Title
Public Hearing to Consider Introduction of Ordinance Repealing Alameda Municipal Code Section 13-10.3, which Bans the Use of Natural Gas in New Construction and Major Remodels and Additions, In Order to Comply with California Restaurant Association v. City of Berkeley.
Environmental Review: Adoption of an Ordinance Repealing a Ban on the Use of Natural Gas in Buildings Is Exempt from Environmental Review Under the California Environmental Quality Act Guidelines Section 15061(b)(3). No Further Environmental Review is Required. (Planning, Building and Transportation 20976710) [Continued from June 4, 2024]
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To: Honorable Mayor and Members of the City Council
From: Jennifer Ott, City Manager and Yibin Shen, City Attorney
EXECUTIVE SUMMARY
In California Restaurant Association v. City of Berkeley (Exhibit 4), the 9th Circuit Court of Appeals found local ordinances banning the use of natural gas in buildings unlawful. Repeal of the entirety of Alameda Municipal Code (AMC) Section 13-10.3 is necessary to comply with the court decision. Staff, including the City Attorney Office, recommend that the City Council repeal said provisions in the AMC.
BACKGROUND
In 2019, City Council adopted Resolution 15607 limiting natural gas infrastructure for new residential construction on City owned property.
In 2021, City Council adopted amendments to the California Energy Code requiring all new construction citywide to be all electric with no gas hookups. The adopted ordinance essentially banned the use of natural gas in new building construction, and it was an action consistent with strategies to reduce greenhouse gas emissions in the City of Alameda’s (City) Climate Action and Resiliency Plan (CARP).
In 2022, City Council adopted Ordinance 3338 to move the electrification amendments to the Green Building Standards Code and expand the requirement to major additions or remodels of existing buildings that include replacement or addition of over 50 percent of floor as defined in the California Building Code.
In January 2024, the 9th Circuit Court of Appeals found local ordinances banning the use of natural gas in buildings unlawful in California Restaurant Association v. City of Berkeley. The City of Alameda immediately stopped enforcing its ordinance upon news of the court decision, except on City owned properties.
In May 2024, the City Attorney was contacted by a law firm representing the California Restaurant Association seeking the Alameda’s response to the Ninth Circuit decision (Exhibit 3).
In the awake of the Ninth Circuit decision, a number of local jurisdictions have taken steps or are in the process of taking steps to repeal or cease enforcement of similar ordinances, including Berkeley, Palo Alto, Albany, Belmont, Brisbane, and Sacramento.
DISCUSSION
The City Attorney’s Office agrees that the all-electric provisions in Ordinance 3338 are likely invalid and unenforceable because it is likely preempted by federal law. In California Restaurant Association v. City of Berkeley, the Ninth Circuit held that the City of Berkeley’s ban on natural gas infrastructure in new buildings was preempted by the federal Energy Policy and Conservation Act (EPCA), §§ 6201-6422. EPCA sets national energy policy, including federal energy conservation standards, for residential and commercial appliances. To avoid a patchwork of conflicting state and local regulations, EPCA expressly preempts any state or local regulation “concerning the energy efficiency, energy use, or water use of” a covered appliance. 42 U.S.C. § 6297(c). As the Ninth Circuit explained, EPCA reaches building code provisions and preempts ordinances that, like Berkeley’s, prevent the use of gas by covered appliances. Alameda’s ordinance is functionally indistinguishable from Berkeley’s ban under the Ninth Circuit’s reasoning and is therefore likely preempted.
ALTERNATIVES
The City Attorney’s Office believes that there are no viable alternatives to complying with the Ninth Circuit Court’s decision other than to repeal AMC Section 13-10.3.
FINANCIAL IMPACT
There is no financial impact from repealing AMC Section 13-10.3.
MUNICIPAL CODE/POLICY DOCUMENT CROSS REFERENCE
The subject ordinance would repeal AMC Section 13-10.3.
ENVIRONMENTAL REVIEW
In accordance with the California Environmental Quality Act (CEQA), this action is categorically exempt from further environmental review pursuant to CEQA Guidelines Section 15061(b)(3), where it can be seen with certainty adoption of the subject ordinance will have no significant effect on the environment.
CLIMATE IMPACT
Allowing natural gas infrastructure in new buildings will perpetuate the continued release of greenhouse gases. Consistent with CARP goals, staff will continue to work on identifying incentives to encourage developers to choose electricity over natural gas in new and substantially renovated buildings. Staff anticipates including this work in the CARP update. As a matter of City policy, staff continues to require building electrification on City-owned properties, where feasible, as well as pursue electrification in future leases, sales and purchase agreements, development agreements, and disposition and development agreements for City-owned land.
RECOMMENDATION
Introduce an ordinance repealing AMC Section 13-10.3, which bans the use of natural gas in new construction and major remodels and additions, in order to comply with California Restaurant Association v. City of Berkeley.
Respectfully submitted,
Allen Tai, Planning, Building & Transportation Director
Financial Impact section reviewed,
Margaret O’Brien, Finance Director
Exhibits:
1. AMC Section 13-10.3 - Strikeout-Underline Version
2. AMC Section 13-10.3 - Clean Version
3. May 2, 2024 Letter from Counsel for California Restaurant Association to Alameda City Attorney
4. Ninth Circuit Decision in California Restaurant Association v. City of Berkeley