Building developers, contractors, and architects are caught in a legal crossfire between local, state, and federal governments concerning natural gas infrastructure in future building construction. The central issue revolves around interpretations of a 1970s-era federal statute, the Energy Policy and Conservation Act (EPCA). As certain jurisdictions are advocating for building electrification and moving away from the use of natural gas, federal preemption through the EPCA is being considered within these jurisdictions by federal district courts. One area this issue coagulates concerns building energy codes and proposals that broadly prohibit the integration of natural gas appliances in new construction projects.
The current preemption landscape dominating the energy industry traces back to a single ordinance in a West Coast City. In July 2019, Berkeley’s City Council in California voted to ban natural gas infrastructure in new low-rise residential buildings. The ordinance went into effect on January 1, 2020, and aimed to reduce the amount of greenhouse gas (GHG) emissions attributable to natural gas—particularly from buildings—by the state’s 2030 deadline. Gas appliance and construction bans had been advocated by groups such as the Natural Resources Defense Council (NRDC) and Rewiring America. Berkeley’s health and safety ordinance encouraged a variety of natural gas bans and building electrification across the country. However, the ordinance also faced severe backlash from the gas industry and trade associations in the months thereafter.
On November 21, 2019, the California Restaurant Association (CRA) filed suit in the U.S. District Court for the Northern District of California against the City of Berkeley, a case which was initially dismissed and then later appealed to the U.S. Court of Appeals for the 9th Circuit. The CRA argued that the city’s ordinance was preempted by the EPCA, which gave the U.S. federal government the exclusive authority to set energy efficiency standards where they have chosen to act. On April 17, 2023, the 9th Circuit ruled for the CRA, holding that Berkeley’s ordinance which prohibited installation of natural gas piping in newly constructed buildings was preempted by federal law.
Individual States Attempt to Enforce Preemptive Measures on Gas Appliance Bans
The 9th Circuit’s decision had a lasting ripple effect that spread across the entire country. State lawmakers in the Southeast, Southwest, and the Plains regions in particular, introduced preemption legislation to prevent cities from implementing natural gas bans. By 2023, twenty states had preempted localities from prohibiting the sale of natural gas to consumers. North Dakota is one state that promulgated a state law (House Bill No. 1234) which preempted localities from passing ordinances that enforced natural gas bans. In fact, in March 2023, North and South Dakota enacted state-level laws to protect energy choice—becoming the 22nd and 23rd state to do so. The bills ensure that local governments are unable to pursue policies that prohibit new gas infrastructure and artificially restrict the marketplace. At this point, it became clear that there were two distinct approaches to preemption: enforcement of the EPCA through a federal or local action, or preemption that is promulgated by state laws to achieve the same goal.
A few years later under the Trump administration, the Department of Justice (DOJ) filed its own lawsuits against some cities, arguing that they were violating federal energy appliance standards by maintaining certain ordinances. One such city giving way to the pressure was Petaluma, California, which in late March of 2026, had voted to amend its ordinance to promote building electrification rather than require it. In February 2026, Morgan Hill, California, repealed its bill entirely which effectively banned natural gas infrastructure in new construction, arguing that it had not enforced the bill since the 2023 Berkeley decision.
Current Building Landscape
On May 3rd, 2023, Governor Kathy Hochul of New York signed the 2023-2024 state budget into law, effectively implementing a statewide ban on gas hookups in new construction, impacting the construction of new buildings under seven stories starting January 2026 and new buildings constituting more than seven stories starting in January 2029. On July 23rd, 2025, the U.S. District Court for the Northern District of New York upheld the statewide gas ban in Mulhern Gas Co. v. Mosley (N.D.N.Y. July 2025), seemingly exemplifying a difference in effectiveness between local ordinances and state legislation in the face of federal laws. However, what distinguishes Mulhern from the Berkeley case is that New York’s prohibition on the installation of fossil-fuel equipment does not relate to the “energy use” of covered products as defined by the EPCA and thus is not preempted. However, after plaintiffs filed an injunction pending appeal in the U.S. Court of Appeals for the 2nd Circuit, the defendants and the State of New York filed a stipulation agreeing to repeal the effective date of the gas ban until the appellate litigation is settled.
On June 9, 2026, the U.S. Supreme Court vacated the decision of the U.S. Court of Appeals for the 2nd Circuit concerning non-condensing commercial gas water heaters and residential gas furnaces. The Department of Energy (DOE) had constructed two new energy-efficiency rules that would take effect beginning in 2028, enforcing efficiency requirements that only condensing appliances could meet. Arguing the standards would effectively ban non-condensing appliances, the AGA relied on the dissenting opinion of the U.S. Court of Appeals for the District of Columbia contending that venting is inseparable from the appliance and therefore a performance standard that is protected under the EPCA. Agreeing with the Trump administration and gas sector interests, the Court concluded that the case should be remanded for further consideration of U.S. Solicitor General D. John Saur’s contention that the energy-efficiency rules promulgated by the DOE are factually and legally flawed.
Gas Appliances and Outlook for Future Building Construction
While local and state governments are restricted from implementing broad “gas bans” to the degree demonstrated in the Mulhern case, building developers, contractors, and architects must carefully consider and apply proper foresight as it relates to the installation of natural gas appliances. Many local and states governments like New York still enforce certain limitations on natural gas infrastructure in new building construction or provide incentives that benefit builders to promote electrification. Those potentially impacted by energy mandates must diligently monitor their integration of natural gas appliances during construction projects, especially if individuals are operating across jurisdictions.
For more information, please contact Jeff Genzer, Lauren Perkins, Lisa Gast, Andrea Sarmentero, and Sean Neal
Article By DWGP Summer Associate Joshua Fleming – Howard University School of Law, May 2027
