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Divided Ninth Circuit panel refuses rehearing on blocked Berkeley gas ban

Several judges dissented from the decision to deny the rehearing en banc.

SAN FRANCISCO (CN) — A Ninth Circuit panel ruled Tuesday it would not reconsider a ruling that prevents the city of Berkeley from enforcing its first-in-the-nation ban on installing natural gas appliances in new buildings.

The California Restaurant Association argued in its lawsuit the city's ordinance would affect chefs' ability to prepare food the way they are typically trained to do so on — natural gas stoves — and added that the the Energy Policy Conservation Act preempts the San Francisco Bay Area city's ban.

A federal district court judge ruled against the association, but in April 2023, a three-judge panel of the federal appeals court reversed that decision. The Ninth Circuit panel tossed the city’s ordinance, agreeing that it is preempted by federal conservation law.

The city appealed, seeking a rehearing en banc, but the majority of active judges on the Ninth Circuit refused the request, as reflected in the amended ruling Tuesday.

The conservative majority panel had ruled that the act’s preemption provision extends to regulations that address products and building codes, so Congress ensured that localities could not prevent consumers from using covered products in their homes, kitchens and business.

“By completely prohibiting the installation of natural gas piping within newly constructed buildings, the city of Berkeley has waded into a domain preempted by Congress,” U.S. Circuit Judge Patrick Bumatay, a Trump appointee, wrote in the ruling.

“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. 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 in those buildings from the point of delivery at a gas meter, rendering the gas appliances useless," he added in the amended ruling.

U.S. Circuit Judge Diarmund O'Scannlain, a Ronald Reagan appointee, and U.S. Court of International Trade Judge M. Miller Baker, a Trump appointee sitting by designation to the panel, concurred.

U.S. Circuit Judge Michelle Friedland, a Barack Obama appointee, wrote in dissent. She was joined by Chief U.S. Circuit Judge Helen Murguia and U.S. Circuit Judge Lucy Haeran Koh — also Obama appointees — U.S. Circuit Judges Kim Wardlaw and Ronald Gould, Bill Clinton appointees, and U.S. Circuit Judges Jennifer Sung, Gabriel Sanchez and Salvador Mendoza, appointed by President Joe Biden.

Friedland said she wants to urge any future court that interprets the act to not "repeat the panel opinion’s mistakes." She said the act’s history, text and structure show that the Berkeley ordinance is not preempted because it does not affect “energy use” within the meaning of the statute.

“In nearly a decade on the bench, I have never previously written or joined a dissent from a denial of rehearing en banc,” Friedland said. “The opinion misinterprets the statute’s key terms to have colloquial meanings instead of the technical meanings required by established canons of statutory interpretation. The panel opinion needlessly blocks Berkeley’s effort to combat climate change, along with the equivalent laws passed by other local governments.”

“Climate change is one of the most pressing problems facing society today, and we should not stifle local government attempts at solutions based on a clear misinterpretation of an inapplicable statute,” the judge added.

Attorneys for the city of Berkeley did not immediately respond to requests for comment. 

The association's attorney, Reichman Jorgensen Lehman & Feldberg partner Sarah O. Jorgensen, said that the panel's denial of a rehearing affirms their reading of the statutory text.

"As the panel decision recognizes, Berkeley’s ban on gas piping concerns the energy use and energy efficiency of covered appliances, and is preempted by the act and therefore invalid and unenforceable," Jorgensen said. "The denial of rehearing and confirmation of the panel decision is a critical victory for the members of the California Restaurant Association, including its chefs and restaurant owners, and will protect energy security, domestic supply and consumer choice."

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Categories / Appeals, Courts, Energy, Environment, Law

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