Divided Ninth Circuit Reaffirms Decision That Berkeley’s Ban on Natural Gas Piping Installations in New Construction is Federally Preempted

February 2024

Environmental, Energy, & Climate Change Law and Regulation Reporter, Volume 4, Number 5

On January 2, 2024, the Ninth Circuit Court of Appeals published an amended opinion in California Restaurant Ass’n v. City of Berkeley, confirming its denial of a petition for rehearing en banc. The divided court reversed and remanded to the trial court, holding that the City of Berkeley, California’s (Berkeley) prohibition of natural gas piping within newly constructed buildings was federally preempted by the Energy Policy and Conservation Act (EPCA), 42 U.S.C. § 6297(c). Under the majority’s opinion, by completely prohibiting the installation of natural gas piping within newly constructed buildings, Berkeley has waded into a domain preempted by Congress, as the state and local laws governing energy usage of natural gas appliances are expressly preempted by EPCA.

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