Ninth Circuit Upholds RJLF’s Victory: Denies Rehearing Petition in CRA Suit Against Berkeley Gas Ban

The U.S. Court of Appeals for the Ninth Circuit today denied a petition for rehearing filed by the City of Berkeley in the landmark decision California Restaurant Association v. City of Berkeley, marking a significant victory for the California Restaurant Association. The denial signifies that the panel’s ruling, which found Berkeley’s gas ban to be in violation of federal law, will remain binding for Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. This is a critical decision for the chefs and restaurant owners of the Association, who will now be able to use a preferred energy source for their unique cuisines. 

Reichman Jorgensen Lehman & Feldberg LLP (RJLF) filed suit on behalf of the Association in 2019, challenging Berkeley’s ban on gas piping in new buildings. The suit sought to invalidate Berkeley’s gas ban and block its enforcement, arguing that the federal Energy Policy & Conservation Act (EPCA) preempted the local ban. In a precedent-setting decision in April 2023, the Ninth Circuit ruled in favor of the Association, concluding that Berkeley’s ban on gas piping concerned the energy use of appliances covered by the EPCA, thus rendering the ban preempted and unenforceable.  

Berkeley petitioned for rehearing in response to this ruling. The Ninth Circuit denied the rehearing petition. The panel issued a modified opinion that retains the reasoning and the result, namely that Berkeley’s ban is preempted by EPCA and therefore invalid and unenforceable. The amended opinion notes that its holding is focused on Berkeley’s ban and the application of EPCA to building codes, and says nothing about regulation of a utility’s gas distribution. Eight active judges dissented from the denial of the petition for rehearing, reading the statute’s terms and scope differently, far short of the 15 votes needed to rehear the case.

“With this decision, the Ninth Circuit has affirmed its straightforward reading of the statutory text and structure,” said RJLF partner Sarah Jorgensen. “It reinforces that under EPCA, energy policy is a national imperative, demanding unified regulation across the country. State and local governments have regulatory power, but they must comply with federal law.” 

This landmark ruling underscores the preeminence of federal law in energy policy matters, setting a powerful precedent for future cases. The case is California Restaurant Association v. City of Berkeley, Case No. 21-16278 (9th Cir.).

About Reichman Jorgensen Lehman & Feldberg LLP

Reichman Jorgensen Lehman & Feldberg LLP (RJLF) is an elite national trial firm that handles high-stakes commercial, intellectual property, energy, and white collar disputes. The firm is majority women-owned, reinventing the practice of law without 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., Austin, and Atlanta, the firm tries cases and argues appeals throughout the country. 

Contact

Sarah Jorgensen
sjorgensen@reichmanjorgensen.com
(650) 623.1403