In the battle over the authority of local governments to make decisions about energy use within their borders, municipalities have gained important support from the federal government. The U.S. Department of Energy last week told an appeals court that federal law does not preempt local governments from passing measures that ban natural gas connections in new buildings.
When Berkeley, Calif., adopted a ban on new connections in 2019 (with limited exceptions), the California Restaurant Association sued, claiming it had no right to ban new installations. The association argued that the federal Energy Policy and Conservation Act (EPCA), under which Congress asserted power to regulate appliance efficiency, preempts such local laws. The U.S. Department of Energy disagrees.
The U.S. Constitution’s 10th Amendment authorizes states to protect public safety, health and welfare. 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.
Federal law does not prevent local governments from banning gas connections in new buildings
In a Feb. 8 amicus brief to the appeals court, the Energy Department said EPCA does not interfere with Berkeley’s right to ban local natural gas distribution infrastructure. The agency said the law clearly showed the federal government had not asserted authority to regulate the siting of such infrastructure.
Some states have barred cities and counties from adopting local gas infrastructure bans. In other locations, however, momentum for establishing bans is growing.
So far, New York City is the largest government in the United States to ban new gas infrastructure. New York State had rejected the Williams Northeast Supply Enhancement (NESE) project, a massive gas pipeline proposal for New York City and Long Island, based on environmental and climate concerns in 2020. IEEFA’s analysis of the project found it to be costly, wasteful and unnecessary. The local legislation adopted last year phasing out the use of gas in new buildings represents an important new direction for the city that is bolstered by the federal position taken in the Berkeley case.
Suzanne Mattei ([email protected]) is an IEEFA energy policy analyst.