The U.S. Department of Energy agrees with a federal court ruling last summer that a 47-year-old law has nothing to say about local new natural gas hookup bans, an Ohio-based energy and economics think tank reported earlier this week.
DOE told a federal appeals court earlier this month that the Energy Policy and Conservation Act of 1975 does not preempt local governments from banning new natural gas connections, the Institute for Energy Economics and Financial Analysis (IEEFA) said in a news release.
IEEFA, headquartered in Lakewood, Ohio, is an independent think tank that makes observations about energy markets, policies, and trends.
IEEFA's Feb. 14 news release follows an appeal in litigation by the California Restaurant Association (CRA) against the city of Berkeley, Calif., after a lower federal court ruled much as DOE now says about new natural gas hookup bans.
"The U.S. Constitution's 10th Amendment authorizes states to protect public safety, health, and welfare," IEEFA said in its news release. "A court cannot find preemption of state authority (or state-delegated local authority) unless it determines that preemption is the 'clear and manifest' purpose of Congress."
In 2019, Berkeley banned almost all new natural gas hookups, prompting legal action by the CRA. In its lawsuit, the restaurant association argued that the city's ban was illegal and that federal law preempted local law in such matters.
In July, U.S. District Court for California's Northern District rejected a preemption challenge to Berkeley's ban, ruling that the CRA failed in its argument that the federal Energy Policy and Conservation Act preempted such bans.
In early November, the CRA filed its appeal in the U.S. Ninth Circuit Court and issued a statement on its website that Berkeley's ban not only was illegal but also "ill-conceived."
"Restaurants rely on affordable natural gas for cooking and baking, as well as for heating, hot water, and reliable power," the restaurant association said in its statement. "A natural gas ban won’t just change the way restaurant kitchens do their cooking; it has the potential to harm restaurants financially and fundamentally changes their business. The CRA will continue to fight to protect the interests of its members."
DOE disagrees with the restaurant's legal assessment, according to IEEFA's news release.
DOE maintains that local bans on new natural gas hookups are not a problem for the federal government. DOE said in a Feb. 8 amicus brief to the appeals court that the Energy Policy and Conservation Act doesn't forbid Berkeley from banning local natural gas distribution infrastructure. The law clearly shows that the federal government has never asserted any authority to regulate such infrastructure, DOE said in the brief.
Notwithstanding, some states have blocked efforts by cities and counties to adopt local gas infrastructure bans and, in some areas, momentum to establish such bans is increasing, according to the news release.
