Ninth Circuit Overturns Berkeley's Natural Gas Ban

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Reichman Jorgensen Lehman & Feldberg LLP

Apr 17, 2023, 16:52 ET

Reichman Jorgensen Lehman & Feldberg Secures Landmark Ninth Circuit Victory for California Restaurant Association in Battle Over Berkeley's Gas Ban

REDWOOD SHORES, Calif., April 17, 2023 /PRNewswire/ -- Reichman Jorgensen Lehman & Feldberg LLP (RJLF) secured a precedent-setting victory on behalf of the California Restaurant Association (CRA) against the City of Berkeley, overturning Berkeley's ban on natural gas hookups. The Ninth Circuit reversed the District Court's ruling that the City's natural gas ban was consistent with federal law. The panel unanimously held that federal energy law preempts Berkeley's ban on natural gas piping within buildings, and that Berkeley cannot bypass federal preemption by banning the pipes instead of natural gas products themselves.

"We are extremely pleased the Ninth Circuit enforced the plain mandate of federal law on the critical issue of national energy policy," Courtland L. Reichman, RJLF's Managing Partner, said. "At stake was the CRA members' ability to conduct business in the state of California, which puts not only the future of restaurants at risk, but also the vibrant culture and the jobs that those restaurants bring to the area."

Berkeley Ordinance No. 7,672-N.S. banned natural gas infrastructure and the use of natural gas in newly constructed buildings beginning January 1, 2020, making Berkeley the first city in California to take such action. The case challenged the practice of cities across California of usurping state and federal regulations governing the use of energy in buildings.

"Congress intended to set a national energy policy, and cities and states cannot bypass federal preemption by regulating piping instead of natural gas products," RJLF partner Sarah O. Jorgensen shared. "The panel's unanimous decision that Berkeley's ban on natural gas piping is preempted by EPCA sets an important precedent for future cases, especially with other cities and states considering restrictions on natural gas, and it prevents a patchwork of disparate regulations and protects consumer choice."

In the original complaint filed November 21, 2019, the CRA highlighted that its members include restaurants that "rely on gas for cooking particular types of food," as well as for heating space and water, for backup power, and for affordable power, and that they would "be unable to prepare many of their specialties without natural gas." Berkeley's Ordinance harms the CRA's members, who would not be able to move into or build new buildings while also preparing food in the manner and with the speed necessary and using a reliable and affordable energy source. The drastic step of requiring "all-electric" new buildings stands at odds with the need for a reliable, resilient, and affordable energy supply. The Berkeley Ordinance conflicts with both federal and state law, is contrary to the public interest, and harms CRA and its members, the CRA argued.

The District Court dismissed the complaint in July 2021, finding that the CRA had standing and the dispute was ripe, but disagreeing on the statutory interpretation of federal energy law. The CRA appealed that statutory interpretation to the Ninth Circuit. The significance of this first-in-the-nation attempt to ban natural gas at a local level prompted amici briefs from states, industry associations, and the Department of Justice. Brian C. Baran of RJLF argued the case for the CRA before a three-judge panel in May 2022.

Along with partners Courtland L. Reichman and Sarah O. Jorgensen, the CRA is represented by associates Brian C. Baran, Laura Carwile, and David King, as well as co-counsel Gary J. Toman from Weinberg, Wheeler, Hudgins, Gunn & Dial LLC and Kylie Chiseul Kim from Kellogg, Hansen, Todd, Evans, Figel & Frederick LLP.

The case is California Restaurant Association v. City of Berkeley, Case No. 21-16278 (9th Cir.).

About The California Restaurant Association

The California Restaurant Association (CRA) is the largest nonprofit statewide restaurant trade association in the nation. Representing the restaurant and hospitality industries since 1906, the CRA is made up of nearly 22,000 restaurant locations in California.

About Reichman Jorgensen Lehman & Feldberg LLP

Reichman Jorgensen Lehman & Feldberg LLP (RJLF) is an elite national trial firm that handles high-stakes commercial litigation, intellectual property, and white collar disputes. The firm is majority women-owned and rejects the billable hour in favor of fee arrangements that align client interests. RJLF's attorneys are diverse, exceptionally credentialed, and passionate about trial advocacy. From offices in Silicon Valley, New York, Washington, D.C., and Atlanta, the firm tries cases and argues appeals throughout the country. For more information, visit www.reichmanjorgensen.com.

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SOURCE Reichman Jorgensen Lehman & Feldberg LLP