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Pollution & HealthWhat’s Next within the Fight over Berkeley’s Natural Gas Ordinance

What’s Next within the Fight over Berkeley’s Natural Gas Ordinance

What’s Next within the Fight over Berkeley’s Natural Gas Ordinance

In a petition in search of review of the choice, the City of Berkeley says that the opinion from a Ninth Circuit panel takes federal preemption too far.

Image from Wikimedia (CC-BY-SA 2.5)

The City of Berkeley just filed a petition for en banc review in its long-running litigation in defense of an ordinance it passed that restricts natural-gas infrastructure in recent construction. This litigation has been watched by many within the climate-policy world due to the recognition of laws like Berkeley’s; it took on recent relevance for local-authority advocates more generally when a Ninth Circuit panel struck it down on a sweeping reading of federal preemption. (UCLA’s Environmental Law Clinic, on behalf of seven law professors, filed an amicus transient in support of Berkeley’s position when the case was before the panel; I also wrote in regards to the panel’s opinion when it got here out.)

The three-judge panel ruled in April that the federal Energy Policy and Conservation Act (EPCA), which sets energy-conservation standards for specific appliances, preempts any state or local regulations that may “prevent[ EPCA-covered] appliances from using natural gas” (emphasis removed). This is predicated on a a part of EPCA that, if an appliance might be regulated under EPCA, any state or local “regulation . . . regarding the energy efficiency, energy use, or water use” of that appliance is inoperative “with respect to such product.”

The ruling implies that even laws like Berkeley’s ordinance, which do indirectly compete with EPCA’s federal appliance standards, can be “preempted”—that’s, made ineffective. Or, as Berkeley puts it, the opinion transformed EPCA from an appliance-efficiency statute right into a “preemptive juggernaut.”

Berkeley is now asking the Ninth Circuit to review the choice of the three-judge panel “en banc,” meaning that a bunch of 11 judges would have a look at the case and issue a recent opinion, replacing the panel’s ruling.

Berkeley’s petition raises several problems with the panel opinion. Without attempting to be comprehensive, I’ll summarize them here as three primary contentions: that it doesn’t make sense for EPCA to preempt a bigger group of regulations than it gives the federal government authority to create; that the text of EPCA’s preemption provision doesn’t must be read so expansively; and that this interpretation of EPCA can have a big and negative impact on the federal, state, and native levels.

The mismatch between the scope of preemption and the scope of federal authority

Berkeley points out that EPCA only allows the federal government to create standards for the energy efficiency of specific appliances—A/Cs, fridges, space heaters, etc. (Berkeley also notes that, despite the incontrovertible fact that it’s a restaurant industry group that challenged its law, this group of appliances does not include industrial cooking appliances.) The panel’s opinion would preempt a much larger group of regulations, namely, regulations which have the effect of stopping specific appliances or specific sorts of fuel from getting used.

Berkeley argues that interpreting the law to create this mismatch between the scope of preemption and the scope federal authority doesn’t make sense, for various reasons. One is that the system for federal standard-setting and preemption of state and native regulations are explicitly linked within the statute and were created by Congress at the identical time, implying that they were meant to deal with the identical material. On the same note, Berkeley points out that EPCA allows the federal government to exempt some state and native regulations from EPCA preemption, but the factors for that exemption center on the quantity of energy (or water) savings those regulations achieve; if regulations geared toward something aside from conservation might be preempted by EPCA—like health and safety regulations—there’s no basis within the statute for evaluating those other advantages.

Berkeley also notes that interpreting EPCA to preempt state standards in areas where the federal government lacks authority to manage leaves a “regulatory void,” where no government—federal, state, or local—can regulate. This is especially worrying in light of the broad impact that Berkeley argues the panel opinion could have, summarized below.

The meaning of “concerning” and the number zero

Berkeley also dives into the text of EPCA’s preemption provision on various points. As a general point, Berkeley argues that courts are, and must be, reluctant to assume that Congress would change the connection between states and the federal government in areas that the states have traditionally regulated.

Berkeley also addresses the core query here, namely how far the word “concerning” stretches in EPCA’s preemption provision (preempting regulations “concerning . . . energy use”). The panel reads the usage of “concerning”, as an alternative of something simpler like “of,” as a sign that EPCA preempts regulations beyond appliance standards. Berkeley argues as an alternative that “concerning” simply applies to regulations which have effectively the identical impact as appliance conservation standards, akin to a regulation that required appliances to fulfill a certain level of efficiency before they could possibly be connected to a gas line.

One other point of contention has been whether EPCA preempts regulations that completely eliminate a certain kind of fuel use, quite than require energy use to more efficient. The panel decided that a regulation that stops an appliance from using natural gas effectively requires that the appliance reduce “energy use” to zero. Berkeley’s response is that that is like saying that zoning land for open space is definitely a height restriction, since it reduces the peak of buildings there to zero. The broader point here is that a ban will not be an efficiency standard—EPCA will not be frightened about which sorts of fuel might be used, nearly energy conservation and uniformity in appliance efficiency standards.

The broad impact of the panel’s ruling

Finally, Berkeley notes the impact that the panel opinion would have if allowed to face which, in response to the town, could possibly be sweeping: Many basic health and safety regulations prevent certain appliances from being installed in certain places—for instance, you can’t sell someone an unvented gas heater for his or her apartment—and Berkeley argues that the panel opinion could make these unenforceable.

The sheer number of recent regulations that could possibly be affected by the brand new reading of EPCA may lead to more requests for special exceptions than the federal government has capability to handle. This can be a priority that the federal government itself raised in earlier briefing.

And, Berkeley says, the choice can be a blow to our federalist system. It’s because it might greatly expand federal preemption, removing from state and native control a big area of core health and safety regulation, normally under their purview.

What comes next

After the CRA gets a probability to reply to Berkeley’s petition, whether en banc review is granted will depend on the Ninth Circuit judges as a bunch. Any certainly one of them can call for a vote on whether to review the case en banc, and through the strategy of reviewing the petition and voting, there are procedures for the circuit judges, including the panel, to share their views internally. If a majority of lively Ninth Circuit judges (that usually are not recused) vote to review the case, it’ll be taken up en banc.

At that time, a recent panel of 11 judges, including the Chief Judge, will likely be formed to review the case. That recent panel could ask to listen to more from the parties, either in written briefs or in oral argument. They are going to then issue a recent opinion, and the panel decision will grow to be uncitable except to the extent that it’s reincorporated into the en banc opinion.

If there’s no majority in favor of taking the case en banc, or if no judge calls for a vote in the primary place, the panel’s ruling stays in effect. The one other option for Berkeley to get further review of the panel decision at that time can be a petition to the Supreme Court.


Berkeley, local government, natural gas


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