Earlier this year, Eugene became the first city in Oregon to effectively ban natural gas appliances in new residential construction. Gas utility NW Natural and others pushed back and were able to get the ordinance referred to the November ballot for voters to either affirm or overturn. But recently, the Eugene City Council repealed the ordinance following a federal appeals court ruling that overturned a similar ban in Berkeley, California. The ruling could impact cities across the 9th Circuit, which includes Oregon, Washington and California.
Joining us to explain those impacts is Amy Turner, director of the Cities Climate Law Initiative at Columbia Law School. We’re also joined by Emily Semple, the Eugene city councilor who originally introduced the natural gas ban, to talk about what’s next for the city’s climate change goals.
Note: This transcript was computer generated and edited by a volunteer.
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. At the beginning of this month, the Eugene City Council voted to repeal a measure that, with voter approval, would have banned hookups for the methane based fossil fuel known as natural gas in new low-rise residential buildings. Eugene’s ban would have been the first of its kind in Oregon. It was modeled on Berkeley, California’s first in the nation ordinance. This spring, judges on the Ninth Circuit Court of Appeals found that Berkeley’s ordinance goes against federal law. That forced members of the Eugene City Council to backtrack. They say they’ll now focus on other ways to reduce carbon emissions. We’re gonna get two perspectives on this now. Emily Semple introduced the gas hookup ban as a member of the Eugene City Council. Amy Turner is a director of the Cities Climate Law Initiative at Columbia Law School. She’s written about the Ninth Circuit’s ruling and what it means for the regulation of natural gas going forward. Welcome to you both.
Emily Semple: Thank you.
Amy Turner: Thank you.
Miller: So, Emily Semple, first, why did you decide to introduce this ban in the first place?
Semple: We have a climate action plan and it’s really difficult to keep up with our goals. We’re not reaching them. So we want to start with the simplest low hanging fruit. Decarbonization is really important for our goals. And aside from the big one, transportation, energy use in buildings is the second biggest source. So, how to do that? You can’t do it all at once. We never planned to take away people’s gas, but starting with residential, if we require non-fossil fuel appliances, that will get us towards our goals by reducing some greenhouse gas emissions.
Miller: And so the council passed a ban back in February. I imagine you were expecting pushback from the gas industry. But were you expecting it to be so effective, so quickly? Northwest Natural spent a million dollars to successfully refer the ban to voters.
Semple: We expected pushback. We did not expect what we got, we did not expect that kind of investment in the opposition. It really tilted things. There’s not enough time to educate people and show them how this would help before they were full on fighting it. Some of their signature gatherers did say that the council was banning gas, which is not true. This was a relatively small amount of greenhouse gas emissions, but every little bit helps.
Miller: In other words, you think there was a misunderstanding. Some people thought that if they had existing natural gas hookups and say, gas ranges or gas furnaces, they thought that those would be taken away, as opposed to just a part of new residential construction not having the opportunity to put gas in to begin with.
Semple: That’s correct. Although the gas company officially was not saying they were, we were banning all gas. That was a misconception, but it certainly gave more energy to the opposition to the ban and it took on energy of its own and they got it on the ballot really fast. It was very impressive, but they had a million dollars and a lot of help.
Miller: So that was a defeat of a kind in March. And then a month later, the Ninth Circuit Court of Appeals said that Berkeley’s law, which served as a model for yours is preempted by a federal law. What went through your mind when you heard that?
Semple: Well, that was certainly disappointing. We do think that we have the right to regulate those utilities. But it certainly puts things on pause and also in light of the huge opposition, we felt it would give us an opportunity for more outreach and education and to calm people’s fears. So this hasn’t ended, but we’re not going to work on it right now.
Another problem was once it got on the ballot, it prevented staff from working on any decarbonisation plans. So, that pause was putting us backwards and so that was a benefit of waiting. But yeah, we were surprised.
Miller: Well, Emily, I wanna hear more about your plans going forward. But as I noted, Amy Turner is with us, the director of the City’s Climate Law Initiative at Columbia Law School, who’s written about this. Amy, the Ninth Circuit said that Berkeley’s gas ban was preempted by a federal law known as the U.S. Energy Policy and Conservation Act. It’s a big, long law. But, what does the federal law say that’s most important for our conversation today?
Turner: Sure. Well, the federal law, which we refer to as EPCA for short, sets energy conservation and energy efficiency standards for many common building appliances: all of the big ones, furnaces, air conditioners, HVAC units, clothes dryers, those sorts of things. The federal law sets these uniform energy efficiency standards for these appliances and says, expressly, that states and local governments may not set more stringent energy efficiency standards for those appliances.
And the idea behind EPCA or this portion of EPCA is really to ensure that manufacturers have uniform standards across the market, that they’re not trying to figure out 50 different standards across 50 different states for their products. And what the Ninth Circuit did here was to take a vastly broader reading of EPCA preemption than courts have really ever taken before.
Miller: Right. So, I mean, as I understand it, the law says the federal government, not states, can say this is how efficiently a dishwasher or a furnace has to run. But Berkeley wasn’t saying if you buy a range in Berkeley, if you want to use one, it has to be this efficient. They were saying if you build new construction of certain kinds, you can’t have a natural gas hook up. So what was the court’s argument for how that went against this federal law?
Turner: So the court’s decision, its reasoning is a bit convoluted, and it’s wrongheaded in my opinion. But what they essentially were saying was that any local law that impacted the end users access to energy, [or] the end user of an appliance’s access to energy was caught in the crosshairs of EPCA and could be preempted. So, in this case, if you bought a gas powered clothes dryer, for example, and tried to install it in your new house in Berkeley that didn’t have access to gas, you would be able to access zero energy. And that effectively amounted to a standard that was more stringent than the EPCA standard, but they’d allow you to access energy. It’s quite a convoluted reasoning. But basically the court’s reasoning says that local requirements that interfere with that end use of energy could be preempted by EPCA. That’s far broader than anything we’ve ever seen from the courts before.
Miller: Oh, so this was an unprecedented understanding, interpretation, of this existing federal law?
Miller: Berkeley has asked a larger panel of judges from the Ninth Circuit, and many of our listeners probably remember this, that Oregon is a part of the Ninth Circuit. But Berkeley has asked a larger panel from the Ninth Circuit to look at the case, the next step of appeal. How likely is that?
Turner: Well, if you look at the numbers, it’s extremely unlikely. The Ninth Circuit takes on the order of 4% of cases for rehearing that it’s asked to rehear. However, I think this is a particularly novel case, [and] as you said, this is an unprecedented ruling. It gets at issues that are really being worked through in communities across the Ninth Circuit. And so, the Ninth Circuit may find this case to be a particularly appealing one to rehear, but the short answer is we don’t know. But, there are some aspects to this case that would make it an interesting one for rehearing.
Miller: When you say that this case gets to issues that are being talked about or [is] really at issue in other jurisdictions within the Ninth Circuit’s geography, how many cities or counties or municipalities have adopted laws that are basically using the same mechanism, to do the same thing that Berkeley did?
Turner: So there are about two dozen communities that have adopted the same formulation as Berkeley. However, there are many more that are thinking about it, like Eugene, and this is really just going to cause a lot of hesitation among communities that are perhaps a little further back in the process than Berkeley was, in even pursuing this sort of option. So, officially a couple dozen, but there are many, many more who would be considering it.
Miller: Am I right, Amy Turner, that Berkeley has already pursued a different way towards the same goal?
Turner: Yes. So there are a few different policy mechanisms that local governments can pursue to advance this goal of electrifying new buildings, or of building new buildings without connecting to natural gas or other fossil fuels. Another way to do it is to put it into a building code. So to effectively require or strongly incentivize that new buildings be built to an all electric standard. If the building is all electric and everything inside of the building is all electric, there is no need to connect it to a gas line.
Miller: Emily Semple, am I right that that option is not available to cities in Oregon?
Semple: No, I don’t think it is.
Miller: So where does that leave you? I mean, you’ve said that you’re not done with this. But the obvious avenues for just this particular path of electrifying new construction, they seem closed to you. You mentioned that now this gives you a chance for outreach and education and also a chance to calm people’s fears, but policy-wise, what might come next?
Semple: Well, we are going to wait to see what happens with the Berkeley case. Our first thing is gonna be more community conversation, as you mentioned, because what we can do does depend on what the community will accept. So we want to know what they know now and how we can fill in the blanks.
And then the other big part is how are we gonna pay for these changes? So we’re waiting to see money from the feds through the IRA, and working to ensure that money comes to Eugene, which we then can leverage for more money, because how much we can do always depends on money. Also working on energy efficiency and conservation, looking for incentives for people to switch to electric, even if it’s an older building. Encourage the development of more renewable energy sources, we are now getting methane from our wastewater and we have a large food composting program.
Then we still need to work on other greenhouse gas reductions. Transportation is the biggest one. So, it’s a progress. We have other measures we’re going to try to use to reduce greenhouse gasses. Electrification is only one part of it.
Miller: Amy Turner, the Ninth Circuit’s ruling really pertains to states on the west coast. But electrification efforts in various ways are happening all across the country, especially on the two coasts of the country. What do you see as the big future legal questions that are going to be before courts, maybe the highest court in the coming years?
Turner: Well, certainly the Ninth Circuit decision has given rise to some uncertainty even among policymakers that are not located in the Ninth Circuit, asking questions like, what if courts in my jurisdiction adopt the reasoning of the Ninth Circuit? So that’s one. A lot of this comes down to questions of state law. So you and Emily alluded to earlier that communities in Oregon have less authority than communities in places like California to amend their building energy codes, to include electrification provisions. And so that’s really something that goes state by state. And I think we’re going to see a lot of questions playing out either in state courts or just policy makers trying to understand how their state law applies and what policy and legal mechanisms will be available to them.
One of the challenges here is that every local government is subject to a different state law framework. And so what’s done in Berkeley cannot necessarily be exported to Eugene.
Miller: Amy Turner and Emily Semple, thanks very much.
Semple: Thank you.
Turner: Thank you.
Miller: Amy Turner is the director of the City’s Climate Law Initiative at Columbia Law School. Emily Semple is a member of the Eugene City Council.
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