Earlier this month, several construction and gas industry groups who had challenged Washington State’s groundbreaking new energy code in Rivera v. Washington State Building Codes Council, 23-cv-3070 (E.D. Wash.), voluntarily withdrew their case. The law would have required some new residential buildings to use heat pumps for space heating and for hot water. Other types of appliances would still have been permitted as backups, but only for cold temperatures or for times when the heat pump could not operate. Despite this concession, the plaintiffs sued the state, arguing that the regulations actually banned gas appliances for space and water heaters.

The Rivera case is important not only because Washington’s energy code was the first of its kind, but also because the plaintiffs were one of the first groups to have drawn on the reasoning in California Restaurant Association v. Berkeley, 65 F.4th 1045 (9th Cir. 2023). The Berkeley opinion struck down a local ordinance prohibiting gas infrastructure in most new buildings, strongly implying that the federal Energy Policy and Conservation Act (EPCA) does not allow states or localities to prohibit the use of gas appliances. Relying on Berkeley, the Rivera plaintiffs argued that EPCA prevents Washington from banning gas appliances, and by requiring heat pumps to be the primary appliance for space and water heating, Washington had done so.

The withdrawal of Rivera represents only a temporary truce, however—not a victory. It came about because the state’s code agency delayed the effective date of its new regulations itself, in order to consider the impact of the Berkeley decision. The Building Codes Council is even considering alternative proposals that would replace its first-in-the-nation heat-pump mandate—possibly to provide flexibility to builders to use natural gas appliances if they reduce energy use elsewhere. If the Council sticks to its original plan, the Rivera plaintiffs’ voluntary withdrawal means that they will be able to sue again.

Meanwhile, the Berkeley case itself is in doubt. The City of Berkeley has asked the Ninth Circuit to rehear it en banc, meaning that a new group of eleven judges would be selected in order to review the initial decision, made by a three-judge panel. While a re-hearing is rare, the Ninth Circuit has already shown an interest in the case by directing the Berkeley plaintiffs to respond to the petition. If the Ninth Circuit does decide to rehear the case, the initial Berkeley opinion will be replaced with whatever the new, eleven-judge panel decides on the case.

There is reason to think that a new panel would treat the case differently, both because of the somewhat anomalous original panel (a Reagan appointee and two Trump appointees, one of whom was only temporarily assigned to the Ninth Circuit) and the controversial nature of the Berkeley opinion, which attracted a slew of amicus briefs in support of rehearing, including one from the federal government, which is very rare at this stage. Although the appellate court has no time limit on its consideration of the petition for rehearing en banc, it is likely a decision will be made within a few months.

Daniel Carpenter-Gold, Staff Attorney
August 22, 2023