Last week, the 9^th Circuit voted against rehearing en banc its decision from last April finding the City of Berkeley’s ban on natural gas connections in new construction to be preempted by the Energy Policy and Conservation Act.  Judge Friedland, joined by seven other judges (and three senior judges!) dissented from the denial, writing a lengthy opinion fairly explicitly directed at judges from other Courts of Appeal that might hear cases addressing similar bans. 

Here’s the crux of the disagreement.  Judge Bumatay, writing for the majority, stated that:

States and localities can’t skirt the text of broad preemption provisions by doing indirectly what Congress says they can’t do directly. EPCA would no doubt preempt an ordinance that directly prohibits the use of covered natural gas appliances in new buildings. So Berkeley can’t evade preemption by merely moving up one step in the energy chain and banning natural gas piping within those buildings. Otherwise, the ability to use covered products is “meaningless” if consumers can’t access the natural gas available at the meter on the premises.

Judge Friedland disagreed:

EPCA would not preempt a direct prohibition on natural gas appliances enacted for the reasons Berkeley had here. Even such a direct prohibition would not affect the “energy use” of any appliance.

The basis for Judge Friedland’s decision is difficult to summarize in a short blog post, but at its heart is the proposition that “energy use” is a technical term that fundamentally measures the theoretical efficiency of an appliance, without regard to how much energy the appliance in fact consumes.  Thus, Judge Friedland concludes that EPCA does not preempt Berkeley’s ban, because the ban does not regulate the “energy use” of appliances.

Now that is throwing down the gauntlet.  However, putting my personal views aside and focusing purely on whether most appellate judges, and particularly most Supreme Court judges, would agree, consider me skeptical.  Is prohibiting consumers from using gas appliances really not regulating the energy use of those appliances?