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City of Berkeley to Defend New Natural Gas Ban in Ninth Circuit

May 11, 2022, 8:45 AM

Berkeley, Calif., will urge the Ninth Circuit on Thursday to uphold the city’s ban on new natural gas hookups that a restaurant group argues is preempted by federal law.

The city adopted the ordinance in July 2019 to eliminate natural gas infrastructure and associated emissions in new buildings where it’s possible to integrate all-electric infrastructure.

The California Restaurant Association told the U.S. District Court for the Northern District of California that the ordinance was preempted by the Energy Policy and Conservation Act. But Judge Yvonne Gonzalez Rogers declined to take up such an “expansive interpretation” of the act in July 2021.

The restaurant group told the U.S. Court of Appeals for the Ninth Circuit in briefing that Rogers was wrong. Banning a building’s piping needed to supply natural gas to appliances “effectively bans those appliances,” the group said. The ordinance is “one step removed physically, but it does the same thing functionally,” according to the group.

EPCA standards “are about designing and making appliances, not distributing or making natural gas available,” the city tells the appeals court. The ordinance doesn’t affect how appliances are designed or made, the city says, so it’s not preempted by the act.

The federal government and multiple states, including California and New Jersey, filed briefs in support of the city’s position. The ordinance has the “downstream effect of preventing the use” of certain products in some locations, but that’s not enough to bring it “within the scope of EPCA’s preemption provision,” the Justice Department told the court.

The court directed counsel to address the significance of the act’s limits on a governor’s authority to ban “major fuel burning stationary sources from using fuels, including natural gas.” The court also asked counsel to address a provision of the act that waives federal preemption if the Secretary of Energy declares an energy emergency condition.

Judges Diarmuid F. O’Scannlain, Patrick J. Bumatay, and Court of International Trade Judge M. Miller Baker are on the panel.

Reichman Jorgensen Lehman & Feldberg LLP; Kellogg, Hansen, Todd, Figel & Frederick PLLC; and Weinberg, Wheeler, Hudgins, Gunn & Dial LLC represent the restaurant group. Brian Baran and Courtland L. Reichman of Reichman Jorgensen will argue the case.

The Berkeley City Attorney’s Office and Briscoe Ivester & Bazel LLP represent the city. Anthony L. Francois of Briscoe Ivester will argue the case.

Thomas Pulham of the Justice Department will argue for the federal government.

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; Nicholas Datlowe at ndatlowe@bloomberglaw.com