In a July 10 commentary, we wrote about two exciting opinions from the Second and Ninth Circuits upholding building and appliance decarbonization laws in New York and California. The wins have continued since then, with rulings upholding building decarbonization efforts in Denver, Colorado and in Oak Park, Illinois.
EPCA Background
The Energy Policy and Conservation Act (“EPCA”) creates nationwide standards for appliance efficiency, among other things. EPCA also “preempts” state and local regulations, meaning that it prevents those regulations from affecting appliances covered by EPCA. Specifically, EPCA provides that “no State [or local] regulation concerning the energy efficiency, energy use, or water use of [a] covered product shall be effective with respect to such product,” with some exceptions.
In California Restaurant Association v. Berkeley, the Ninth Circuit held that EPCA blocked a local ordinance prohibiting gas infrastructure in new buildings. The Berkeley decision has prompted a barrage of industry litigation against state and local regulations. To date, however, no other court has followed the Ninth Circuit’s decision and the rulings from Denver and Oak Park maintain that winning streak.
Denver Decision
In Restaurant Law Association v. Denver, industry associations sued the city of Denver over its updated building code that restricts or prohibits the use of various gas space or water appliances when replaced in commercial and multi-family buildings. The industry groups, relying heavily on the Berkeley decision, argued that these restrictions were preempted by EPCA because they are regulating the energy use of covered appliances.
The District Court disagreed. The court found that both the “structure and context” of EPCA supported a narrower reading of preemption. The structure of EPCA, the court concluded, demonstrates that the term “energy use” is a technical one that applies at the time the product is manufactured, not at its point of use by a consumer. The context of EPCA’s legislative history showed that Congress was concerned with uniform energy efficiency standards for appliances, not with guaranteeing that particular appliances would be available to consumers. The court cited favorably the recent Second Circuit decision (Association of Contracting Plumbers v. City of New York) (“Plumbers”), as well as a dissent filed in the Berkeley decision from a rejected attempt to rehear the case with a larger panel of judges.
Oak Park Decision
In Clean Energy Choice Coalition v. Village of Oak Park a coalition of industry and labor groups challenged an Oak Park ordinance requiring that most new buildings use electricity as their sole energy source. The industry challengers argued, based on the Berkeley case, that EPCA preempts this requirement because it would prohibit the use of gas in affected buildings.
The District Court, as in the Denver decision, agreed with the Plumbers decision from the Second Circuit as well as the Berkeley dissent and cited heavily to both. The court concluded that “’energy use’ in EPCA refers to a predetermined value that is assigned to a product before it reaches consumers.”
Tallying the Wins
This has been a truly impressive streak of wins for local and state governments seeking to decarbonize buildings. Of the ten EPCA preemption decisions to date, nine have upheld the laws and found them not preempted. Of course, many of these decisions could still face potential appeals and there are still court challenges pending at the district court level in Maryland, Colorado, and New Jersey, and at the appeals court level in Washington, D.C. and Maryland (4th Circuit). But the emerging consensus of the courts that have considered EPCA preemption cases to date is that the Berkeley decision got it wrong.
For local and state jurisdictions deciding what building decarbonization policies to pursue, this series of wins should give some comfort that there is a broader range of policy options likely available than if the Berkeley decision had spread.
Below is a graphic showing the cases decided to date. For up to date information on particular cases, we’d encourage you to visit our litigation tracker.
Also, for jurisdictions or community organizations seeking a better understanding of the legal landscape for building decarbonization in your jurisdiction, we’d encourage you to reach out to us at the Public Health Law Center.
| Case | U.S. District | District Court Decision | Circuit Court Result | Status |
|---|---|---|---|---|
| California Restaurant Association v. City of Berkeley | Northern District of California | Dismissed | Struck down in 9th Circuit | Closed |
| Rivera v. Anderson | Western District of Washington | Dismissed | 9th Circuit panel can rule on the appeal at any time | Open |
| Association of Home Appliance Manufacturers v. Weiser | District of Colorado | Pending | NA | Open |
| United States v. City of Morgan Hill | Northern District of California | NA (Defendants amended laws) | NA | Closed |
| Elizabeth Condominium Association et al. v. Montgomery County | District of Maryland | Pending | NA | Open |
| Colorado Apartment Association v. Ryan | District of Colorado | Pending | NA | Open |
| National Association of Home Builders et al. v. Montgomery County | District of Maryland | Dismissed | Pending in 4th Circuit | Open |
| Rinnai America Corp. v. South Coast Air Quality Management District | Central District of California | Dismissed | 9th Circuit affirmed the district court and upheld the SCAQMD rule | Pending petition for rehearing en banc |
| National Association of Home Builders et al. v. Washington D.C. | District of Columbia | Pending | NA | Open |
| United States v. Township of Morris | District of New Jersey | Pending | NA | Open |
| Association of Contracting Plumbers of the City of New York et al. v. City of New York | Southern District of New York | Dismissed | Dismissed | Pending petition for rehearing en banc |
| Mulhern Gas Co. v. Mosley | Northern District of New York | Dismissed | Dismissed | Pending petition for rehearing en banc |
| Maryland Building Industry Association, Inc. et al v. McIlwain | District of Maryland | Dismissed | Pending in 4th Circuit | Open |
| Clean Energy Choice Coalition, NFP v. Village of Oak Park, IL | Northern District of Illinois | Dismissed | NA | Closed |
| Restaurant Law Center v. Denver | District of Colorado | Dismissed | NA | Closed |
For more information, see this article from Canary Media.
Jamie Long - Senior Staff Attorney
August 17, 2026