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The Encinitas City Council responded to the 9th Circuit Court of Appeals ruling against local ordinances banning natural gas hookups in new buildings. The Coast News graphic
The Encinitas City Council responded to the 9th Circuit Court of Appeals ruling against local ordinances banning natural gas hookups in new buildings. The Coast News graphic
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Encinitas suspends all-electric reach code based on 9th Circuit ruling

ENCINITAS — The Encinitas City Council voted to temporarily suspend its “green building” electrification ordinance on June 14 after a federal appeals court recently struck down a similar law banning the installation of natural gas piping in new buildings. 

In 2021, the City of Encinitas became the first municipality in San Diego County and the 50th in California to adopt an all-electric reach code — an energy code that exceeds the state’s minimum requirements for energy used in building construction, design and functionality.

The city’s ordinance strongly limited the use of fossil fuels in new developments, essentially banning natural gas from future homes and buildings and replacing it with electric-only appliances, such as water heaters and cooking ranges.

But in a lawsuit brought by the California Restaurant Association against the City of Berkeley, the 9th Circuit Court of Appeals reversed a lower court’s decision and rejected the city’s prohibition of natural gas hookups in newly-constructed buildings, stating the federal Energy Policy and Conservation Act preempts the Bay Area city’s ordinance.

“The (Energy Policy and Conservation Act) expressly preempts State and local regulations concerning the energy use of many natural gas appliances, including those used in household and restaurant kitchens,” the court’s opinion reads. “Instead of directly banning those appliances in new buildings, Berkeley took a more circuitous route to the same result and enacted a building code that prohibits natural gas piping into those buildings, rendering the gas appliances useless.

“The panel held that, by its plain text and structure, the (Energy Policy and Conservation) Act’s preemption provision encompasses building codes that regulate natural gas use by covered products. By preventing such appliances from using natural gas, the Berkeley building code did exactly that. The panel reversed and remanded for further proceedings.” 

The City of Berkeley petitioned for rehearing on May 31. If granted, the city’s appeal would be heard by a larger 9th Circuit panel consisting of Chief Judge Mary H. Murguia and 10 randomly-selected judges. There is no timeframe for this action if granted, but an outcome could take up to a year or longer.

Based on the ruling, cities across the Golden State are now suspending or rethinking their building electrification ordinances and natural gas bans to align with the court’s determination and prevent future litigation.

In May, the Carlsbad City Council decided to move forward with developing its own “reach code” in a push toward electrifying all new construction buildings. But the current legal uncertainty has required Carlsbad officials to explore alternatives, such as setting higher building efficiency standards without requiring new construction to be all-electric.

If an appeal hearing is granted and the en banc panel overturns the previous decision, the Encinitas City Council may reverse the temporary suspension of its building electrification code, making it immediately enforceable to new construction. If the ruling is upheld, the City Council may instead amend the reach code.

At Wednesday night’s meeting, some Encinitas residents did not agree with the council’s decision and believed the  “green building” ordinance should remain in place until more information was available.

“We have been extremely supportive of Encinitas’ efforts to create and pass the reach code ordinance that brought all-electric new construction to the city. It was an important first for the entire county of San Diego,” said Harold Standerfer, Olivenhain resident and member of the Sierra Club San Diego Chapter. “It is unfortunate that there are forces that have sought to block and delay actions that will mitigate the looming climate catastrophe. It remains our charge to continue to advocate for policies and actions to address the crisis.”

Other public speakers applauded the city’s forward-thinking ordinance in the fight against climate change.

When the public comment was closed, council members supported the reach code while emphasizing a need to temporarily suspend the ordinance out of an abundance of caution.

“This is a legally prudent move. It is a temporary suspension; it’s not a repeal,” Councilmember Bruce Ehlers said. “It’s not giving up the fight, but it puts us in a better legal position.”

Mayor Tony Kranz expressed his disappointment over the council’s decision to unwind a yearslong process. 

“I share your frustrations and was happy to support our reach code ordinance. I am super disappointed in this decision at the 9th Circuit,” Kranz said. “To continue to enforce our electrification code would no doubt present risk, so therefore, it is my opinion that we should approve the suspension of this code until this works its way through the courts.”

Kranz proposed to amend the current reach code to include requiring developers to add the necessary wiring or conduit to facilitate an electric-only building should the decision be reversed. The city estimates a couple of months to develop a code amendment.