Ninth Circuit Declines to Rehear Berkeley Natural Gas Ban
The U.S. Court of Appeals for the Ninth Circuit declined on January 2, 2024 to rehear en banc its April 2023 decision by a three-judge panel that overturned Berkeley’s ban on natural gas in new construction. The majority opinion of the full panel of judges concluded that the Energy Policy and Conservation Act (EPCA) “preempts Berkeley’s building code’s effect against covered products.”
The California Restaurant Association challenged Berkeley’s 2019 prohibition on the installation of natural gas piping in new residential and commercial buildings. The association argued that the 1975 federal Energy Policy and Conservation Act (EPCA), which gives the U.S. government authority to set energy-efficiency standards for appliances, preempts Berkeley’s ordinance.
In 2021, a U.S. district court upheld the ordinance by holding that the city was regulating natural gas, and not energy-efficiency standards for appliances. The Ninth Circuit rejected the lower court’s decision and read the EPCA’s preemption provision as broader in scope than the lower court did. (See Ninth Circuit Overturns Berkeley Natural Gas Ban.)