Ninth Circuit Overturns Berkeley’s Natural Gas Ban

April 2023

Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC congratulates Atlanta-based partner Gary J. Toman for his great work on the legal team that secured the precedent-setting victory in the Ninth Circuit Court of Appeals in the case of California Restaurant Association v. City of Berkeley. The Court ruled unanimously that Berkeley's ban on natural gas infrastructure in new buildings violates federal law.

The case was brought by the California Restaurant Association, which argued that Berkeley's ban was preempted by the Energy Policy and Conservation Act (EPCA). EPCA gives the federal government authority to regulate the energy use and energy efficiency of appliances and only allows state and local governments to regulate if they meet certain criteria.

The Ninth Circuit agreed with the Association, finding that Berkeley's ban was preempted by the plain language of EPCA’s preemption provision.  The court rejected the argument that the ban was not preempted because it does not directly regulate appliances themselves, and instead regulates gas piping, concluding that the government could not do indirectly what it was prohibited from doing directly.

“The Ninth Circuit's decision is a victory for consumers and businesses as it affirms that local governments cannot do an end run around federal regulations,” said Toman. “This is important because it ensures that consumers will have access to affordable and efficient appliances.” Mr. Toman, along with co-counsel, was recognized as national Runner-Up Litigator of the Week by for the victory.

Weinberg Wheeler is proud to have played a role in this victory. We believe that the Ninth Circuit's decision is a sound one, and we are confident that it will have a positive impact on consumers and businesses across the country.



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