The Guarini Center has submitted an amicus curiae brief to the U.S. Court of Appeals for the Ninth Circuit in support of the City of Berkeley’s pending petition for rehearing en banc in California Restaurant Association v. City of Berkeley.
CRA v. Berkeley concerns a restaurant trade group’s challenge to Berkeley’s 2019 ordinance restricting the installation of natural gas piping in newly constructed buildings. In its complaint, CRA argued (among other claims) that Berkeley’s ordinance was expressly preempted by the Energy Policy and Conservation Act of 1975 (“EPCA”), a law regulating the energy efficiency of many common appliances. In the District Court, Berkeley prevailed in its motion to dismiss CRA’s claims, with the judge holding that EPCA does not preempt the ordinance.
In April 2023, a three-judge panel of the Ninth Circuit issued a ruling overturning the District Court’s decision. In its opinion, the panel held that EPCA preempts the ordinance because the ordinance concerns regulated appliances’ “energy use.” The breadth of the panel’s reasoning in reaching this conclusion calls into question many state and local regulations pertaining to public health, climate, and utilities, and stands to complicate nationwide efforts to decarbonize buildings.
Alongside the federal government, many state and local governments, and advocacy groups, the Guarini Center has submitted a brief supporting Berkeley’s petition requesting the Ninth Circuit to rehear the case with an eleven-judge panel, a decision that would vacate the three-judge panel’s ruling. We argue that, in addition to averting the substantive harms the three-judge panel’s reasoning would do to state and local policymaking authority, the Ninth Circuit should grant rehearing to correct numerous errors made by the panel in interpreting EPCA and understanding the scope of its preemption clause.
