California Restaurant Association sues City of Berkeley

Berkeley's new natural-gas ban goes against state law, the suit argues.


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Image: Kristan Lawson

Redwood City-based law firm Reichman Jorgensen LLP has filed suit on behalf of the California Restaurant Association against the City of Berkeley because of the city's forthcoming ban on natural gas infrastructure and the use of natural gas in newly constructed buildings — which is set to begin on Jan. 1, 2020.

In its legal complaint, filed on Nov. 21, the CRA alleges: 

"With millions of Californians sitting in the dark to avoid wildfires, and California’s energy grid under historic strain, banning the use of natural gas is irresponsible. ... California’s recent large-scale blackouts bring into sharp focus the need for a workable approach to California’s energy infrastructure and energy needs. Banning natural gas is not the solution, and is at odds with citizens’ needs for reliable, resilient, and affordable energy.

"Prohibiting natural gas cooking ranges, water heaters, fireplaces, space heaters, and backup electrical generation is fundamentally inconsistent with the public interest, and is a violation of both federal and state law.

"In its rush to be the first all-electric city in California, Berkeley bypassed clear federal and state law. These laws were designed to promote uniform standards regarding energy use in appliances and buildings. They require a practical approach to energy regulation, maintaining neutrality and recognizing the need for a diverse energy supply. This is for good reason: a patchwork approach is unworkable, undercuts California’s need for reliable and resilient energy, increases the cost of housing, and denies consumers choice. Taking away the ability to use natural gas cooking ranges, water heaters, heat, and fireplaces, as well as backup electric supply during power outages, is contrary to the state and federal legislative schemes. ...

"State law expressly pre-empts the Berkeley Ordinance, requiring specific procedures to be followed if a city seeks to impose more stringent regulations on building standards and energy usage. Berkeley bypassed these state procedures in its rush to mandate all-electric new buildings. ... Because it failed to comply with State procedures, the Berkeley Ordinance is pre-empted by California law and is void and unenforceable.

"Berkeley’s ordinance is premised on the conclusory assertion that use of electricity is better for the environment than use of alternative forms of energy, such as gas. Such a policy decision should be based on reliable studies – the actual facts as opposed to assumptions. Berkeley in substance assumes its conclusion about the environmental impacts of gas versus electric without credible scientific support," the complaint reads.

The case is California Restaurant Association vs. City of Berkeley, case number 3:19-cv-07668, in the United States District Court for the Northern District of California. The CRA is the nation's largest nonprofit's statewide restaurant trade association.

So why are restaurant owners reacting so strongly to this issue? The CRA's complaint explains:

"Restaurants rely on natural gas for such things as food preparation and heating space and water, and even providing backup power during electrical outages. Many of these restaurants rely on gas for cooking particular types of food, whether it be flame-seared meats, charred vegetables, or the use of intense heat from a flame under a wok. Indeed, restaurants specializing in international foods so prized in the Bay Area will be unable to prepare many of their specialties without natural gas. Many chefs are trained using natural gas stoves, and losing natural gas will slow down the process of cooking, reduce a chef’s control over the amount and intensity of heat, and affect the manner and flavor of food preparation. Restaurant owners and employees as well as restaurant customers also will be denied the use of gas appliances to prepare food, heat their homes or water, or use gas fireplaces in newly constructed buildings. And a shift to 'all electric' also will impose greater costs on Berkeley businesses and consumers."

The CRA "is a strong supporter of the State's climate goals," said the CRA's lead counsel Courtland Reichman in a press release

"But the natural gas ban puts our client and its members at risk, for little to no environmental benefit.  Californians need to have an open and robust debate on the true costs and benefits of a diverse energy supply. Berkeley's rush to move to all-electric is one-sided and ill advised.  With California's energy grid under historic strain and electricity shutoffs affecting millions of people and businesses, now is not the time to put all of our eggs in the electric basket," Reichman aid.

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