Restaurant group appeals ruling for Berkeley's ban on cooking with gas

The Sather Tower at the University of California, Berkeley, is seen from Oakland, California
The Sather Tower at the University of California, Berkeley, is seen from Oakland, California, U.S., October 5, 2017. REUTERS/Stephen Lam
  • California Restaurant Association appeals July ruling to 9th Circuit
  • Ruling said federal energy-efficiency statute does not preempt city ordinance

(Reuters) - A California restaurants industry group has appealed an Oakland federal court ruling that tossed its challenge to the Californian city of Berkeley's precedential ban on natural gas hookups in new buildings.

The California Restaurant Association (CRA) in a Wednesday filing appealed to the 9th U.S. Circuit Court of Appeals a July ruling in which U.S. District Judge Yvonne Gonzalez Rogers concluded the Energy Policy and Conservation Act (EPCA) did not preempt Berkeley's 2019 ordinance, which is now in effect.

Berkeley city attorney Farimah Faiz Brown said: "We will continue to vigorously defend the ordinance."

The CRA said in a statement that its lawsuit seeks to protect restaurant owners' access to natural gas to fuel their natural-gas stoves.

The group's chief executive, Jot Condie, added: "The loss of flame cooking in restaurant settings would dramatically impact restaurant kitchens, where chefs rely on gas stoves to grill vegetables, sear meats and create meals of all kinds inspired by cuisines from all over the world." Attorneys at Reichman Jorgensen Lehman & Feldberg represent the Sacramento-based group.

Rogers on July 6 ruled that, contrary to CRA's arguments, EPCA's language and its legislative history does not preempt Berkeley's ordinance because the statute regulates energy efficiency or use of appliances, while the ordinance does not "directly" regulate either.

Rather, the judge said that the city's ordinance lawfully regulates the local distribution of natural gas, which is guaranteed under the Natural Gas Act.

Rogers further declined to exercise jurisdiction on CRA's claims that the local ordinance is preempted under California laws, writing that the issue must be decided by the state's courts.

CRA sued in 2019, saying that Berkeley's ban on natural gas in brand-new commercial and residential construction, which amended the municipal code, would harm eateries by increasing costs and preventing them from preparing many popular dishes.

City Council members who pushed for the ordinance's adoption said it would fight climate change by lowering the city's greenhouse gas emissions, of which the officials said in 2019 that 27% were tied to natural gas.

California has set a goal to be carbon neutral by 2045.

New York City in January said it would join a growing list of U.S. cities banning natural gas hookups in new buildings. San Francisco, San Jose and cities in the U.S. Northeast have also moved in recent years to ban hookups of new buildings to natural gas. San Francisco and Seattle are among cities that have allowed restaurants to apply for waivers for gas stoves, according to media reports.

Municipal bans have been met by legislation in several states, including Arizona, Indiana, Kansas, Minnesota, Oklahoma, Tennessee, Mississippi and Missouri that prevents cities from prohibiting new gas hookups.

The case is California Restaurant Association v. City of Berkeley, U.S. District Court for the California Northern District, No. 4:19-cv-07668.

For California Restaurant Association: Courtland Reichman of Reichman Jorgensen Lehman & Feldberg

For City of Berkeley: Farimah Faiz Brown with the Office of the City Attorney

Read more:

Restaurant group sues California city over ban on new natural gas connections

New York City to ban natural gas hookups in new buildings by 2030: mayor

The next target in the climate-change debate: your gas stove

San Jose moves to ban natural gas in new residential buildings

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New York-based correspondent covering environmental, climate and energy litigation.