California Restaurant Association v. City of Berkeley

On August 12, 2024, California Restaurant Association (CRA) and the City of Berkeley filed a stipulation of voluntary dismissal without prejudice of CRA’s lawsuit challenging the City’s ban on natural gas infrastructure in new construction. The parties’ stipulation stated that they had “resolved this case in its entirety.” After the Ninth Circuit ruled that the Energy Policy and Conservation Act preempted the Berkeley ordinance, the City repealed the law in May 2024.

After the City of Berkeley agreed to repeal its ordinance banning natural gas infrastructure in new buildings, the federal district court for the Northern District of California granted a request by the City and California Restaurant Association (CRA) to hold CRA’s lawsuit challenging the ban in abeyance until September 10, 2024 to allow the City time to implement the repeal. The Ninth Circuit held in April 2023 that federal law expressly preempted the ordinance, and the Ninth Circuit denied a petition for rehearing en banc in January 2024.

The federal district court for the Northern District of California ruled that a restaurant trade association failed to state a claim that the federal Energy Policy and Conservation Act (EPCA) preempted the City of Berkeley’s ordinance prohibiting natural gas infrastructure in new construction. The court rejected Berkeley’s jurisdictional grounds for dismissal (standing and ripeness) but found that the association failed to demonstrate that EPCA expressly preempted Berkeley’s ordinance because the ordinance “does not directly regulate either energy use or energy efficiency of covered appliances.” The court further found that EPCA’s legislative history did not support the plaintiff’s “expansive interpretation.” The court also noted that states and localities “expressly maintain control over the local distribution of natural gas under related federal statutes” such as the Natural Gas Act. The court declined to exercise supplemental jurisdiction over the plaintiff’s state law claims and dismissed them without prejudice. Sabin Center Senior Fellow Amy Turner discussed the court’s decision in a <a href="http://blogs.law.columbia.edu/climatechange/2021/07/07/california-restaurant-association-v-berkeley-and-local-natural-gas-restrictions/">post</a> on the Climate Law Blog.

The Ninth Circuit Court of Appeals denied a petition for rehearing en banc of its ruling that the federal Energy Policy and Conservation Act expressly preempts the City of Berkeley’s 2019 ordinance prohibiting installation of natural gas piping in newly constructed buildings. The Ninth Circuit also amended its opinion, including to state that its ruling “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.” Eight judges joined in a written dissent from the denial of rehearing en banc, and an additional three judges agreed with the dissent. Judge Friedland, who authored the dissent, wrote that she felt compelled to dissent “to urge any future court that interprets the Energy Policy and Conservation Act not to repeat the panel opinion’s mistakes.” The dissent characterized the panel opinion as “entirely misinterpreting a narrow preemption provision about appliance standards” by attributing “colloquial meanings” to key statutory terms “instead of the technical meanings required by established canons of statutory interpretation.” The dissent stated: “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.”

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