinning the Berkeley ruling while achieving the same electrification goals, legislators across cities, counties, and states have been pushed to develop innovative policy tools and approaches.
While a federal judge recently sided with the State of Washington against gas industry stakeholders regarding its heat pump installation requirements in new construction, the state has sought to insulate its electrification policy from future legal challenges. According to recent reporting, the Washington Building Codes Council is in the process of restructuring its new construction compliance point system, prioritizing electric-only development while penalizing or otherwise disincentivizing installation of fossil fuel infrastructure.
For instance, under the new code, a home under 1,500 square feet would require five credits to meet muster, nearly twice as many as they do now. Installing an electric heat pump would garner three credits, while putting in a natural gas furnace earns zero — making it much more onerous for developers to construct new buildings dependent on gas infrastructure.
Taking a different approach, the latest Colorado building code requires new buildings to be “electric ready,” or to be constructed with the electrical capacity necessary to support the load of an all-electric building. Colorado’s code does not, however, mandate that new builds rely solely on electricity. Generally, the intention is not to completely forestall the burning of natural gas but to incentivize building electrification.
In Berkeley’s case, another appeal before an 11-judge panel could be possible, and the city attorney filed a petition in June. That effort notwithstanding, the April appellate decision has likely altered the trajectory of the U.S. electrification movement indefinitely.
Now, it seems that while some cities will move forward until challenged, other jurisdictions may be brought to court or reconfigure their policies with more innovative approaches to achieve the same goals while not running afoul of federal law. Governments will be pushed to innovate, adapt, and search out additional ways to facilitate building electrification beyond an incisive prohibition on gas infrastructure.
