A gas burner working. (Fred Tanneau/AFP via Getty Images)
A Ninth Circuit court on Monday went against a Berkeley ordinance that banned natural gas piping in new buildings inside the city.
A district court had dismissed an action from the California Restaurant Association, a dismissal that is now reversed by the Ninth Circuit court, according to its published opinion on the case (pdf).
The California Restaurant Association alleged that the Energy Policy and Conservation Act preempts the city of Berkeley’s regulation, which banned natural gas piping in new buildings.
The Act expressly preempts State and local regulations on the energy use of natural gas appliances used in household and restaurant kitchens, according to the Ninth Circuit judges’ opinion on Monday.
“Instead of directly banning those appliances in new buildings, Berkeley took a more circuitous route to the same result and enacted a building code that prohibits natural gas piping into those buildings, rendering the gas appliances useless,” according to Judge Patrick Bumatay.
“States and localities can’t skirt the text of broad preemption provisions by doing indirectly what Congress says they can’t do directly. Berkeley can’t evade preemption by merely moving up one step in the energy chain and banning natural gas piping within those buildings.”
Judge Miller Baker, concurring, wrote that the Berkeley ordinance “cut to the heart of what Congress sought to prevent,” which is state and local manipulation of building codes for the purpose of regulating natural gas consumption.
The third concurring opinion was by Judge Diarmuid O’Scannlain, a Reagan appointee.
“I agree that EPCA preempts the Ordinance. But I only reach that conclusion because, under Ninth Circuit precedent, I believe I am bound to hold that the presumption against preemption does not apply to the express-preemption provision before us today. That conclusion is not obvious or easy,” O’Scannlain wrote.
“While I ultimately conclude that, under this court’s cases, the presumption does not apply here, the law remains troubling and confused—beset by tensions in Supreme Court precedents, disagreement among the circuits, and important practical questions still unanswered.”
According to Judge Bumatay, a Trump appointee with offices in San Diego, the California Restaurants Association demonstrated that some of its members, which include restaurateurs and chefs, would open or relocate a restaurant in Berkeley if the city’s ban on natural gas piping was not in place. Therefore the Berkeley ordinance harmed at least one of the association’s members.
The judge who initially dismissed the California Restaurant Association’s case was Obama appointee Yvonne Gonzalez Rogers, a District Court Judge for the Northern District of California.
The ordinance for banning gas piping was adopted in Berkeley in July 2019, citing as one reason for its existence the “greenhouse gas emissions” produced by natural gas use.
The restaurant association’s president and CEO Jot Condie applauded the reversal, the Courthouse News Service reported.
“The Ninth Circuit has unanimously affirmed the central issue in this case: local ordinances cannot override federal law,” Condie said.
“Cities and states are not equipped to regulate the energy use or energy efficiency of appliances that businesses and homeowners have chosen; energy policy and conservation is an issue with national scope and national security implications. Natural gas appliances are crucial for restaurants to operate effectively and efficiently, as they allow for a wide variety of cuisines and innovations in the restaurant industry.”
The association’s attorney, Reichman Jorgensen Lehman & Feldberg partner Sarah O. Jorgensen, said Berkeley “should not be permitted to overrule energy decisions that affect the country as a whole.”
The ruling could be appealed, according to a statement by Matt Vespa, a senior attorney with the nonprofit Earthjustice, the Associated Press reported.