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

89 F.4th 1094

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

Argued and Submitted May 12, 2022 San Francisco, California

Filed April 17, 2023

Amended January 2, 2024

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

Brian C. Baran (argued), Reichman Jorgensen Lehman & Feldberg LLP, Washington, D.C.; Courtland L. Reichman, Laura Carwile, Ariel C. Green Anaba, and Sarah Jorgensen, Reichman Jorgensen Lehman & Feldberg LLP, Redwood Shores, California; Kylie C. Kim, Massey & Gail LLP, 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; Sean H. Donahue, Donahue Goldberg & Weaver LLP, Washington, D.C.; Brendan Darrow, Rent Stabilization Board, Berkeley, California; Farima F. Brown, City Attorney, Berkeley Office of the City Attorney, Berkeley, California; for Defendant-Appellee.

Angelo I. Amador, Restaurant Law Center, Washington, D.C., for Amicus Curiae Restaurant Law Center. Thomas G. Pulham (argued), Deputy Attorney General; Michael S. Raab, H. Thomas Byron, III, and Joseph F. Busa, Appellate Staff Attorneys, Civil Division; Stephanie Hinds, Acting United States Attorney; Ismail J. Ramsey, Unites States Attorney; Brian M. Boynton, Principal Deputy Assistant Attorney General; United States Department of Justice, Washington, D.C.; Emily Hammond, Deputy General Counsel for Litigation, Regulation, and Enforcement; Alexandra

Klass, Deputy General Counsel for Energy Efficiency and Clean Energy Demonstrations; Brent Allen, Deputy General Counsel for Environment and Litigation; United States Department of Energy, Washington, D.C.; Samuel T. Walsh, General Counsel; for Amicus Curiae USA.

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

Megan Berge, Baker Botts LLP, San Francisco, California; JoAnna Adkisson, Baker Botts LLP, Washington, D.C.; Francesca Eick, Baker Botts LLP, Austin, Texas; 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.

Theodore A.B. McCombs, Jonathan A. Wiener, M. Elaine Meckenstock, and Somerset Perry, Deputy Attorneys General; David A. Zonana and Myung J. Park, Supervising Deputy Attorneys General; Edward H. Ochoa and Robert W. Byrne, Senior Assistant Attorneys General; Rob Bonta, California Attorney General; California Attorney General's Office, San Diego, California; Brian E. Frosh, Maryland Attorney General, Maryland Attorney General's Office, Baltimore, Maryland; Andrew J. Bruck, Acting New Jersey Attorney General, New Jersey Attorney General's Office, Trenton, New Jersey; Letitia James, New York Attorney General, New York Attorney General's Office, New York, New York; Robert W. Ferguson, Washington Attorney General, Washington Attorney General's Office, Seattle, Washington; Georgia Pestana, Corporation Counsel, City of New York, New York, New York; Maura Healey, Commonwealth of Massachusetts Attorney General, Commonwealth of Massachusetts Attorney General's Office, Boston, Massachusetts; Hector Balderas, New Mexico Attorney General, New Mexico Attorney General's Office, Santa Fe, New Mexico; for Amici Curiae the states of California, Maryland, New York, 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, San Francisco Bay Physicians for Social Responsibility, Physicians for Social Responsibility & American Thoracic Society.

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

Kimberley 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 Chef Gerard Kenny II.

Gloria D. Smith, Sierra Club, Oakland California, for Amicus Curiae Sierra Club.

Daniel J. Becker, Assistant Counsel; John J. Sipos, Deputy General Counsel & Solicitor; New York Public Service Commission, Office of General Counsel, Albany, New York; for Amicus Curiae New York State Public Service Commission.

Nathaniel R. Mattison, Guarini Center on Environmental, Energy and Land Use Law, New York, New York, for Amicus Curiae Guarini Center on Environmental, Energy and Land Use Law at New York University School of Law.

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

Order;

Opinion by Judge Bumatay;

Concurrence by Judge O'Scannlain;

Concurrence by Judge Baker;

Dissent from Denial of Rehearing En Banc by Judge Friedland;

Statement Respecting Denial of Rehearing En Banc by Judge Berzon.

ORDER

The opinion, Judge O'Scannlain's concurrence, and Judge Baker's concurrence filed on April 17, 2023, and published at 65 F.4th 1045 (9th Cir. 2023), are amended by the opinion and respective concurrences filed concurrently with this order.

Appellants filed a petition for rehearing en banc, Docket No. 92. Judge Bumatay voted to deny the petition for rehearing en banc and Judge O'Scannlain and Judge Baker so recommended.

The full court was advised of the petition for rehearing en banc. A judge of the court requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. Fed. R. App. P. 35. The petition for rehearing en banc is DENIED. No further petitions for rehearing en banc will be considered. Judge H.A. Thomas did not participate in the deliberations or vote in this case.

AMENDED OPINION

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 in those buildings from the point of delivery at a gas meter, 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 also encompasses building codes concerning the energy use of covered products. And thus EPCA preempts Berkeley's building code because it prohibits natural gas piping in new construction buildings from the point of delivery at the gas meter.

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 consumption and transportation of natural gas." Id. § 12.80.010(H). By its own terms, the Ordinance "shall in no way be construed ... as requiring the use or installation of any specific appliance or system as a condition of approval." Id. § 12.80.020(C). The Ordinance also exempts a new construction from its prohibition if it is in the "public interest" or if it is "not physically feasible." Id. §§ 12.80.040(A), 12.80.050.

In November 2019, the Association sued the City of Berkeley, claiming that EPCA and state law preempted the Ordinance. After the City moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), the district court dismissed the EPCA claim. It...