By Kennedy Maize
A multi-year battle at state and local levels over banning use of natural gas in individual stoves or for space and water heating in new buildings has flared up again in federal courts in California and New York.
The cases have centered around parsing the terms of the federal 1975 Energy Conservation and Policy Act (EPCA). It was aimed at establishing a comprehensive federal framework to address energy security, efficiency, and emergency preparedness as a response to the 1973 Arab oil embargo and U.S. energy crisis.
The earlier lawfare focused largely on methane as a greenhouse gas that is complicit in global warming. Methane is not a regulated pollutant, as is also the case for carbon dioxide, the major greenhouse gas. Gas largely won in those disputes.
The later iterations cited greenhouse gases but added attempts to control ground level ozone (03) pollution, a conventional “criteria” air pollutant covered by the federal Clean Air Act. Natural gas was the loser in those federal court jousts.
As the Environmental Protection Agency describes it, ozone, a major contributor to California’s legendary smog, “is created by chemical reactions between oxides of nitrogen (NOx) and volatile organic compounds (VOC). This happens when pollutants emitted by cars, power plants, industrial boilers, refineries, chemical plants, and other sources chemically react in the presence of sunlight.” Burning natural gas creates ozone.
In 2019 the city of Burbank passed an ordinance banning new gas stoves in homes and restaurants and gas hookups in new construction. The federal 9th Circuit Court of Appeals overturned the ban in 2023. The appeals court found that EPCA “expressly preempts State and local regulations concerning the energy use of many natural gas appliances, including those used in household and restaurant kitchens.”
With that ruling in hand, Politico reported recently on the latest developments in the gas wars: “The Trump administration and industry groups relied on that 2023 ruling to challenge the building electrification movement across the country, and threatened to sue California cities with gas ban ordinances. Now, some judges are raising their eyebrows.”
On July 2, the 9th Circuit, again citing EPCA, upheld a ban on the sale of large gas heaters in multifamily housing and businesses across Southern California. California’s South Coast Air Quality Management District, which regulates air quality for Los Angeles, Orange, Riverside and San Bernardino counties, enacted the ban in 2024, citing the area’s noncompliance with federal air quality standards.
The court based its opinion not on climate issues, but on ozone pollution. In writing the opinion by the three-judge 9th Circuit panel in a 2-1 ruling, Judge Lucy Koh noted, “The Basin has the worst smog (or ground-level ozone) in the country and is in ‘extreme’ nonattainment with all federal ozone standards and thus risks losing its federal highway funding and being assessed substantial penalties.” Koh added that “nothing in the text, structure, or history of EPCA suggested that Congress intended to interfere with states’ ability to use these well-established methods to achieve compliance with federal air quality standards under the CAA.”
In dissent, Judge Kenneth Lee cited the earlier City of Berkeley case and EPCA, arguing, “Just like in California Restaurant Ass’n v. City of Berkeley, EPCA preempts the District’s rule on nitrous oxide emissions because it similarly regulates ‘energy use’ of a ‘covered product.’”
Koh is an Obama appointee and Lee a Trump appointee.
Two days before the California court decision, the U.S. Court of Appeals for the 2nd Circuit in New York City on June 30 upheld New York state and New York city laws prohibiting gas appliances in new buildings. Perhaps anticipating the California decision, the New York court cited EPCA in its ruling.
The Empire State laws were premised on reducing pollution and greenhouse gases. In 2021, the city enacted Local Law 154, banning gas in new construction for space heating, water heating, and fueling appliances.
In 2025, the legislature adopted changes to the state building code, calling for “the use of modern technical methods, devices and improvements which tend to minimize consumption of energy and utilize to the greatest extent practical solar and other renewable sources of energy without affecting reasonable requirements for the health, safety and security of the occupants or users of buildings shall be permitted.” This became known as the “All-Electric Buildings Act,”
A coalition of real estate interests, construction companies, and building trades unions sued to overturn the New York off-gas laws. They based their case on the 2019 9th Circuit decision overturning the Berkeley law based on EPCA. This turned out to be rather ironic for the opponents of the New York laws, as the 9th Circuit reversed itself just two days after the 2nd Circuit tossed their case out.
The opponents of the New York laws lost at the district court level and appealed to the 2nd Circuit.
In the 2nd Circuit decision, writing for the three-judge panel, Judge Myrna Pérez took aim at the soon-to-be-overturned 2019 Berkeley decision. Perhaps presciently, she wrote, “Of course, we afford the decisions of other circuits respectful consideration, and often, their decisions are ‘persuasive’….After much consideration of the statute’s text and relevant precedent, however, we conclude that the reasons for divergence are too compelling and reluctantly believe it necessary to create ‘a split among the Circuits’….In the end, we think the opinion by Judge Friedland, dissenting from denial of rehearing en banc, has the better interpretation.”
Upholding the New York laws, Pérez said, “We hold that the challenged laws are not preempted under EPCA. Interpreting preemption provisions in federal statutes requires ascertaining Congress’s intent. EPCA, a statute that at its heart promotes national energy conservation goals, does not preclude these particular state and local efforts to regulate the use of fossil fuels.”
Circuit Judge Robert D. Sack and District Judge Loretta A. Preska concurred. Pérez was a Biden appointment, while Sack was a Clinton appointment, and Preska was appointed by George H.W. Bush.
Will these cases draw the attention of the U.S. Supreme Court? Stay tuned.
The Quad Report, covering energy policy and politics
