Reversing a district court’s decision, the Ninth Circuit Court of Appeals held that the Energy Policy and Conservation Act (EPCA) expressly preempts the City of Berkeley’s 2019 ordinance banning the installation of natural gas piping in newly constructed buildings. EPCA’s preemption provision provides that after a federal energy conservation standard becomes effective for a “covered product,” “no State regulation concerning the energy efficiency, energy use, or water use of such covered product shall be effective with respect to such product.” A “covered product” includes consumer products such as kitchen ovens. The Ninth Circuit concluded that Berkeley’s ordinance was a “regulation concerning the … energy use” of a covered product because the plain text and structure of EPCA’s preemption provision “encompasses building codes that regulate natural gas use by covered products,” including by eliminating the use of natural gas. The Ninth Circuit disagreed with the district court’s interpretation of EPCA preemption as limited to facial regulations of consumer products, finding that “EPCA preemption extends to regulations that address the products themselves and the on-site infrastructure for their use of natural gas.” The Ninth Circuit also rejected Berkeley’s argument that the plaintiff—the California Restaurant Association—lacked standing because it did not establish an imminent harm to its members. There were two concurring opinions. The first suggested a need for further guidance on the question of whether the presumption against preemption applies to express preemption provisions like the one in EPCA. The second concurrence expressed “reservations” about the plaintiff’s standing since the complaint did not identify an individual member injured by the ordinance; it also explained why the judge believed that the Berkeley ordinance “cuts to the heart” of what EPCA preemption was intended to prevent: “state and local manipulation of building codes for new construction to regulate the natural gas consumption of covered products when gas service is otherwise available to premises where such products are used.” Sabin Center Senior Fellow Amy Turner published a <a href ="https://blogs.law.columbia.edu/climatechange/2023/04/18/ninth-circuit-holds-berkeleys-gas-ban-preempted-by-u-s-energy-policy-conservation-act/">Climate Law Blog post</a> about the Ninth Circuit’s decision and its implications for other local laws.

Challenge to a City of Berkeley ordinance banning natural gas infrastructure in new buildings.

California Restaurant Association v. City of Berkeley

<p>This entry was provided by the Sabin Center for Climate Change Law. Please see the terms of use for citation and licensing of third party data.</p>

Ninth Circuit Said Federal Law Preempts Berkeley Ban on Natural Gas Piping in New Construction

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Ninth Circuit Said Federal Law Preempts Berkeley Ban on Natural Gas Piping in New Construction

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