Some background. Many regulators and interest groups focus on addressing climate concerns. Localities including Washington, DC, and Berkeley, Calif., have banned new natural gas hookups as part of their building codes. States – most notably New York – are considering similar laws. These bans generally prohibit the installation of natural gas infrastructure in new buildings, including the installation of fuel gas pipes and connecting to gas meters. The Ninth Circuit’s recent decision in California Restaurant Association v. City of Berkeley, available here, strikes down Berkeley’s local ban on the grounds that it was preempted by EPCA. The Ninth Circuit held that EPCA preempts any regulations that relate to “the quantity of [natural gas] directly consumed by” certain consumer appliances at the place where those products are used.

Even though the ordinance resulted in zero future use of natural gas, Berkeley justified it on the grounds that it acted outside of the appliance itself by precluding natural gas from entering the location where an appliance was used. The court rejected this argument and found that ECPA preemption “extends to regulations that address the products themselves and the on-site infrastructure for their use of natural gas.” “States and localities can’t skirt the text of broad preemption provisions by doing indirectly what Congress says they can’t do directly.” (Emphases in original.)

A concurrence to the Ninth Circuit’s decision requests further guidance from the Court regarding the extent of federal preemption in areas of traditional state responsibility. The concurrence notes that precedent in this area is “not always clear, consistent, or coherent” and that further guidance from the US Supreme Court on how preemption issues should be analyzed “would be most welcome.”

We will keep an eye out for further decisions in this area, most notably on whether any other circuits follow the Ninth Circuit’s lead on this important issue.

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