SAN FRANCISCO (CN) — A Ninth Circuit panel on Monday closed the valve on Berkeley’s ban on natural gas piping in new buildings, finding it's preempted by federal conservation law.
The three-judge panel's ruling reverses a federal judge's dismissal of a lawsuit by the California Restaurant Association claiming the Energy Policy and Conservation Act preempts the San Francisco Bay Area city's ban. The group said the ordinance would affect chefs' ability to prepare food the way they are typically trained — using natural gas stoves.
At a hearing in 2021, U.S. District Judge Yvonne Gonzalez Rogers found the city had the authority to regulate the distribution of natural gas when she dismissed the restaurant association's lawsuit last year.
In May 2022, the appeals panel, composed of Judge M. Miller Baker — sitting by designation from the U.S. Court of International Trade — and fellow Donald Trump appointee U.S. Circuit Judge Patrick Bumatay, and Senior U.S. Circuit Judge Diarmuid O’Scannlain, a Ronald Reagan appointee, heard arguments from lawyers.
Attorney Brian Baran, representing the association, called Berkeley’s novel ban a roundabout way to de facto ban gas appliances to further the city’s environmental goals, in “contravention of federal policy.” He said the congressional intent behind the 1975 law was to ensure a domestic supply of energy in the wake of the oil crisis at the time, and to reduce the demand for energy through conservation measures including standards for appliances.
But Thomas Pulham, an assistant U.S. attorney, told the panel Berkeley’s ordinance doesn’t implicate the preemption clause of the law as “it doesn’t even address energy use at all as that term is defined in the statute.”
Writing for the panel Monday, Bumatay found that Rogers improperly dismissed the case.
Bumatay agreed the Energy Policy and Conservation Act preempts the Berkeley ordinance, and held that at least one of the California Restaurant Association members had suffered an injury. The act expressly preempts state and local regulations concerning the energy use of many natural gas appliances, including those used in household and restaurant kitchens, and the Berkeley building code would have prevented those appliances from using natural gas at all, he said.
“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,” Bumatay wrote for the panel.
“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.”
Concurring, O’Scannlain said he only reached the same conclusion because, under Ninth Circuit precedent, he was bound to hold that the presumption against preemption does not apply to the express-preemption provision at issue.
“I am not convinced that we have correctly followed the Supreme Court’s instructions in this admittedly troubled area. The Supreme Court is always free, of course, to change its precedent. But our court does not enjoy such power,” O’Scannlain said.
“I remain concerned that this area of law is troubling and confused, with tensions in the Supreme Court’s precedents, splits in the circuits, and important practical questions unanswered,” he added.
Baker, also concurring, said the Berkeley ordinance “cut to the heart of what Congress sought to prevent” through what he called state and local manipulation of building codes to regulate products covered by federal law, even when gas service is available to the premises where products are used.
“I think it is ‘relatively clear’ that at least one of the association’s members will be harmed by the challenged ordinance, and the city doesn’t need to know the identity of that member to understand and respond to the association’s complaint at the pleading stage,” Baker added.
The panel remanded the case to Rogers for further proceedings
The restaurant association's president and CEO Jot Condie applauded the reversal.
“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," but San Francisco-based Earthjustice attorney Matt Vespa called the ruling “misguided.”
“As we face a climate and air quality crisis from coast to coast, it is vital that cities and states maintain all legal pathways to protect public health, cut climate emissions, and increase safety by addressing pollution from buildings, and we’ll continue to fight to ensure this authority is preserved,” Vespa said.
Attorneys for the city of Berkeley did not respond to requests for comment before press time.
Denise Grab, a principal at RMI’s Carbon-Free Buildings Program, said, “While most cities who have taken action to cut pollution from buildings will not be impacted by today’s decision, we trust that this ruling will be challenged in court and that this vital authority to address fossil fuel pollution will remain intact in the long-term."
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