Berkeley Ban Dealt Near Fatal Blow by Full Ninth Circuit

The U.S. Court of Appeals for the Ninth Circuit has denied a rehearing petition filed by the City of Berkeley, CA in the landmark decision California Restaurant Association v. Berkeley. This denial means that the original Ninth Circuit ruling in Berkeley—holding that Berkeley’s gas ban was preempted by and violated federal law—will stand in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington unless reversed by the United States Supreme Court.

The opinion can be seen here.

The court issued an amended decision.  It keeps the Ninth Circuit’s reasoning and result intact.  The amended ruling appears to be directed at the scope, focusing on Berkeley’s specific regulation, which “prohibits natural gas piping in new construction buildings from the point of delivery at the gas meter.”  It states:

[T]he breadth of EPCA’s preemption provision “does not mean the sky is the limit.”  Though EPCA’s preemption provision is broad, it is not unlimited.  For instance, our holding here has nothing to say about a State or local government regulation of a utility’s distribution of natural gas to premises where covered products might be used.  We only decide that EPCA’s preemptive scope applies to building codes that regulate the gas usage of covered appliances on premises where gas is otherwise available.

And its conclusion is now:

In sum, Berkeley can’t bypass EPCA’s preemption of building codes that directly ban covered products by instead simply prohibiting the piping that transports natural gas from the utility’s meter to the appliance.  EPCA thus preempts the Ordinance’s effect on covered products.

Eight of the 28 active judges who weren’t recused (and so were eligible to vote) dissented.  Three senior judges (who aren’t eligible to vote) agreed with the dissent.  The dissent argues that the court improperly used colloquial meanings of key statutory terms (“energy use” and “point of use”) instead of their technical meanings.  In short, the dissent believes “energy use” is fixed when the product rolls off of the factory floor.  The dissent also indicates that its reading means that EPCA does not preempt direct bans on covered appliances.

NPGA plans to submit the decision to the record as part of our involvement in the litigation over the Washington State Building Code gas ban. For further detail and analysis, please contact NPGA Associate General Counsel Kate Gaziano.

Sarah Jorgensen — lead counsel for the supporters of energy choice in the Berkeley case and our counsel in the New York State gas bans litigation — will join Steve Kaminski, NPGA President and CEO, for a fireside chat at the NPGA Winter Board meeting in Monterey, CA, February 6 – 8. Registration for the meeting is open. Please join us!