Despite the Irvine City Council’s unanimous vote last month to approve an ordinance for the electrification of new buildings, Irvine will pause on implementation due to a ruling from Ninth Circuit Court of Appeals.  

The ruling stems from a 2019 case involving the California Restaurant Association and the City of Berkeley. The case, held at the 9th U.S. Circuit Court of Appeals in San Francisco, surrounded the California Restaurant Association’s opposition to Berkeley’s attempt to enforce a ban on natural gas appliances, as well as prohibit the installation of natural gas piping. 

Irvine’s ordinance would have similarly banned natural gas appliances in the new construction of government and residential buildings with exceptions made for the cooking of ethnic dishes in newly constructed restaurants. While Irvine’s building electrification ordinance set aside exemptions protecting the use of natural gas appliances in designated restaurants, the item was removed from the April 25 Council agenda, prior to its second reading.  

In terms of significance, the second reading typically serves as a formal way to adopt ordinances during a regular city council meeting or public hearing. 

Irvine City Manager Oliver Chi explained that staff recommended the second reading of the ordinance be removed from the agenda in hopes of finding a work around the recent ruling. 

“Last week, the Ninth Circuit Court of Appeals ruled that a building electrification ordinance, approved by the city of Berkeley, was deemed to be in violation of federal law and therefore struck down,” Chi explained. “Our building electrification ordinance does contain similar reasoning as the ordinance in Berkeley, and what we’re suggesting is that the second reading be pulled off the agenda to provide staff some additional time to see if we can effectively develop a work around.”

One of the opinions within the ruling, filed on Monday, April 17, from U.S. Circuit Judge Patrick J. Bumatay found that Berkeley’s ban on natural gas piping was a violation of The Energy Policy and Conservation Act which protects state and local regulations related to natural gas piping infrastructure.

“The Energy Policy and Conservation Act, expressly preempts state and local regulations concerning the energy use of many natural gas appliances, including those used in household and restaurant kitchens,” Bumatay wrote. “Instead of directly banning those appliances in new buildings, Berkeley took a more circuitous route to the same result. It enacted a building code that prohibits natural gas piping into those buildings, rendering the gas appliances useless.” 

While Irvine’s electrification ordinance was similar, the council carved out stipulations that would allow for certain restaurants to maintain their same style of cooking with open flame. 

Irvine Vice Mayor Tammy Kim took issue with aspects of the ordinance that pertained that might interfere with ethnic styles of cooking. During the city’s first public hearing regarding the building electrification ordinance in March, Kim pushed for several exemptions that would allow restaurants that rely on open flame cooking to maintain that process.

“Bulgogi, which is Korean meat, literally means ‘fire meat,’ that’s the literal translation,” Kim said. “This is really about our culture, our heritage, our tradition, our history. Taking that away is really stripping an entire community of its own food culture.”

During the April 26 meeting, Irvine City Council Member Dr. Kathleen Treseder asked about the possibility of moving the second reading of the ordinance to the next City Council meeting in May.

Irvine City Attorney Jeff Melching explained that it would be possible to provide an update on the ordinance, but that it was city’s staff’s recommendation to remove the second reading of the ordinance in an effort to avoid future litigation. 

“If, for some reason, there’s an ability to move forward in two weeks — which is not likely because the legal process moves relatively slowly — staff recommended not to adopt the ordinance tonight because we think that would increase the possibility of litigation against the city,” he explained. “The question is, what’s the next step?”

Melching underscored the unlikelihood of finding a work around for the Ninth Circuit ruling, adding that city staff would likely continue to recommend postponing the ordinance in the future. 

Treseder said she remained optimistic for an update at the next City Council meeting. 

“I’m hoping for a report of a possible work-around. I’m hearing that there might be one from other attorneys, so that’s what I’m looking for.”

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