Description: Challenge to a City of Berkeley ordinance banning natural gas infrastructure in new buildings.
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California Restaurant Association v. City of Berkeley
Case Documents:
Filing Date Type File Action Taken Summary 04/17/2023 Opinion Download District court judgment for defendant reversed and remanded and district court directed to reinstate state law claims. Ninth Circuit Said Federal Law Preempts Berkeley Ban on Natural Gas Piping in New Construction. 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 Climate Law blog post about the Ninth Circuit’s decision and its implications for other local laws. 03/22/2022 Amicus Brief Download Brief filed by amicus curiae American Gas Association in support of the California Restaurant Association. 02/27/2022 Order Oral argument scheduled. The Ninth Circuit scheduled oral argument in California Restaurant Association's appeal for May 12, 2022. 02/08/2022 Amicus Brief Download Brief filed by amici curiae National League of Cities, League of California Cities, and California State Association of Counties in support of defendant-appellee City of Berkeley and upholding of the district court. 02/08/2022 Amicus Brief Download Brief filed by California, seven other states, the District of Columbia, and New York City as amici curiae in support of defendant-appellee City of Berkeley and affirmance of the district court's decision. 02/08/2022 Amicus Brief Download Brief filed by amici curiae Climate Health Now & San Francisco Bay Physicians for Social Responsibility in support of defendant-appellee City of Berkeley and affirmance. 02/08/2022 Amicus Brief Download Brief filed by amici curiae energy and environmental law professors in support of defendant-appellee City of Berkeley. 02/08/2022 Amicus Brief Download Brief filed by amici curiae Chef Christopher Galarza and Chef Gerard Kenny in support of the City of Berkeley. 02/08/2022 Brief Download Brief filed by the United States in support of appellee. 02/01/2022 Brief Download Brief filed by appellee City of Berkeley. 11/10/2021 Amicus Brief Download Brief filed by amici curiae Air Conditioning, Heating, and Refrigeration Institute et al. in support of plaintiff-appellant California Restaurant Association and reversal of the district court. 11/03/2021 Brief Download Opening brief filed by plaintiff-appellant California Restaurant Association. -
California Restaurant Association v. City of Berkeley
Case Documents:
Filing Date Type File Action Taken Summary 07/06/2021 Order Download Federal preemption cause of action dismissed with prejudice and remaining state law claims dismissed without prejudice. Federal Court Rejected Federal Preemption Challenge to Berkeley Natural Gas Ban. 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 post on the Climate Law Blog. 10/27/2020 Reply Download Reply filed in support of motion to dismiss. 10/20/2020 Amicus Motion Download Motion filed for leave to file brief of proposed amici curiae National Association of Home Builders et al. 10/13/2020 Opposition Download Opposition filed to motion to dismiss. 09/14/2020 Motion to Dismiss Download Motion to dismiss first amended complaint filed. 08/14/2020 Complaint Download First amended complaint filed. 08/11/2020 Order Download Request to allow Berkeley to conduct early discovery of California Restaurant Association members denied. 07/22/2020 Order Download Motion to dismiss granted in part and denied without prejudice in part and leave to amend granted. In Challenge to Berkeley Natural Gas Ordinance, Federal Court Said Restaurant Association Needed to Improve Complaint. The federal district court for the Northern District of California granted in part the City of Berkeley’s motion to dismiss a challenge to its ban on natural gas infrastructure in new buildings. The court granted the motion on ripeness and standing grounds, but granted the California Restaurant Association leave to file an amended complaint by August 14, 2020 to add allegations to address the grounds for dismissal. The court also indicated during a hearing that the California Restaurant Association should do “a better job” of laying out its federal preemption argument. The court denied Berkeley’s motion to dismiss on the remaining grounds but said Berkeley could raise them again in response to the amended complaint. 04/03/2020 Response Download Response filed by City of Berkeley to surreply to motion to dismiss. 03/27/2020 Sur-Reply Download Surreply filed by California Restaurant Association on defendant's motion to dismiss on the issue of two new exhibits. 02/24/2020 Reply Download Reply filed in support of motion to dismiss. 02/10/2020 Opposition Download Opposition filed to motion to dismiss. 02/10/2020 Opposition Download Opposition filed by California Restaurant Association to request for judicial notice. 01/13/2020 Motion to Dismiss Download Motion to dismiss filed. Berkeley Moved to Dismiss Restaurant Association’s Challenge to Its Natural Gas Ordinance. The City of Berkeley moved to dismiss a lawsuit challenging the City’s ordinance that instituted a progressive ban on natural gas connections in new buildings. The City argued that there was no subject matter jurisdiction, that the California Restaurant Association lacked standing to bring the suit, that the suit was unripe, and that state law claims were barred by the doctrine of primary jurisdiction. In addition, Berkeley argued that the complaint failed to state a claim that the Energy Policy and Conservation Act preempted the ordinance. Berkeley also contended that the case should be dismissed because state law did not preempt the ordinance and the ordinance did not conflict with state energy efficiency standards. 11/21/2019 Complaint Download Complaint filed. Restaurant Industry Group Challenged Berkeley Ban on Natural Gas Infrastructure in New Buildings. An association representing the restaurant industry in California challenged the City of Berkeley’s ordinance banning natural gas infrastructure in new buildings beginning on January 1, 2020. The plaintiff asserted that both federal law (the Energy Policy and Conservation Act) and state law (the California Building Standards Code and the California Energy Code) preempted the ordinance. The plaintiff alleged that “[w]ith millions of Californians sitting in the dark to avoid wildfires, and California’s energy grid under historic strain, banning the use of natural gas is irresponsible and does little to advance climate goals.”