Yesterday a unanimous panel of the U.S. Court of Appeals for the Ninth Circuit concluded that a Berkeley, California ordinance prohibiting the installation of natural gas piping in newly constructed buildings is preempted by the federal Energy Policy and Conservation Act (EPCA). The opinion by Judge Bumatay in California Restaurant Association v. City of Berkeley was joined by Judges O'Scannlain and Baker, each of whom also wrote a separate concurrence.
Here is how Judge Bumatay summarizes the opinion:
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.
