Cal. Rest. Ass'n v. City of Berkeley
| Decision Date | 06 July 2021 |
| Docket Number | Case No. 4:19-cv-07668-YGR |
| Citation | 547 F.Supp.3d 878 |
| Parties | CALIFORNIA RESTAURANT ASSOCIATION, Plaintiff, v. CITY OF BERKELEY, Defendant. |
| Court | U.S. District Court — Northern District of California |
Courtland Lewis Reichman, Reichman Jorgensen Lehman & Feldberg LLP, Redwood Shores, CA, Chiseul Kim, Pro Hac Vice, Kellogg, Hansen, Todd, Figel and Frederick, P.L.L.C., Washington, DC, Gary J. Toman, Pro Hac Vice, Weinberg Wheeler Hudgins Gunn & Dial LLP, Sarah O. Jorgensen, Reichman Jorgensen Lehman & Feldberg LLP, Atlanta, GA, Laura Elizabeth Carwile, Reichman Jorgensen Lehman & Feldberg LLP, Redwood City, CA, for Plaintiff.
Brendan O. Darrow, City of Berkeley Rent Stabilization Board, Christopher D. Jensen, Farimah Faiz Brown, Berkeley City Attorney's Office, Berkeley, CA, Anthony Lee Francois, Peter Stanley Prows, Briscoe Ivester & Bazel LLP, San Francisco, CA, for Defendant.
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
Re: Dkt. No. 47
Plaintiff California Restaurant Association ("CRA") brings this action challenging defendant City of Berkeley's ("Berkeley") recently enacted and now in effect ordinance (the "Berkeley Ordinance" or the "Ordinance") that affects the availability of natural gas in new construction within Berkeley. CRA brings four causes of action against Berkeley: (1) federal preemption by the Energy Policy and Conservation Act ("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"); and (4) preemption by California law as conflicting with the California Energy Code ("CEC").
Now before the Court is Berkeley's motion to dismiss the operative first amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and (b)(6). (See Dkt. Nos. 46 (first amended complaint), 47 (motion to dismiss).) CRA opposes the motion. (Dkt. No. 52; see also Dkt. No. 58 (reply).) The Court further received an amici curiae brief from: (i) the National Association of Home Builders; (ii) the National Association of Manufacturers; (iii) the Air Conditioning, Heating, and Refrigeration Institute; and (iv) the Hearth, Patio, & Barbecue Association (collectively, the "amici"). (Dkt. No. 66.) The Court heard oral argument on February 2, 2021. (Dkt. No. 70.) For the reasons stated below, the Court GRANTS IN PART AND DENIES IN PART the motion to dismiss, and GRANTS IN PART the request for judicial notice.
The dispute in this litigation centers on a recent ordinance adopted by Berkeley, referred to by the parties as the "Berkeley Ordinance" or the "Ordinance" (Berkeley Ordinance No. 7,672-N.S.).2 The Court summarizes the allegations from the operative first amended complaint that are relevant to the disposition of the pending motion. The Court further includes in its summaries the documents and materials for which it has taken judicial notice. Thus:
CRA: Plaintiff CRA is a nonprofit mutual benefit corporation organized under the laws of California with its principal office in the County of Sacramento, California. As alleged, CRA is an association of members in the restaurant industry, and has a substantial interest in having the laws relating to building standards executed and the duties at issue here enforced. CRA's members include both restaurant owners and chefs. CRA has members that do business in Berkeley, California, or who seek to do business in Berkeley, and whose interests will be directly affected by this ordinance. Specifically, the CRA has one or more members who are interested in opening a new restaurant or in relocating a restaurant to a new building in Berkeley after January 1, 2020, but who cannot do so because of the Ordinance's ban on natural gas. In other words, one or more of its members would seek to open or relocate a restaurant in a new building in Berkeley but for the ban on natural gas. As alleged, its members will be irreparably harmed by the Berkeley Ordinance through the loss of the ability to use natural gas appliances in newly constructed buildings.
Berkeley: Defendant Berkeley is a California city located within the boundaries of the United States District Court for the Northern District of California.
The Ordinance: The Berkeley City Council passed the Berkeley Ordinance on July 23, 2019, and was later signed into law by the Berkeley Mayor, Jesse Arreguin, on August 6, 2019.
The Berkeley Ordinance amends the Berkeley Municipal Code ("BMC"), adding a new Chapter 12.80 ("Prohibition of Natural Gas Infrastructure in New Buildings") prohibiting natural gas infrastructure in new buildings effective January 1, 2020. The Ordinance prohibits "Natural Gas Infrastructure" in "Newly Constructed Buildings." Berkeley Ordinance § 12.80.040.A. Natural Gas Infrastructure is defined as "fuel gas piping, other than service pipe, in or in connection with a building, structure or within the property lines of premises, extending from the point of delivery at the gas meter." Id. § 12.80.030.E.
The Berkeley Ordinance provides that its requirements "shall apply to Use Permit or Zoning Certificate applications submitted on or after the effective date of this Chapter for all Newly Constructed Buildings proposed to be located in whole or in part within the City," id. § 12.80.020.A, and accordingly relies on Berkeley's general police power as the source of its authority. Significantly, the Ordinance is part of Title 12 of the Berkeley Municipal Code, which concerns "Health and Safety." This is separate from Title 19, regarding "Buildings and Construction," which contains Berkeley's building code and energy code.
The Berkeley Ordinance contains two exemptions. The first exemption, in section 12.80.040.A.1, provides that "Natural Gas Infrastructure may be permitted in a Newly Constructed Building if the Applicant establishes that it is not physically feasible to construct the building without Natural Gas Infrastructure." Id. § 12.80.040.A.1. The definition of "physically feasible" allows for an exemption from the ban on natural gas infrastructure where compliance with the California Energy Code ("CEC") would be impossible for all-electric construction. Id.3 CRA alleges that this merely represents a "phasing in" of the ban as the CEC models all-electric construction for additional building types – i.e. , there is no "exemption" for the types of buildings already covered by the ban.
The second exception allows for an exemption from the ban on natural gas infrastructure when it is established that the use of natural gas "serves the public interest." Id. § 12.80.050.A. This exemption allows for a discretionary determination made by the City's Zoning Adjustments Board or, in some cases at the staff level, as part of the entitlement process for new construction. Id. § 12.80.020.D. In reviewing requests for a public interest exemption, the Zoning Adjustment Board or City staff must consider (1) "[t]he availability of alternative technologies or systems that do not use natural gas" and (2) "[a]ny other impacts that the decision to allow Natural Gas Infrastructure may have on the health, safety, or welfare of the public." Id. § 12.80.050.A.
With regards to EPCA, CRA alleges that the Berkeley Ordinance's standards concern the energy efficiency and energy use of appliances covered by the EPCA insofar as the Ordinance requires all appliances in newly constructed buildings to use only electric power and not natural gas. In other words, by cutting off the gas pipeline, the Ordinance makes impossible and therefore effectively prohibits the use of gas appliances. This action, according to CRA, is preempted by the EPCA, which CRA contends has been progressively amended to include binding federal energy efficiency standards. In short, CRA asserts and alleges that the United States Congress, through the EPCA and the subsequent statutes, meant to preempt the entire field of energy use by covered appliances, and replace it with detailed conditions that must be met for such state or local laws to avoid preemption.
Despite the foregoing, the Ordinance expressly provides that it "shall in no way be construed as amending California Energy Code requirements under California Code of Regulations, Title 24, Part 6, nor as requiring the use or installation of any specific appliance or system as a condition of approval." Id. § 12.80.020.C. According to the express terms of the Ordinance, the Ordinance attempts to address the global impacts caused by the combustion of natural gas. Id. §§ 12.80.010.A, 12.80.010.D.
The EPCA: The EPCA regulates the energy efficiency of consumer products including air conditioners, water heaters, furnaces, clothes washers and dryers, and stoves. See 42 U.S.C. §§ 6292, 6295. As relevant here, the EPCA's consumer standards explicitly preempt state and local regulations "concerning the energy efficiency" and "energy use" of the products for which the EPCA sets its own energy efficiency standards. Id. § 6297(c). Section 6297(c) expressly provides:
[E]ffective on the effective date of an energy conservation standard established in or prescribed under section 6295 of this title for any covered product, no State regulation concerning the energy efficiency, energy use, or water use of such covered product shall be effective with respect to such product ....
Id. The term "covered product" includes various categories of consumer products mentioned above, including appliances and lighting. Id. §§ 6291(2), 6292.
The EPCA contains only limited exceptions to this general rule of preemption for consumer appliances. Specifically, a regulation is not preempted if it "is in a building code for new construction" and must further meet seven specific explicit requirements. Id. §§ 6297(c)(3), (f)(3).
The EPCA also governs the energy efficiency of certain commercial appliances, including air conditioners, furnaces, water...
To continue reading
Request your trial
-
Cal. Rest. Ass'n v. City of Berkeley
...and because its impact is "at best indirect[]" on consumer products, the district court ruled that EPCA does not preempt the Ordinance. Id. It then declined to exercise supplemental jurisdiction and dismissed the state-law claims. Id. The Association timely appealed, and we review de novo. ......
- Roy H. v. Saul
-
Federal Law Preempts Berkeley's Natural Gas Pipeline Ban
...into areas that are historically the province of state and local regulation." California Restaurant Association v. City of Berkeley, 547 F. Supp. 3d 878, 891 (N.D. Cal. 2021). The appeals court's opinion examines the text, structure, and context of the ECPA to evaluate the preemption argume......