Op-ed: Gas industry lawsuit won’t stop progress on all-electric buildings

In what can only be described as a spectacularly poor way to start the new year, the U.S. Court of Appeals for the Ninth Circuit declined in the first week of January to revisit its decision from last April striking down Berkeley’s first-in-the-nation building electrification policy.

Despite the objections of legal experts, nearly a dozen of the Ninth Circuit’s own judges, and the federal government itself, three Ninth Circuit judges decided that Berkeley’s policy of prohibiting gas hook-ups to new buildings is preempted (and therefore now invalid) by the Energy Policy and Conservation Act from 1975.

The news likely has fossil fuel executives and their lawyers popping champagne in business suites across the country. After all, they’ve described the building electrification movement as an “existential threat.” By funding this lawsuit, they may think they’ve cut off the head of the dragon.

There’s just one problem for the gas industry. The building electrification movement isn’t a dragon – it’s a hydra.

While Berkeley’s building electrification policy was a defining early win as the first such legislation to pass, it’s far from the only way this grassroots movement can take on fossil fuel pollution in buildings.

It’s true; the 25 or so places that passed policies just like Berkeley’s which relied on local police powers will now need to pursue a different policy approach, but many approaches remain open to local governments. And more than three times that number of municipalities have passed legislation using building codes to achieve electrification, and will likely only need to adjust their policies, if they decide they need to do anything at all.

Beyond that, plenty of places are taking completely different approaches altogether. For example, when the initial decision was announced in April 2023, Washington State proactively changed its policy to require new buildings to meet the efficiency standards of an electric heat pump as opposed to simply requiring electric heating and potentially running afoul of the Ninth Circuit decision. And in California, local regulators in Air Quality Management Districts are phasing out gas appliances by targeting the air pollutant nitrogen oxide, which is created en masse by burning methane gas.

And both within the jurisdiction of the Ninth circuit and beyond – even in states that have passed laws outlawing some approaches to building electrification – local municipalities are using incentives and community education to promote electrification over fossil fuels.

Couple that with the billions of dollars in federal spending unlocked by the Inflation Reduction Act to speed building electrification, the fact that electric appliances are safer and more efficient, and that heat pumps provide cooling as well as heating and the picture becomes pretty clear – even with this legal set back, the gas industry is in deep trouble.

Now’s the time for local leaders who care about the health of their community and the climate to show that they won’t be bullied by the fossil fuel industry and its lawyers. Whether a community has already passed a building electrification ordinance or it’s just learning about how these policies can drastically improve indoor air quality and cut climate pollution, there are many different paths forward.

For every lawsuit the industry funds or files and every underhanded tactic it uses, the building electrification movement has proven up to the task of finding better and more creative ways to safeguard our health and the future of the climate. Our response to the Berkeley lawsuit must be no different.

Nathan Taft is the digital and communications lead for Stand.earth‘s SAFE Cities initiative that works to phase out fossil fuels and fast track clean energy at the local level.