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Berkeley Ban on Natural Gas Hookups Faces Ninth Circuit Scrutiny

May 12, 2022, 7:06 PM

A panel of Ninth Circuit judges seemed unsure Thursday that a California city’s ban on new natural gas hookups amounted to a de facto ban on natural gas appliances that is preempted by federal law.

The panel heard oral arguments in a dispute between Berkeley, Calif., and the California Restaurant Association, which says the city’s ordinance prevents its members from using natural gas appliances in new buildings. The ordinance is preempted by the Energy Policy and Conservation Act because it effectively bans those appliances, the group says.

The ordinance is “as close as you can get to directly regulating the appliance without regulating the appliance,” said Brian Baran, an attorney at Reichman Jorgensen Lehman & Feldberg LLP representing the association.

Judge Diarmuid F. O’Scannlain said he was having difficulty connecting the ordinance with the preemption. Court of International Trade Judge M. Miller Baker, sitting by designation, also noted that there’s “nothing in the ordinance that prevents” business owners from installing gas appliances.

Baran acknowledged the ordinance doesn’t deal with appliances. But he emphasized that this dispute is about the “effect of the plan, not the motivation.”

O’Scannlain said Baran had a “good argument” that the EPCA is intended to protect manufacturers. If multiple states adopted a similar regulation, that effect “would certainly not be positive for manufacturers of gas appliances,” he told Anthony L. Francois of Briscoe Ivester & Bazel LLP, who represented the city.

A regulation has to prevent the use of an appliance because it isn’t more efficient than federal standards to be preempted, Francois said. His view was echoed by Justice Department attorney Thomas Pulham, who told Judge Patrick J. Bumatay that Berkeley would be preempted if it said others can’t use gas hookups because of efficiency.

New construction buildings could end up using less efficient electrical appliances under the city’s ordinance, Pulham said. The ordinance “doesn’t guarantee more efficient products,” he said.

Pulham emphasized that the government wasn’t arguing whether the ordinance was a good policy. It was simply “addressing the scope of the preemption provision,” he said.

Kellogg, Hansen, Todd, Figel & Frederick PLLC and Weinberg, Wheeler, Hudgins, Gunn & Dial LLC also represented the restaurant group.

The Berkeley City Attorney’s Office also represented the city.

The case is Cal. Rest. Ass’n v. City of Berkeley, 9th Cir., No. 21-16278, 5/12/22.

To contact the reporter on this story: Maya Earls in Washington at mearls@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com

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