REPORT TO THE CITY COUNCIL
DATE: Regular Meeting of April 9, 2024
TO: Mayor and Members of the City Council
VIA: Dante Hall, City Manager
SUBMITTED BY: Christie Crowl, Special Counsel
SUBJECT: Resolution of the City Council Suspending Enforcement of the City’s All-Electric Reach Code
RECOMMENDED ACTION
Adopt a resolution suspending enforcement of the City’s All-Electric Reach Code (Hercules Municipal Code Section 9-5.04(b))
BACKGROUND
City of Hercules All-Electric Reach Code
The City generally adopts the California Building Code (CBC) in its entirety every three years for use and application in Hercules with minor local amendments. At its September 28, 2021 and January 11, 2022 meetings, the City Council heard City staff’s presentation on the health, safety, and environmental concerns associated with natural gas use in buildings and directed staff to return with additional information. On February 8, 2022, City staff returned to present Contra Costa County’s All-Electric Ordinance and requested direction on drafting an ordinance for Hercules. The City Council then provided direction for City staff to prepare a “Reach Code” amendment which would amend Chapter 5 (Electrical Code) of Title 9 (Building Regulations) of the Hercules Municipal Code. The Reach Code is a local building energy code that “reaches” beyond the state minimum requirements for energy use in building design and construction, creating opportunities for local governments to lead the way on clean air, climate solutions, and the renewable energy economy. The Council directed staff to return with a Reach Code ordinance that accomplished the following:
Require all of the following newly constructed buildings be all-electric, with no natural gas infrastructure:
Residential
Hotel
Office
Accessory Dwelling Units
The all-electric building requirements of the ordinance would not apply to any of the following uses:
Emergency facilities and emergency generators
Restaurants
Retail
On April 18, 2022, the Planning Commission reviewed and voted to recommend for Council adoption a draft ordinance aligned with Council’s prior direction, but with the following modifications:
Change “Accessory Dwelling Units” to “Detached Accessory Dwelling Units”; Clarify that rebuilding of existing structures would be subject to ordinance; and Revise the exception for laboratories and medical buildings to apply only to laboratory and research functions and not for general heating and appliance purposes.
The ordinance amendment was introduced at the May 24, 2022 regular City Council Meeting. The Council approved the ordinance on June 14, 2022, and it went into effect 30 days from date of final adoption on July 14, 2022.
Ninth Circuit Decision in California Restaurant Association v. City of Berkeley In 2020, the City of Berkeley adopted an ordinance prohibiting new building construction from including gas piping, except when not physically feasible and where natural gas would “serve the public interest.” The Restaurant Association (which generally desires the use of natural gas for cooking) sued Berkeley alleging that federal law (the Energy Policy and Conservation Act, or “EPCA”) preempted the ordinance. After the district court initially ruled in Berkeley’s favor, on April 17, 2023, the Ninth Circuit reversed and concluded that EPCA preempts states and local governments from regulating the quantity of natural gas used by an appliance at the point of use. The City of Berkeley did not appeal this decision and it remains the law.
DISCUSSION
The City’s all-electric reach code is similar to Berkeley’s ordinance. The City adopted a true reach code (making the required state law findings to amend the CBC), while Berkeley adopted its all-electric requirements by way of a regular ordinance enacted pursuant to its police powers. But both the City’s reach code and Berkeley’s ordinance regulate the use of natural gas by prohibiting such use in new construction projects. And the Ninth Circuit’s decision in California Restaurant Association v. City Berkeley is clear that EPCA preempts cities from regulating natural gas use.
Therefore, staff and the City Attorney’s Office recommend that the City Council suspend enforcement of the City’s all-electric reach code while staff studies whether there is a way to amend the reach code or otherwise address the potential environmental and other impacts of natural gas.
CONCLUSION
Staff requests that the City Council adopt the resolution suspending enforcement of the City’s all-electric reach code, attached hereto as Attachment A.
FISCAL IMPACT
Suspending enforcement of the City’s all-electric reach code has no fiscal impact.
ATTACHMENTS
Attachment A – Draft Resolution