Government Regulation -- 2023



Cal. Restaurant Ass'n v. City of Berkeley   (9th Circuit)

Challenging Berkeley's ban on natural gas

The NAM filed an amicus brief asking the Ninth Circuit to revive a challenge to a Berkeley, California ordinance which bans the installation of natural gas lines in new construction. The California Restaurant Association (CRA) filed this lawsuit in the Northern District of California challenging the Ordinance as invalid and unenforceable under the federal Energy and Policy and Conservation Act (the Act) and state law, arguing against its “uniquely negative impacts” on the restaurant community which relies heavily on gas appliances. The district court dismissed the case, holding that because the ordinance does not “directly regulate either energy use or energy efficiency of covered appliances,” it is not preempted under the Act.

The current appeal to the Ninth Circuit followed. The NAM filed an amicus brief arguing that the district court’s conclusion is not supported by the text of the Act, which broadly preempts any ordinance “concerning” the energy use of certain covered products, including gas appliances. Further, allowing the Ordinance to survive preemption would create exactly the type of regulatory patchwork Congress intended to avoid, especially given that many cities and municipalities have since followed in Berkeley’s footsteps by adopting similar ordinances of their own. These ordinances have the potential to negatively impact any manufacturer that sells, installs, or uses a gas appliance.

Happily, on April 17, 2023, the Ninth Circuit held that the Ordinance is preempted by the Act.


Related Documents:
Decision  (April 17, 2023)
NAM brief  (November 10, 2021)