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The city’s gas ban started an electric revolution. What happens now that a court struck it down?
A federal court decision on Monday throws into question one of the most consequential events in the recent history of climate action.
In 2019, the city council of Berkeley, California, voted to ban the extension of natural gas lines to new buildings, becoming the first city in the nation to force developers to forego gas appliances like furnaces and stoves. Other than a few earlier fracking bans in states like New York and Vermont that attacked the supply side of the equation, it was also one of the first attempts to bridle the U.S.’s growing dependence on natural gas in the name of climate change.
That bold step reverberated across the country, waking many up to the fact that furnaces, water heaters, stoves, and clothes dryers are significant drivers of global warming. Gas bans became a popular way for local governments to begin to tackle their emissions in the absence of federal regulations. In the less than four years since Berkeley’s law passed, nearly 100 municipalities — including Los Angeles, New York City, Seattle, and Washington, D.C. — have adopted similar policies that either require developers to build all-electric, or strongly encourage it.
But meanwhile, Berkeley’s original ban was under threat. A trade group called the California Restaurant Association sued the city just months after the law passed. While a district court sided with Berkeley in 2021, the U.S. Court of Appeals for the Ninth Circuit has now overturned that ruling.
So is it all over for gas bans?
The Ninth Circuit’s decision certainly mucks up the options that cities and states have to steer the transition to clean energy. But the phrase “gas ban” is really a shorthand for a wide range of policies that cities and states have tested, many of which are unlikely to be affected by Monday’s ruling.
“While the Ninth Circuit decision does impact some aspects of local authority to electrify buildings, it is far from a knockout blow,” wrote Amy Turner, a senior fellow at Columbia Law School who leads the Cities Climate Law Initiative, in a blog post on the ruling.
The Ninth Circuit found that Berkeley’s ban was preempted by a federal law called the Energy Policy and Conservation Act, which says that cities cannot regulate the energy use of products that are regulated by the Department of Energy. Berkeley didn't attempt to set energy standards for furnaces or stoves, but the Ninth Circuit argued that by prohibiting gas line extensions, the city limited “the end-user’s ability to use installed covered products.”
Turner noted that Berkeley’s approach relies “on its police powers, or its authority to govern with respect to health and safety.” But other jurisdictions have tried different approaches, banning gas through the alteration of building energy codes and air emissions standards.
For example, the Boston suburb of Brookline, Massachusetts, adopted a building code with tough energy efficiency standards that all but force the use of electric appliances in new construction. In this case, the city put restrictions on the total energy a building can consume — not individual products — and gave builders options to comply. Technically a developer there can still install gas lines if they take other measures to conserve energy. Some states preempt local governments from setting their own building codes, however, so that strategy won’t work everywhere.
New York City also went in a different direction, subjecting new buildings to carbon dioxide emissions limits starting in 2024. “No person shall permit the combustion of any substance that emits 25 kilograms or more of carbon dioxide per million British thermal units of energy,” the law reads, essentially precluding the use of any gas-burning appliances. Since the law pertains to air emissions, rather than energy use, the Energy Policy and Conservation Act would not apply. But Turner wrote that other “legal questions remain” about this approach.
The Ninth Circuit decision only applies in states under the jurisdiction of that court, so Berkeley’s law can still be used as a playbook in other parts of the country — though communities may be hesitant to borrow it, at least for now. Berkeley has not yet confirmed whether it would appeal the decision, but E&E News reported that the city’s lawyers said they were not ruling it out and were assessing next steps.
The California Restaurant Association isn’t the only group fighting electrification policies. The natural gas industry has orchestrated a nation-wide campaign to block local governments from following Berkeley’s lead. Twenty Republican-led states, including Arizona, Texas, and Florida, have passed laws prohibiting municipalities from limiting the fuels that can be used in buildings. Those states account for 30% of residential gas consumption and 33% of commercial consumption, according to S&P Global. While the Inflation Reduction Act offers residents and businesses funding to voluntarily adopt electric heat pumps and induction stoves, there’s little, if anything, communities in those states can do to prevent developers from choosing gas instead.
Still, with many of the country’s largest cities having already followed Berkeley’s lead, and some states, like New York, considering state-wide policies to stanch gas use, the era of the gas ban is far from over.
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The Republican effort at permitting reform by way of the reconciliation process appears to have failed — or at least gotten washed out in the “Byrd Bath.”
Democrats on the Senate Budget Committee announced late Thursday night that the chamber’s parliamentarian had advised that several provisions of the new reconciliation bill text violated the “Byrd Rule” and thus were subject to a 60-vote threshold instead of simple majority rule. The parliamentarian has been going over the Senate bill for the past week and her rulings on more sections of the bill are expected this weekend.
The permitting reform plan drawn by the Senate Environment and Public Works Committee essentially allowed project developers to prevent environmental reviews from being subject to litigation if they paid an upfront fee of 125% of the review’s expected cost. A similar provision was included in the House bill.
Rhode Island Democrat Sheldon White House, the ranking member on the Committee, described the permitting language as “turning the National Environmental Policy Act into a pay-to-play scheme” and “a scam ripe for Trump-style corruption.”
Clean energy groups have historically supported efforts to streamline and speed up permitting (and many environmental groups have opposed them), although typically bipartisan ones, like the legislation worked out by the Senate Energy and Natural Resources Committee in the previous Congress, that never gained support in the House of Representatives. Environmental groups have long worried that permitting reform, even bipartisan bills, would benefit the fossil fuel industry by disabling checks against massive oil, coal, and gas projects, whereas the renewable energy industry often sees as an opportunity to more quickly and cheaply advance their own projects.
Payment of the fee would also impose a one year timeline for an environmental impact statement, the most extensive type of review, and a six month timeline for an environmental assessment. The timelines were not ruled out by the parliamentarian, according to the Senate Budget Democrats.
The payment aspect of the plan was crucial to give it a shot at surviving the Byrd Rule, because it meant that the provisions decreased the deficit and thus could be argued to be primarily budgetary in nature (the same way, say, a new tax is).
While the parliamentarian or the Budget Committee didn’t disclose the justification for ruling out the judicial review provisions, Bobby Kogan, a former Budget Committee staffer who works at the liberal Center for American Progress, told me that the provision could have tripped up multiple provisions of the Byrd Rule.
“My guess is that judicial review is presumably outside the jurisdiction of EPW and it’s also probably non-budgetary. If it was budgetary, it’s probably merely incidental — it’s fundamentally about permitting,” Kogan said. “Almost certainly, the judicial thing was killed for merely incidental,” Kogan told me.
A Senate Budget spokesperson did not return a request for comment.
Republicans in the Senate could simply drop the provision or force the whole Senate to take a vote on it — but that vote would be subject to the 60-vote threshold to defeat a filibuster.
While the parliamentarian’s ruling probably means that this attempt at meaningful permitting reform is likely dead, the Trump administration and the Supreme Court have taken several whacks at the National Environmental Policy Act, with the Court recently ruling that agencies can limit themselves to the immediately environmental impact of government actions and instructing lower courts to give more deference to agencies’ reviews.
A new “foreign entities of concern” proposal might be just as unworkable as the House version.
In the House’s version of Trump’s One, Big, Beautiful Bill Act Republicans proposed denying tax credits to clean energy companies whose supply chains contained any ties — big or small — to China. The rules were so administratively and logistically difficult, industry leaders said, that they were effectively the same as killing the tax credits altogether.
Now the Senate is out with a different proposal that, at least on its face, seems to be more flexible and easier to comply with. But upon deeper inspection, it may prove just as unworkable.
“It has the veneer of giving more specificity and clarity,” Kristina Costa, a Biden White House official who worked on Inflation Reduction Act implementation, told me. “But a lot of the fundamental issues that were present in the House bill remain.”
The provisions in question are known as the “foreign entities of concern” or FEOC rules. They penalize companies for having financial or material relationships with businesses that are “owned by, controlled by, or subject to the jurisdiction or direction of” any of four countries — Russia, Iran, North Korea, and, most importantly for clean energy technology, China.
The Inflation Reduction Act imposed FEOC restrictions on just one clean energy tax credit — the $7,500 consumer credit for electric vehicles. Starting in 2024, if automakers wanted their cars to qualify, they could not use battery components that were manufactured or assembled by a FEOC. The rules ratcheted up over time, later disallowing critical minerals extracted or processed by a FEOC.
The idea, Costa told me, was to “target the most economically important components and materials for our energy security and economic security.” But now, the GOP is attempting to impose FEOC restrictions liberally to every tax credit and every component, in a world where China is the biggest lithium producer and dominates roughly 80% of the solar supply chain.
Not only would sourcing outside China be challenging, it would also be an administrative nightmare. The way the House’s reconciliation bill was written, a single bolt or screw sourced from a Chinese company, or even a business partially owned by Chinese citizens, could disqualify an entire project. “How in the world are you going to trace five layers down to a subcontractor who’s buying a bolt and a screw?” John Ketchum, the CEO of the energy company NextEra, said at a recent Politico summit. Ketchum deemed the rules “unworkable.”
The Senate proposal would similarly attach FEOC rules to every tax credit, but it has a slightly different approach. Rather than a straight ban on Chinese sourcing, the bill would phase-in supply chain restrictions, requiring project developers and manufacturers to use fewer and fewer Chinese-sourced inputs over time. For example, starting next year, in order for a solar farm to qualify for tax credits, 40% of the value of the materials used to develop the project could not be tied to a FEOC. By 2030, the threshold would rise to 60%. The bill includes a schedule of benchmarks for each tax credit.
“That might be strict, but it’s clearer and more specific, and it’s potentially doable,” Derrick Flakoll, the senior policy associate for North America at BloombergNEF, told me. “It’s not an all or nothing test.”
But how companies should calculate this percentage is not self-evident. The Senate bill instructs the Treasury department to issue guidance for how companies should weigh the various sub-components that make up a project. It references guidance issued by the Biden administration for the purposes of qualifying for a domestic content bonus credit, and says companies can use this for the FEOC rules until new guidance is issued.
Mike Hall, the CEO of a company called Anza that provides supply chain data and analytics to solar developers, told me he felt that the schedule was achievable for solar farm developers. But the Biden-era guidance only contains instructions for wind, solar, and batteries. It’s unclear what a company building a geothermal project or seeking to claim the manufacturing tax credit would need to do.
Costa was skeptical that the Senate bill was, in fact, clearer or more specific than the House version. “They’re not providing the level of precision in their definitions that it would take to be confident that the effect of what they’re doing here will not still require going upstream to every nut, bolt, screw, and wire in a project,” she said.
It’s also hard to tell whether certain parts of the text are intentional or a drafting error. There’s a section that Flakoll had interpreted as a grandfathering clause to allow companies to exempt certain components from the calculation if they had pre-existing procurement contracts for those materials. But Costa said that even though that seems to have been the intent, the way that it’s written does not actually achieve that goal.
In addition to rules on sourcing, the Senate bill would introduce strict ownership rules that could potentially disqualify projects that are already under construction or factories that are already producing eligible components. The text contains a long list defining various relationships with Chinese entities that would disqualify a company from tax credits. Perhaps the simplest one is if a Chinese entity owns just 25% of the company.
BloombergNEF analyzed the pipeline of solar and battery factories that are operational, under construction, or have been announced in the U.S. as of March, and quite a few have links to China. The research firm identified 22 firms “headquartered in China with Chinese parent companies or majority-Chinese shareholders” that are behind more than 100 existing or planned solar or battery factories in the U.S.
One example is AESC, a Japanese battery manufacturer that sold a controlling stake in the business to a Chinese company in 2018. AESC has two gigafactories under construction in Kentucky and South Carolina, both of which are currently paused, and a third operating in Tennessee. Another is Illuminate USA, a joint venture between U.S. renewables developer Invenergy and Chinese solar panel manufacturer LONGi; it began producing solar panels at a new factory in Ohio last year. The sources I reached out to would not comment on whether they thought that Ford, which has a licensing deal with Chinese battery maker CATL, would be affected. Ford did not respond to a request for comment.
Hall told me he would expect to see Chinese companies try to divest from these projects. But even then, if the business is still using Chinese intellectual property, it may not qualify. “It’s just a lot of hurdles for some of these factories that are already in flight to clear,” he said.
In general, the FEOC language in the Senate bill was “still not good,” he said, but “a big improvement from what was in the House language, which just seemed like an insurmountable challenge.”
Albert Gore, the executive director of the Zero Emissions Transportation Association, had a similar assessment. “Of course, the House bill isn’t the only benchmark,” he told me. “Current law is, in my view, the current benchmark, and this is going to have a pretty negative impact on our industry.”
A statement from the League of Conservation Voters’ Vice President of Federal Policy Matthew Davis was more grave, warning that the Trump administration could use the ambiguity in the bill to block projects and revoke credits. “The FEOC language remains a convoluted, barely workable maze that invites regulatory chaos, giving the Trump administration wide-open authority to worsen and weaponize the rules through agency guidance,” he wrote.
On storm damage, the Strait of Hormuz, and Volkswagen’s robotaxi
Current conditions: A dangerous heat dome is forming over central states today and will move progressively eastward over the next week • Wildfire warnings have been issued in London • Typhoon Wutip brought the worst flooding in a century to China’s southern province of Guangdong.
Hurricane Erick made landfall as a Category 3 storm on Mexico’s Pacific coast yesterday with maximum sustained winds around 125 mph. Damages are reported in Oaxaca and Guerrero. The storm is dissipating now, but it could drop up to 6 inches of rain in some parts of Mexico and trigger life-threatening flooding and mudslides, according to the National Hurricane Center. Erick is the earliest major hurricane to make landfall on Mexico's Pacific coast, and one of the fastest-intensifying storms on record: It strengthen from a tropical storm to a Category 4 storm in just 24 hours, a pattern of rapid intensification that is becoming more common as the Earth warms due to human-caused climate change. As meteorologist and hurricane expert Michael Lowry noted, Mexico’s Pacific coast was “previously unfamiliar with strong hurricanes” but has been battered by epic storms over the last two years. Acapulco is still recovering from Category 5 Hurricane Otis, which struck in late 2023.
AccuWeather
An oil tanker collision near the Strait of Hormuz is raising environmental and security concerns. The accident in the Gulf of Oman involved the Adalynn and Front Eagle tankers. It caused a “small oil spill,” according to the Emirati government, but Greenpeace analyzed satellite images and said the oil plume stretches some six square miles from the collision site. “This is just one of many dangerous incidents to take place in the past years,” said Greenpeace campaigner Farah Al Hattab. The Strait of Hormuz is a choke point for oil shipments, with about one-third of the volume of crude exported by sea moving through that route. Oil prices have been on a roller coaster ride since Israel launched airstrikes against Iran on June 13. Ships in the region have been reporting more GPS navigation interference in recent days. “If the conflict continues, we expect these interferences to continue as well,” Jean-Charles Gordon, senior director of ship tracking at research firm Kpler, toldThe New York Times.
North Carolina lawmakers finalized a bill repealing a mandate that directs electric regulators to reduce their carbon dioxide emissions by 70% by 2030. The mandate was part of a landmark 2021 law aimed at dramatically reducing the state’s power plant emissions. While at least 17 other states have similar laws in place, just two – North Carolina and Virginia – are in the Southeast. The new bill’s supporters say that the interim emissions goal would require energy providers to switch to more expensive power sources and that the costs would be passed on to consumers in the form of higher power bills.
Confusingly, regulators would still be asked to work toward carbon neutrality by 2050, even while the short-term emissions goal might be nixed. “Not having any target, even an aspirational target, could mean that we don’t stay on track to get to our 2050 goal,” Democratic Sen. Julie Mayfield said. The bill now goes to Democratic Gov. Josh Stein’s desk. There’s a chance he might veto it, but “with over a dozen House and Senate Democrats voting for the final version, the chances that any Stein veto could be overridden are higher,” The Associated Pressreported.
The United Kingdom issued long-awaited environmental guidance that it will use to determine whether new oil and gas proposals should be approved. The guidance requires that developers estimate and include scope 3 emissions – or the downstream pollution from burning oil and gas – in their drilling applications. This “will ensure the full effects of fossil fuel extraction on the environment are recognized in consenting decisions,” the Department for Energy Security and Net Zero said. The government will consider these emissions, as well as other factors like “the potential economic impact” of a project and a company’s efforts to remove carbon dioxide when granting or denying approval. The guidance will help determine whether major new drilling projects from oil giants Shell and Equinor are approved for the North Sea.
Volkswagen Group unveiled its first fully autonomous production vehicle, the ID. Buzz AD. The electric robotaxis will target corporate customers and mobility services. They “come packed with everything that’s needed to operate them,” explained Iulian Dnistran at InsideEVs. “What makes this solution interesting compared to other ride-hailing platforms is that it enables anybody to start an Uber or Waymo rival without investing hundreds of millions of dollars in research, development, and certification.” The shuttles are slated for launch across Europe and the U.S. next year. Tesla recently announced that its first Robotaxis would hit the streets in Austin, Texas, sometime this month.
Volkswagen
In a new peer-reviewed paper published in the journal Communications Earth & Environment, researchers conclude that offsetting the potential carbon emissions from reserves held by the world’s 200 largest fossil fuel companies would require planting new forests that are larger than the entire continent of North America.