When passed in 2019, Berkeley’s first-in-the-nation ban on natural gas in new buildings was hailed as a major milestone in eliminating carbon emissions from the urban landscape — but it quickly ran into a lawsuit from the California Restaurant Association.
Following a nearly five-year court saga, the city agreed to a settlement last month that includes a repeal of the ban. The outcome for Berkeley has called into question similar bans that have since been adopted by dozens of other California cities, including one that San Francisco passed in 2020.
Law experts remain divided over what the Berkeley precedent means for San Francisco’s rules, adding an extra layer of uncertainty as The City works to meet its goal of fully electrifying all of its buildings by 2040.
For now, though, city leaders say they have no plans to stop enforcing their ban on natural gas in new construction or to back off the effort to reduce emissions in existing buildings, which could eventually result in new requirements for property owners.
Supervisor Rafael Mandelman — who proposed San Francisco’s gas ban — maintains that The City’s regulations are legally defensible.
“We believe there are important differences between Berkeley’s measures and San Francisco’s measure,” he said.
In Berkeley’s case, a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled in April 2023 that the city’s ban violates a federal law that grants the U.S. government the sole authority to set energy standards for appliances such as water heaters and furnaces. In January 2024, the 9th Circuit voted not to rehear the appeal before a larger body of judges, leaving the panel decision in place.
Mandelman argues that San Francisco’s rules have more flexibility, pointing out that builders can obtain a waiver allowing them to include gas piping for rooms used by restaurants.
The restaurant industry has argued that gas stoves are essential for certain kinds of cooking.
In addition, the City Attorney’s Office also highlighted the rationale behind San Francisco’s natural-gas regulations, pointing out in a statement that they are designed as a building-safety standard aimed at protecting against catastrophic accidents in the event of a natural disaster.
Many climate advocates and legal experts share Mandelman’s confidence that these distinctions will help safeguard the measure from legal challenge, but not everyone is convinced.
“That was a sweeping decision, and the 9th Circuit really didn’t leave anything for cities that were trying to have some different form of natural gas ban that would stand up,” said UC Law’s Dave Owen, who studies environmental law.
Regardless of the legal risk, however, it’s unclear whether anyone is interested in challenging San Francisco’s ban. Hundreds of building permits have been proposed since the new rules were enacted, but no one has requested a waiver, according to city officials.
“It could be that nothing happens for The City, that essentially nobody cares enough about this to litigate,” said Owen.
When asked whether it plans to challenge San Francisco’s gas ordinance, the California Restaurant Association did not answer directly, instead saying in an emailed statement that the group urges “all cities and counties to take steps to comply with the Ninth Circuit’s binding decision.”
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But even if The City’s current policies never face a lawsuit, choppier legal waters may still lie ahead.
Mandelman acknowledges that San Francisco will likely need to pass further legislation to reach its 2040 building-electrification goal, raising the even thornier question of how to push property owners to retrofit The City’s existing buildings, many of which are more than 100 years old.
San Francisco has formed a special task force — including builders and advocates — to help develop policy measures to reduce building emissions, which account for roughly 40% of The City’s overall carbon footprint.
While no specific legislation is on the table, those measures could take the form of greenhouse-gas reduction benchmarks for existing structures that would ratchet up over time.
Such performance-based energy standards have gained in popularity over outright gas bans since last year’s ruling against Berkeley. Advocates say that performance standards are less likely to fall to legal challenges but still have the end result of pushing property owners to adopt electric appliances because of those devices’ higher efficiency.
“It’s not saying a particular technology isn’t allowed,” said Matt Vespa, a senior attorney with Earthjustice, an environmental-law nonprofit. “It’s just saying your building has to be this efficient.”
Still, requiring such upgrades in existing buildings is far more likely to spark political and perhaps legal pushback.
One thing San Francisco’s building task force has not been discussing, however: Berkeley’s legal challenges, said Cyndy Comerford, climate program manager for San Francisco’s Department of the Environment.
“Bottom line is we’re 100% committed to getting our buildings off of fossil fuels,” she said, although she acknowledged that “there may need to be some different ways of thinking about that in light of the Berkeley ruling.”
Action outside of San Francisco could also shape The City’s path towards full electrification. Last year, the Bay Area Air Quality Management District issued rules that will eventually ban the sale of gas-powered water heaters and furnaces. State air regulators took similar action.
Ultimately, advocates agree that state and federal regulation will be the most important measures to achieve widespread building decarbonization.
Still, they said, early-adopting cities such as San Francisco and Berkeley have played a pivotal role in helping to build the rapidly growing market for electric appliances, and they fear what it would mean if more cities follow Berkeley’s decision to overturn its natural-gas ban.
“I think we want to keep the momentum,” said Vespa, who applauded San Francisco’s decision to continue enforcing its own ban.
“Those are really important messages to send, particularly to other communities that may be wavering a little bit, so I really appreciate that San Francisco is standing strong,” he said.
