California Restaurant Association v. City of Berkeley

Issue

A panel of the Ninth Circuit held that the preemption provisions of the Energy Policy and Conservation Act (EPCA) did not allow the City of Berkeley to ban natural gas piping in new construction.

August 21, 2023

The Restaurant Law Center filed an amicus brief arguing that the Ninth Circuit should deny the City’s petition for en banc review. Specifically, the Law Center argued that the panel correctly interpreted EPCA’s express preemption provision and also correctly held that states and localities can’t skirt the text of broad preemption provisions by doing indirectly what Congress says they can’t do directly. Furthermore, we argue that this is not a case that raises an issue of “exceptional importance” that warrants en banc review, as it involves a narrow issue about the legality of a single ordinance passed by the 53rd largest city in California. Finally, vacating the decision risks real and substantial negative consequences for the restaurant industry.