What the 9th Circuit decision means for the building electrification movement

Published on May 4, 2023

Here's what you need to know, and what you can do

solar panels on a house

Following the recent ruling from the 9th Circuit Court of Appeals on the all-electric construction policy from Berkeley, CA – the first passed in the U.S. – here are some key points for local government leaders and advocates to know when both defending and advancing policies.

  • It’s not clear that the 9th circuit decision on Berkeley’s policy will stand. The justification the industry used to oppose the policy is a Department of Energy (DoE) regulation, but the DoE itself doesn’t think Berkeley’s policy is a violation. This decision will be appealed, could be rereviewed, and if it is, it could be overturned. Berkeley is so confident of this, they’ve publicly said the city’s policy still stands and are taking legal steps to challenge the ruling.
  • Even if the decision stands, it doesn’t impact the vast majority of the more than 100 places that passed building electrification policies. Different legal routes to electrification exist in many places, including Berkeley. The vast majority of policies passed in North America aren’t configured the same way as Berkeley’s. Berkeley used the city’s “police powers” to limit what type of buildings can be built, whereas the overwhelming majority of building electrification policies use “reach codes” (i.e. building codes) to achieve the same goal. For a full breakdown of this decision, the potential legal ramifications, and alternative routes to policies, please see this blog by Amy Turner of the Sabin Center for Climate Change Law. Please reach out to us at safe@stand.earth if you’re not sure which kind of policy your city has passed or could pass, or what next steps you can take to defend or advance your policy. We’re here to help.
  • The lawsuit against Berkeley’s policy was bankrolled by the gas industry, using the restaurant industry as a front. The gas industry is trying to paint this lawsuit as aggrieved restaurant owners taking on city bureaucracy – when in reality it’s the gas industry working to undermine policies that protect the health of residents and the global climate to preserve profits.
  • That the industry is responding in this way is an indicator of the power of the building electrification movement. The gas industry is terrified of local action to limit fossil fuel hook ups because it’s effective and distributed. Industry leaders have called the possibility of Berkeley’s policy spreading “death by 1,000 cuts” and opposition to gas an  “existential threat” – and the industry is acting accordingly. At SAFE Cities we believe this is the time to move full speed ahead, not back down. We are supporting local government leaders and advocates all over the U.S. and Canada with building electrification and other policies to stop fossil fuel expansion and phase out fossil fuels.

To learn more about SAFE Cities work on building electrification, head here. Or, if you’re ready to join the SAFE Cities movement that is phasing out fossil fuels and fast tracking clean energy at the local level, you can get involved here.