Cra v. City of Berkeley, 65 F.4th 1045

Background

In July 2019 Berkeley adopted Ordinance No. 7,672-N.S., banning most natural gas infrastructure (defined as fuel gas piping downstream of the gas meter) in newly constructed buildings effective January 1, 2020.
California Restaurant Association (CRA) sued, alleging EPCA preempted the ordinance because it prevents covered gas appliances (residential/commercial kitchen equipment) from using natural gas at the point of use.
The district court dismissed the EPCA claim, holding EPCA preemption applies only to facial or direct regulation of covered products, not to building codes that indirectly affect appliance use; state-law claims were dismissed without prejudice.
The Ninth Circuit reversed: it held EPCA §6297(c) preempts state/local regulations "concerning the energy use" of covered products and that a building code banning piping that renders covered appliances unusable falls within that preemptive scope.
The panel found the CRA had associational standing at the pleading stage based on credible allegations that one or more members would open or relocate restaurants in new Berkeley buildings but for the ban; the case was remanded and state-law claims must be reinstated.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1) Associational standing	CRA alleged members would open/relocate restaurants in new Berkeley buildings but for the gas ban, showing imminent, traceable injury	Berkeley argued CRA failed to identify particular injured members or timing of harm	CRA has Article III associational standing at the pleading stage; general factual allegations suffice to show a credible, imminent threat of harm
2) Scope of EPCA preemption (§6297(c))	EPCA preempts state/local regulations "concerning the energy use" of covered products, including building codes that prevent covered appliances from using gas	Berkeley: EPCA preempts only direct/facial appliance standards or federal "energy conservation standards" acting on the products themselves; regulation of piping/distribution is outside EPCA	EPCA preempts the ordinance’s effect on covered products; building codes that ban on-site gas piping "concern" energy use at point of use and are preempted as to covered products
3) Does a total ban (zero use) fall within "energy use"?	A prohibition that reduces energy consumption to zero still regulates the "quantity of energy directly consumed at point of use"	Berkeley argued "zero" is not a permissible "quantity," so a total ban is not an "energy use" regulation	Court: "zero" is a quantity; a regulation that eliminates use still concerns energy use and falls within EPCA’s preemptive text
4) Presumption against preemption	(CRA: statutory text is controlling)	Berkeley urged application of the presumption against preemption to narrow EPCA's reach	Panel applied the statute’s plain meaning without invoking the presumption; Judge O’Scannlain concurred but explained the panel follows Ninth Circuit post-Franklin precedent declining to apply the presumption and noted the law is unsettled

Key Cases Cited

Air Conditioning & Refrigeration Inst. v. Energy Res. Conservation & Dev. Comm’n, 410 F.3d 492 (9th Cir. 2005) (interpreting EPCA preemption and applying presumption against preemption pre-Franklin)
Puerto Rico v. Franklin Cal. Tax-Free Tr., 579 U.S. 115 (2016) (declined to invoke presumption against preemption; focus on plain text)
Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246 (2004) (States cannot evade preemption by using indirect means to achieve a preempted goal)
Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) (describing the presumption against preemption and its application to express-preemption provisions)
Nat’l Meat Ass’n v. Harris, 565 U.S. 452 (2012) (express preemption can reach state measures affecting sale/distribution when they produce the forbidden effect)
Am. Trucking Ass’ns v. City of Los Angeles, 569 U.S. 641 (2013) (criticized attempts to avoid preemption by regulating different actors in the supply chain)
Rowe v. New Hampshire Motor Transp. Ass’n, 552 U.S. 364 (2008) (indirect state regulation producing an effect preempted by federal law is still preempted)