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Policies to transition buildings off polluting fossil gas are holding up in federal courts across the U.S. That’s a big win for local governments looking to spur electrification, given that these types of regulations suffered a major setback just a few years ago.
In 2023, the 9th U.S. Circuit Court of Appeals struck down Berkeley, California’s pioneering ban on gas hookups in new buildings. A panel of three federal judges sided with the California Restaurant Association in its assertion that the ordinance conflicted with the federal Energy Policy and Conservation Act, a 1975 law that prevents cities and states from setting appliance efficiency standards that differ from those of the U.S. government.
Even at the time, the decision was controversial. Eleven other 9th Circuit judges signed on to a dissenting opinion — an unusual move — to inoculate judges of future suits against, in their view, the case’s flawed reasoning.
Indeed, building developers, appliance manufacturers, and others pushing for fossil fuels — including the Trump administration — have since used the same legal argument in 13 other lawsuits against cities, counties, states, and an air district. These cases — in California, Colorado, Illinois, Maryland, New Jersey, New York, Washington state, and Washington, D.C. — challenge local rules that require all-electric new buildings, mandate existing structures to taper energy consumption or emissions over time, or set zero-emissions appliance standards in an effort to reduce air pollution.
“Industry has really gone on a spree,” said Daniel Carpenter-Gold, senior staff attorney for climate justice at the Public Health Law Center, a nonprofit affiliate of the Mitchell Hamline School of Law in St. Paul, Minnesota. Most of the suits, he noted, are being argued by one of two law firms: Reichman Jorgensen Lehman & Feldberg, which spearheaded the Berkeley case, or Baker Botts. ​“A lot of the language is verbatim from one case to the next.”
In all six post-Berkeley cases for which federal judges have weighed the EPCA argument, they’ve rejected it and upheld pro-electrification standards.
“There is a clear consensus among the courts that have ruled on the issue that the 9th Circuit’s decision in [Califo
Last month, U.S. district court judges handed down victories to local jurisdictions in three cases — two in Maryland and one in Washington, D.C.
The rulings ​“have sent a clear message: states and local governments can be confident to move forward with the range of decarbonization and electrification programs,” Tim Oberleiton, senior attorney for the nonprofit environmental law group Earthjustice, said in a statement.
These policies are crucial to curb carbon pollution from buildings, which accounts for about one-third of U.S. emissions, especially as the Trump administration works to prop up fossil fuels. Efficient electric appliances also improve local air quality, can provide greater comfort, and typically lower energy bills.
In the Berkeley case, the legal question centered on whether the city, by prohibiting gas infrastructure, can essentially dial down gas appliances’ energy use to zero, or whether that power rests with the federal government, because it sets appliance efficiency standards.
After the three-judge panel decided the latter, Judge Michelle Friedland argued in the dissenting opinion that the U.S. government’s authority to set energy conservation standards doesn’t preempt states from choosing the type of energy, and thus appliances, they use.
“EPCA’s preemption provision guarantees uniform appliance efficiency standards. It does not create a consumer right to use any covered appliance,” she wrote.
Federal judges continue to poke holes in the notion that EPCA precludes pro-electrification policies.
Judge Paula Xinis of the District of Maryland in National Association of Home Builders v. Montgomery County, which challenges an electric buildings law, pointed out that EPCA’s requirement that appliances be tested for their energy use prior to sale would be impossible if ​“energy use” were interpreted the way plaintiffs claimed: at the site of installation.
Judge Percy Anderson of the Central District of California in Rinnai America Corp. v. South Coast Air Quality Management District, a case against regulators’ zero-emissions standards for water heaters, wrote that ​“there is no reason to believe that Congress ever intended or even contemplated that the EPCA would preempt emission regulations designed to combat air pollution.”
And Judge Ana Reyes of the District of Columbia in National Association of Home Builders v. District of Columbia took a gastronomical approach to demonstrate EPCA’s narrow scope.
“Consider a hypothetical federal law that defines the point of use as restaurants, sets a national tortilla chips-to-salsa ratio of 2 grams for every 3 grams, and preempts states from regulating that ratio,” she wrote in her decision. ​“No one would say that because Congress set a chips-to-salsa ratio, it intended to ensure that every restaurant has a right to sell chips and salsa. And a state regulation prohibiting French restaurants from serving chips and salsa would not be preempted because it would operate in an entirely different regulatory space, preserving French cuisine — one that happens also to affect chips and salsa availability.”
In other words, because EPCA was only ever meant to ensure appliances adhered to the same energy-efficiency standards (akin to chips-and-salsa ratios) across states, it can’t nullify local climate and air-quality laws that may limit the use of those appliances.
Industry opponents paint local electrification policies as anti-consumer choice. But these are public health regulations meant to protect homebuyers and renters from appliance decisions often made by builders and landlords, according to Carpenter-Gold.
“These governments are just trying to help people live healthier lives,” he said.
Five of six cases ruled on their merits have now been appealed to the higher circuit courts, along with a case in Washington state that was dismissed on grounds unrelated to how EPCA is interpreted. One suit brought by the Trump administration’s Department of Justice was voluntarily dropped after the two small California towns it concerned amended their building standards to nix electrification requirements. Five remaining cases are still pending in the district courts.
The Supreme Court, which hears few cases in general, is unlikely to take up any of the EPCA-based lawsuits, according to Carpenter-Gold. He doubts that the justices will consider it worth their time, given the consensus in the district courts, he added.
“The weight of authority is clearly on one side.”
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