Following up on our April 21 post, the UCLA Environmental Law Clinic recently filed an amicus brief in the California Restaurant Association v. Berkeley litigation, joining multiple other governmental and non-governmental organizations asking the Ninth Circuit to take another look at its April 17 decision. The Ninth Circuit’s decision effectively overturned a lower federal district court’s ruling that revoked the City of Berkeley’s 2019 ban of natural gas infrastructure in newly constructed buildings.
Authoring the brief were seven law professors from across the country including Penn State’s Hannah Wiseman, UPenn’s Shelley Welton, Vanderbilt’s Jim Rossi, UT Austin’s David Spence, and three from UC Berkeley including Dan Farber, Sharon Jacobs, and William Boyd. Incidentally, these seven legal scholars are no strangers to this case; they filed a previous brief last year when the matter first reached the Ninth Circuit.
As the professors are not directly involved in the litigation, they submitted their brief as amici curiae in an effort to use their extensive expertise in environmental law to help the Ninth Circuit decide this issue. With this week’s brief, these professors ask the Ninth Circuit to accept the City of Berkeley’s petition to rehear the case “en banc,” which simply asks that a group of eleven judges convene and review the April 17 decision issued by judges Diarmuid F. O’Scannlain, Patrick J. Bumatay, and M. Miller Baker.
As we described in our April 21 post, these three judges issued an opinion to strike down Berkeley’s gas line limiting ordinance. Their opinion was partially based on the federal Energy Policy and Conservation Act (EPCA) which preempts non-federal government regulations concerning the energy use of appliances regulated under the EPCA. The three judges reasoned in their opinion that by outlawing buildings being built with gas infrastructure, Berkeley’s ordinance could prevent some EPCA-regulated gas appliances from operating in those buildings, which would prevent one form of those appliance’s energy use.
It is this perceived expansive interpretation of the EPCA on which this new amicus brief focuses its arguments. The brief highlights that such an interpretation puts local governments’ ability to regulate utility “distribution” at risk. Traditionally, state and local governments have been in charge of regulating the so-called “last mile” transportation of gas and electricity to its end uses. With the aim of protecting these regulatory powers of non-federal governments, Congress specifically worded passage of multiple federal energy laws, including the Federal Power Act and the Natural Gas Act, to do just that. Federal courts have usually recognized this local regulatory power in past decisions. As the professors in this brief point out, however, the Ninth Circuit’s April decision essentially overturns this traditional, federalist approach to energy regulation by ruling that non-federal governments cannot decide when new gas infrastructure gets installed at the last mile level.
Another argument raised in this brief is that the Ninth Circuit’s opinion could have farther-reaching effects than just local governments’ utility-distribution powers. The brief notes that there are many more things that non-federal governments have power over that could now be viewed as preventing EPCA-regulated appliances from running. Examples highlighted in the brief include preventing heaters from being installed in areas that cause safety hazards or prohibiting the hookup to gas appliances that could damage the distribution system. The amount of leverage future litigants could use with the Ninth Circuit’s opinion to strike down other local regulations is potentially vast. If nothing else, the Ninth Circuit’s opinion, according to this brief, leads to more questions than answers when it comes to figuring out where the federal government’s authority ends and local government authority begins.
As mentioned above, it is not just these seven law professors via their amicus briefing joining in the City of Berkeley’s request to have the case be re-heard en banc. There are multiple other governmental and non-governmental groups that have submitted similar briefs, including the following:
- In a brief submitted by, among others, a coalition of 10 states, they highlighted the potential impact of the opinion on a number of state and local regulations;
- The U.S. government’s brief points out how the Ninth Circuit’s opinion will confuse the Department of Energy’s operations;
These are just some of the amicus briefs submitted on the issue, but all argue that this case should get a re-hearing en banc. According to Circuit Rule 35-2, the next step will be for the Ninth Circuit to establish a timeline for those opposing Berkeley’s ordinance, i.e. the restaurant industry group that filed the lawsuit that got this all started, to respond with arguments against a re-hearing. The three-member panel will likely also get an opportunity to weigh in and explain the reasoning behind their opinion, though don’t expect to see much coverage of that, as those discussions will likely not be made public.
All it takes is for one circuit judge to think a re-hearing is appropriate, and then all of the active judges (apart from those who get recused) will vote on whether to go forward with the re-hearing. If a majority decides that a rehearing is appropriate, then the Ninth Circuit’s April decision becomes uncitable, while the 11 circuit judges form an “en banc court” and (if requested) entertain further briefing and argument before issuing a new opinion.
We will continue to monitor this issue, so check back here for further updates on this case.