Synopsis

The California Restaurant Association (CRA) challenged the City of Berkeley’s January 2020 amendment to the Berkeley Municipal Code, which prohibits natural gas infrastructure in most newly constructed buildings within the city.

Why it matters for public health

The Berkeley Municipal Code states that the amendment is necessary to protect the health and safety of residents, including restaurant workers and diners. The combustion of natural gas emits hazardous pollutants such as nitrogen dioxide, carbon monoxide, and benzene. Health and safety concerns associated with these pollutants include respiratory illnesses like asthma in addition to cancer and other health conditions caused and exacerbated by poor air quality.

Background

On August 6, 2019, the City of Berkeley amended its Health and Safety Code by adding Chapter 12.80. This chapter, “Prohibition of Natural Gas Infrastructure in New Buildings,” prohibits natural gas infrastructure in most newly constructed buildings, effective January 1, 2020.1 The amendment also includes a public interest exception for special circumstances that requires a “minimally necessary and specifically tailored” natural gas infrastructure.

In its complaint, the CRA alleged that the amendment requires all appliances in newly constructed buildings to use only electric power and not natural gas, therefore prohibiting gas appliances. According to the CRA, Congress preempted regulations that affect the type of energy used by covered appliances through the Energy Policy and Conservation Act (EPCA) and subsequent amendments, unless detailed conditions are met for such state or local laws to avoid preemption.

The CRA brought four causes of action against the City of Berkeley:

  1. federal preemption by the EPCA;
  2. preemption by California law as a void and unenforceable exercise of police power;
  3. preemption by California law as conflicting with California Building Standards Code ("CBSC");
  4. preemption by California law as conflicting with the California Energy Code ("CEC").

Proceedings

District Court

On November 21, 2019, the CRA filed its lawsuit in the District Court for the District of Northern California. The City of Berkeley moved to dismiss the CRA’s complaint on January 13, 2020. The court granted the city’s motion in part on the grounds of ripeness and standing. The court dismissed the remaining grounds for the motion without prejudice, permitting Berkeley to raise these arguments again in response to the filing of any amended complaint. Subsequently, the court denied Berkeley’s request to conduct pre-answer discovery as to the identity of the member or members that would open a restaurant but for the city’s ordinance.

The CRA filed its first amended complaint on August 14, 2020. Berkeley then moved to dismiss the first amended complaint on substantively identical grounds as its prior motion. The court further received an unopposed motion for leave to file an amicus brief from the amici, which the court granted. The court heard oral arguments on the motion on February 2, 2021. On July 6, 2021, the district court granted Berkeley’s motion to dismiss the federal claim, finding the CRA’s “expansive” interpretation of the EPCA unpersuasive. Upon dismissing the federal claim, the Court declined to exercise supplemental jurisdiction over the three state claims.

Ninth Circuit

On August 5, 2021, the CRA appealed to the Ninth Circuit only with respect to the federal preemption claim, reviving its positions that 1) the EPCA preempts state and local legislation that bans natural gas appliances, and 2) Berkeley’s ordinance is preempted because “banning the building’s piping needed to supply natural gas to appliances effectively bans [gas] appliances.”2 However, the opinion left open several pathways for jurisdictions to pursue electrification policies, including through EPCA’s exemption for building codes (see 42 U.S.C. § 6297(c)), local ordinances and contracts regulating the gas distribution system, and laws targeting air emissions rather than energy input. On April 17, 2023,the Ninth U.S. Circuit Court of Appeals in San Francisco sided with the CRA to block the city’s efforts, stating that it violates federal law that gives the U.S. government the authority to set energy-efficiency standards for appliances.

Litigation Status (OPEN)

On January 2, 2024, the Ninth Circuit rejected the City of Berkeley’s petition for en banc review, while also amending its April 2023 opinion. Eight active judges filed a dissent to the rejection of Berkeley’s petition, supported by three senior judges.


1 Oral arguments were heard in May 2022 and the appeal is currently pending before the Ninth Circuit Court of Appeals. 

2 Plaintiff-Appellant's Opening Br. at 26, Cal. Rest. Assoc. v. City of Berkeley, No. 21-16278 (9th Cir. filed Nov. 3, 2021), ECF No. 13-1.

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