The U.S. Court of Appeals for the Ninth Circuit denied a petition for rehearing filed by the City of Berkeley in the landmark decision California Restaurant Association v. City of Berkeley, the Association said. The denial signifies that the panel’s ruling, which found Berkeley’s natural gas ban to be in violation of federal law, will remain binding for Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, the Association said.
The decision appears to assert the primacy of the federal Energy Policy and Conservation Act (EPCA), and could have implications for energy policy in additional states and localities where similar bans have been proposed or are being considered. The Connecticut Energy Marketers Association noted in its newsletter, CEMA Pipeline, “since EPCA covers oil- and propane-fired furnaces and boilers, this ruling would likely prevent cities and states from outright banning our industry’s appliances as well, whether through a direct ban or through a code change.”
In April 2023, the Ninth Circuit ruled in favor of the CRA, concluding that Berkeley’s ban on gas piping concerned the energy use of appliances covered by the EPCA. In denying a rehearing, the Ninth Circuit affirms its opinion that the City of Berkeley cannot bypass federal preemption by banning the infrastructure necessary to service EPCA-covered products, the Restaurant Association said in its statement.
In addition to denying a rehearing, the Ninth Circuit ordered that no future petitions be entertained in the matter. In response to the decision, the California Restaurant Association President and CEO Jot Condie said in a Jan. 4 statement: “The Ninth Circuit’s resolution of this matter allows restaurants to proceed with plans to establish new locations, nurturing job creation within California communities and feeding the vitality [of] our economy.”
The California Restaurant Association represents the food service industry, advocating for restaurants on a slate of local, state, and national issues. The CRA was represented by Reichman Jorgensen Lehman & Feldberg LLP (RJLF). In response to this final decision by the Ninth Circuit, RJLF partner Sarah O. Jorgensen said: “This landmark ruling underscores the preeminence of federal law in energy policy matters, setting a powerful precedent for future cases. It reinforces that under EPCA, energy policy is a national imperative, demanding unified regulation across the country. State and local governments have regulatory power, but they must comply with federal law.”