Cal. Rest. Ass'n v. City of Berkeley

• Decision Date: 17 April 2023
• Docket Number: 21-16278
• Parties: CALIFORNIA RESTAURANT ASSOCIATION, a California nonprofit mutual benefit corporation, Plaintiff-Appellant, v. CITY OF BERKELEY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

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CALIFORNIA RESTAURANT ASSOCIATION, a California nonprofit mutual benefit corporation, Plaintiff-Appellant, v. CITY OF BERKELEY, Defendant-Appellee.

No. 21-16278

United States Court of Appeals, Ninth Circuit

April 17, 2023

Argued and Submitted May 12, 2022

Appeal from the United States District Court for the Northern District of California D.C. No. 4:19-cv-07668- YGR Yvonne Gonzalez Rogers, District Judge, Presiding

Brian C. Baran (argued), Courtland L. Reichman, Laura Carwile, and Ariel C. Green Anaba, Reichman Jorgensen Lehman &amp Feldberg LLP, Redwood Shores, California; Sarah Jorgensen Reichman Jorgensen Lehman & Feldberg LLP, Atlanta Georgia; Kylie Chiseul Kim, Kellogg Hansen Todd Figel &amp Frederick PLLC, Washington, D.C.; Gary J. Toman, Weinberg Wheeler Hudgins Gunn &Dial, Atlanta, Georgia; for Plaintiff-Appellant.

Anthony L. Francois (argued) and Peter S. Prows, Briscoe Ivester & Bazel LLP, San Francisco, California; Farima Faiz Brown and Brendan Darrow, Deputy City Attorneys; Office of the City Attorney; Berkeley, California; for DefendantAppellee.

Thomas G. Pulham (argued), Michael S. Raab, and H. Thomas Byron III, Appellate Staff Attorneys; Stephanie Hinds, Acting United States Attorney; Brian M. Boynton, Acting Assistant Attorney General; United States Department of Justice; Washington, D.C.; Emily Hammond, Deputy General Counsel for Litigation Regulation and Enforcement; Samuel T. Walsh, General Counsel; Department of Energy; Washington, D.C.; for Amicus Curiae United States of America.

Michael L. Murray and Matthew J. Agen, American Gas Association, Washington, D.C., for Amicus Curiae American Gas Association.

Megan H. Berge, Baker Botts LLP, San Francisco, California; Francesca Eick, Baker Botts LLP, Austin, Texas; JoAnna Adkisson, Baker Botts LLP, Washington, D.C.; for Amici Curiae Air Conditioning Heating and Refrigeration Institute; California Building Industry Association, Hearth Patio &Barbecue Association; National Association of Home Builders, and National Association of Manufacturers.

Michael Burger, Jennifer Danis, and Amy E. Turner, Sabin Center for Climate Change Law, New York, New York, for Amici Curiae National League of Cities, League of California Cities, and California State Association of Counties.

Somerset Perry, M. Elaine Meckenstock, Jonathan A. Wiener, and Theodore A. McCombs, Deputy Attorneys General; Myung J. Park and David A. Zonana, Supervising Deputy Attorneys General; Robert W. Byrne and Edward H. Ochoa, Senior Assistant Attorneys General; Rob Bonta, Attorney General of California; Office of the California Attorney General; San Diego, California; for Amici Curiae the States of California, Maryland, New Jersey, New Mexico, New York, Oregon, and Washington, the

Commonwealth of Massachusetts, the District of Columbia, and the City of New York.

Regina J. Hsu, Earthjustice, San Francisco, California; Timothy R. Oberleiton, Earthjustice, Washington, D.C.; for Amici Curiae Climate Health Now and San Francisco Bay Physicians for Social Responsibility.

Daniel N. Carpenter-Gold, Cara A. Horowitz, and Julia E. Stein, UCLA Law School Frank G. Wells Environmental Law Clinic, Los Angeles, California, for Amici Curiae Energy and Environmental Law Professors.

Kimberly E. Leefatt, Natural Resources Defense Council, Santa Monica, California; Thomas Zimpleman, Natural Resources Defense Council, Washington, D.C.; for Amici Curiae Chef Christopher Galarza and Ched Gerard Kenny II.

Before: Diarmuid F. O'Scannlain and Patrick J. Bumatay, Circuit Judges, and M. Miller Baker, ^[*] Judge.

SUMMARY ^[**]

Energy Law / Preemption

The panel reversed the district court's dismissal of the California Restaurant Association's action alleging that the Energy Policy and Conservation Act preempts a City of Berkeley regulation that prohibits the installation of natural gas piping within newly constructed buildings.

The panel held that the California Restaurant Association, whose members include restaurateurs and chefs, had Article III associational standing to bring this suit because it demonstrated that (1) at least one of its members had suffered an injury in fact that was (a) concrete and particularized and (b) actual or imminent, rather than conjectural or hypothetical; (2) the injury was fairly traceable to the challenged action; and (3) it was likely, not merely speculative, that the injury would be redressed by a favorable decision. Specifically, the Association established that the ordinance would imminently harm its members because it alleged that its members would open or relocate a restaurant in Berkeley but for the city's ban on natural gas piping.

The panel held that the Energy Policy and Conservation Act preempts the Berkeley ordinance. The panel wrote that, in this express preemption case, it addressed the plain meaning of the Act without any presumptive thumb on the scale for or against preemption. The Act expressly preempts State and local regulations concerning the energy use of many natural gas appliances, including those used in household and restaurant kitchens. Instead of directly banning those appliances in new buildings, Berkeley took a more circuitous route to the same result and enacted a building code that prohibits natural gas piping into those buildings, rendering the gas appliances useless. The panel held that, by its plain text and structure, the Act's preemption provision encompasses building codes that regulate natural gas use by covered products. By preventing such appliances from using natural gas, the Berkeley building code did exactly that. The panel reversed and remanded for further proceedings.

Concurring, Judge O'Scannlain wrote that he agreed that the Energy Policy and Conservation Act preempts the Berkeley ordinance, but he only reached that conclusion because, under Ninth Circuit precedent, he was bound to hold that the presumption against preemption does not apply to the express-preemption provision at issue. Judge O'Scannlain wrote, however, that the law regarding the presumption against preemption in express-preemption cases is troubling and confused-beset by tensions in Supreme Court precedents, disagreement among the circuits, and important practical questions still unanswered.

Concurring, Judge Baker stated that he wrote separately to express his reservations about the Association's standing and to explain his understanding of why the City of Berkeley's ordinance invades the core area preempted by the Energy Policy and Conservation Act. Judge Baker wrote that, at the pleading stage, an organization need not identify any specific injured member in order to establish associational standing, but it must do so at summary judgment or trial. As to preemption, Judge Baker wrote that the Berkeley ordinance cut to the heart of what Congress sought to prevent-state and local manipulation of building codes for new construction to regulate the natural gas consumption of covered products when gas service is otherwise available to the premises where such products are used. Judge Baker therefore joined the panel opinion in full.

BUMATAY, CIRCUIT JUDGE

By completely prohibiting the installation of natural gas piping within newly constructed buildings, the City of Berkeley has waded into a domain preempted by Congress. The Energy Policy and Conservation Act ("EPCA"), 42 U.S.C. § 6297(c), expressly preempts State and local regulations concerning the energy use of many natural gas appliances, including those used in household and restaurant kitchens. Instead of directly banning those appliances in new buildings, Berkeley took a more circuitous route to the same result. It enacted a building code that prohibits natural gas piping into those buildings, rendering the gas appliances useless.

The California Restaurant Association, whose members include restaurateurs and chefs, challenged Berkeley's regulation, raising an EPCA preemption claim. The district court dismissed the suit. In doing so, it limited the Act's preemptive scope to ordinances that facially or directly regulate covered appliances. But such limits do not appear in EPCA's text. By its plain text and structure, EPCA's preemption provision encompasses building codes that regulate natural gas use by covered products. And by preventing such appliances from using natural gas, the new Berkeley building code does exactly that.

We thus conclude that EPCA preempts Berkeley's building code's effect against covered products and reverse.

I.

In July 2019, the Council of the City of Berkeley, California, adopted Ordinance No. 7,672-N.S.- "Prohibition of Natural Gas Infrastructure in New Buildings" ("Ordinance"). As its name implies, the Ordinance prohibits, with some exceptions, "Natural Gas Infrastructure" in "Newly Constructed Buildings" in the City of Berkeley. Berkeley Mun. Code ("BMC") § 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 as specified in the California Mechanical Code and Plumbing Code." Id. § 12.80.030(E). And "Newly Constructed Building" refers to "a building that has never before been used or occupied for any purpose." Id. § 12.80.030(F). These building codes "apply to Use Permit or Zoning Certificate applications" submitted after the Ordinance's January 1, 2020, effective date. Id. §§ 12.80.020(A), 12.80.080.

The Ordinance seeks to "eliminate obsolete natural gas infrastructure and associated greenhouse gas emissions in new buildings where all-electric infrastructure can be most practicably integrated, thereby reducing the environmental and health hazards produced by the...