Posted on April 19, 2023 by Seth Jaffe
On Monday, the 9th Circuit Court of Appeals held that the City of Berkeley ordinance entitled “Prohibition of Natural Gas Infrastructure in New Buildings” was preempted by the Energy Policy and Conservation Act. The relevant language in the EPCA provides as follows:
no State regulation concerning the energy efficiency, energy use, or water use of such covered product shall be effective with respect to such product.
There are a number of exemptions and other details, but that’s the core.
Berkeley and a number of amici (including the United States, which supported Berkeley) argued that the preclusion of gas hookups is not the same thing as regulating the energy efficiency of the actual product itself. I’m not going to get into the merits, other than to note that, based on the following, I don’t expect any hardcore mathematicians among my readers to sympathize with the City’s arguments:
Berkeley’s main contention is that its Ordinance doesn’t regulate “energy use” because it bans natural gas rather than prescribes an affirmative “quantity of energy.” While Berkeley concedes that a prohibition on natural gas infrastructure reduces the energy consumed by natural gas appliances in new buildings to “zero,” it argues that “zero” is not a “quantity” and so the Ordinance is not an “energy use” regulation. But that defies the ordinary meaning of “quantity.”
I will note, however, that, if the 9th Circuit decision is adopted by other Circuit Courts or by the Supreme Court, it is difficult to see how other natural gas bans could survive a preemption challenge. This case is not about specific facts related to the language of the Berkeley ordinance. It is a decision on a facial challenge to the ordinance, in which the Court said that a ban on new natural gas connections is preempted by the EPCA.
Thus, if the 9th Circuit holding is the law, then other state or local bans are going to be preempted as well. FWIW, I can imagine other Circuit courts disagreeing with the 9th Circuit. In that case, I’d expect SCOTUS to take up what would be a pretty clear Circuit split. And I’ve given up predicting what SCOTUS will do. There are a number of conservative SCOTUS justices who might be generally expected to want to preserve local authority, so I am not certain that SCOTUS would find the bans to be preempted. For those who just can’t get enough of preemption jurisprudence, I suggest that they read Judge O’Scannlain’s concurrence, which is pretty much a cris de coeur, begging SCOTUS to bring some clarity to the law of preemption.