Irvine will seek alternative measures to circumvent a federal ruling blocking the implementation of the city’s new building electrification ordinance. In a 4-1 vote on Tuesday, June 13, city leaders voted to study an incentive-based approach that would not eliminate the use of natural gas piping, and would be the least risky under federal law.

Irvine’s new building electrification ordinance aims to eliminate the use of natural gas piping in new construction, but has been at a standstill since April after a Ninth Circuit Court of Appeals ruled that banning the use of natural gas is a violation of the Energy Policy and Conservation Act.

Established by congress in 1975, EPCA states that, “localities could not prevent consumers from using covered products in their homes, kitchen and businesses,” Judge Patrick Bumatay wrote in the 3-0 decision.

The decision in the case of Restaurant Association of California vs. The City of Berkeley set a precedent in California, when judges ruled 3-0 that the City of Berkeley’s new building electrification ordinance — which had many similarities to Irvine’s — was in violation of the 1975 law.

While Irvine’s ordinance must go through a second reading, city leaders pulled the item from the agenda in April after the Ninth Circuit opinion was released. Irvine City Attorney Jeff Melching suggested the council move in a direction that does not violate federal law.

The City of Berkeley has filed a request for a hearing en banc, which would require a set of 11 new judges to hear the case.

However, Melching explained that there is no guarantee the court will grant the request for a hearing en banc, and moved to present different options to the council to move forward with the ordinance as legally as possible.

In order to do so, Melching presented five options to the council, each with varying degrees of legality as it pertains to the use of natural gas in new construction.

With the first and second option, the city would proceed with the second reading of the ordinance, while enforcing a ban on natural gas in new construction. However, Melching cautioned the council that moving forward with the ordinance’s second reading was highly unrecommended.

In his presentation, Melching explained that due to precedent within the federal ruling, Irvine must abide by the law. He also added that both Option 1 and Option 2 were risky, considering the broad language in the ruling.

In lieu of the second reading, Melching explained that the city could implement a different strategy that would not prohibit natural gas piping within the home, but rather ban the use of natural gas appliances.

“Option 2 would be to come up with a different strategy that doesn’t involve prohibiting [natural gas] plumbing to the houses, but does involve outright prohibiting natural gas appliances,” he said. “We think that strategy is different, and maybe outside the technical scope of the Ninth Circuit decision, but very risky given the language in the decision.”

The city’s third option requires the implementation of an incentive-based approach to electrification.

Melching referred to the incentive-based approach to electrification as the “least risky.” Melching added that the incentive-based approach would require homeowners that use natural gas appliances would need to “achieve greater efficiencies” with other equipment found in the home.

“In the incentive-based approach, the city essentially is setting efficiency standards for new homes as a whole. So it wouldn’t outright prohibit someone from using a natural gas appliance,” he said.

Irvine Council member Dr. Kathleen Treseder voted to adopt the incentive-based approach, but added that she wants to use city resources wisely.

“My philosophy on this is if we have an building electrification ordinance, I want it to be done well, and I don’t want to invest our resources and time pursuing legal cases that might not hold up,” she said.

Melching admitted that this issue comes down to how the court interprets the law. But, despite the court’s opinion, Melching said several additional briefs were filed against the decision

“In the law there’s this dichotomy that you have to deal with in appellate decisions — there’s what the case was about – in Berkeley it was about natural gas plumbing to homes – and then there’s the language – the rationale, the reasoning of the case,” he said. “But the thing that everyone is wrestling with is the broad language in the decision and how broadly it can be read.”

This is a developing story.

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