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Restaurants urge Ninth Circuit to revive challenge to Berkeley natural gas ban

In 2019, Berkeley became the first U.S. city to ban natural gas hookups in new construction — including residential and businesses.

(CN) — Arguing before a Ninth Circuit panel Thursday, an attorney for a California restaurant trade organization doubled down on claims Berkeley’s novel ban on natural gas hookups in new construction is a roundabout way to ban gas-powered appliances in furtherance of the liberal city’s environmental goals.

The Berkeley City Council's ban on gas hookup installations in new residential and commercial buildings is preempted by the Energy Policy and Conservation Act (EPCA), said Brian Baran, an attorney with Reichman Jorgensen Lehman & Feldberg who represents the California Restaurant Association.

“This case has nothing to do with gas distribution. It’s about banning appliances, covered by EPCA, in contravention of federal policy,” Baran said.

The trade group sued Berkeley over the regulation, claiming it impacted chefs' ability to prepare food the way they are typically trained — using natural gas stoves.

At a lower court hearing in February 2021, Deputy City Attorney Chris Jensen told U.S. District Judge Yvonne Gonzalez Rogers the purpose of the ban is "to transition the city infrastructure away from natural gas.” He also cited President Joe Biden’s intention to eliminate fossil fuels from power generation by 2035.

Rogers found the city had the authority to regulate the distribution of natural gas when she dismissed the restaurant association's lawsuit last year.

Nothing in Berkeley’s ordinance bans gas appliances from being put in new buildings.

But the question of whether its natural gas ban is preempted by the EPCA dominated the Ninth Circuit hearing Thursday, during which the panel considered whether to revive the restaurant association’s lawsuit.

“When you are effectively prohibiting the appliances, that’s the point at which preemption kicks in,” Baran said during questioning by Donald Trump appointee Judge M. Miller Baker, sitting by designation from the U.S. Court of International Trade.

Baran said the congressional intent behind the EPCA, passed in 1975, was to ensure a domestic supply of energy in the wake of the 1973 oil crisis, and to reduce the demand for energy through conservation measures including standards for appliances.

He said the policy prevents states from adopting policies banning appliances based on the type of energy they use.

“If you can circumvent that prohibition on banning covered appliances by simply prohibiting an electric appliance from being plugged in or a gas appliance from being connected to the existing gas supply, then the preemption provision isn’t really accomplishing anything at all,” Baran said.

But Briscoe Ivester & Bazel attorney Tony Francois, arguing for the city of Berkeley, quibbled over the preemption parameters established by the EPCA, reading aloud from the statute during questioning by U.S. Circuit Judge Patrick Bumatay, a Trump appointee.

“The purpose of the statute is to authorize the Department of Energy to adopt those uniform federal efficiency standards and then to prevent states from requiring better without a waiver,” Francois said.

Judge Baker questioned what the cumulative impact on appliance manufacturers the EPCA was trying to protect could be if other cities followed Berkeley’s lead and adopted their own bans on gas hookups.

Francois again read from the statute, which listed requirements for appliance volume, capacity and reliability.

“Where you see Congress protecting the availability of consumer choice, fuel type is not one of those categories,” Francois noted.

Thomas Pulham, an assistant U.S. attorney, told the panel Berkeley’s ordinance doesn’t implicate the preemption clause of the EPCA as “it doesn’t even address energy use at all as that term is defined in the statute.”

But Senior U.S. Circuit Judge Diarmuid O’Scannlain asked why the federal government had intervened in the case at all.

“I’m just a little curious that the United States is participating in a case that supports the banning of natural gas in a city of this country. Is this a policy we should be aware of?” the Ronald Reagan appointee asked.

Pulham said the United States was not supporting Berkeley’s provision one way or the other.

“We are just addressing the scope of the preemption provision, because as we detail in our brief, we think that an overbroad reading of this could harm the federal administration of the statute,” Pulham said.

The panel took the matter under submission.

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