A Ninth Circuit court on Monday went against a Berkeley ordinance that banned natural gas piping in new buildings inside the city.

A district court had dismissed an action from the California Restaurant Association, a dismissal that is now reversed by the Ninth Circuit court, according to its published opinion on the case (pdf).

The California Restaurant Association alleged that the Energy Policy and Conservation Act preempts the city of Berkeley’s regulation, which banned natural gas piping in new buildings.

The Act expressly preempts State and local regulations on the energy use of natural gas appliances used in household and restaurant kitchens, according to the Ninth Circuit judges’ opinion on Monday.

“Instead of directly banning those appliances in new buildings, Berkeley took a more circuitous route to the same result and enacted a building code that prohibits natural gas piping into those buildings, rendering the gas appliances useless,” according to Judge Patrick Bumatay.

“States and localities can’t skirt the text of broad preemption provisions by doing indirectly what Congress says they can’t do directly. Berkeley can’t evade preemption by merely moving up one step in the energy chain and banning natural gas piping within those buildings.”

Judge Miller Baker, concurring, wrote that the Berkeley ordinance “cut to the heart of what Congress sought to prevent,” which is state and local manipulation of building codes for the purpose of regulating natural gas consumption.

The third concurring opinion was by Judge Diarmuid O’Scannlain.

According to the three judges, the California Restaurants Association demonstrated that some of its members, which include restaurateurs and chefs, would open or relocate a restaurant in Berkeley if the city’s ban on natural gas piping was not in place. Therefore the Berkeley ordinance harmed at least one of the association’s members.

The restaurant association’s president and CEO Jot Condie applauded the reversal, the Courthouse News Service reported.

“The Ninth Circuit has unanimously affirmed the central issue in this case: local ordinances cannot override federal law,” Condie said.

“Cities and states are not equipped to regulate the energy use or energy efficiency of appliances that businesses and homeowners have chosen; energy policy and conservation is an issue with national scope and national security implications. Natural gas appliances are crucial for restaurants to operate effectively and efficiently, as they allow for a wide variety of cuisines and innovations in the restaurant industry.”

The association’s attorney, Reichman Jorgensen Lehman & Feldberg partner Sarah O. Jorgensen, said Berkeley “should not be permitted to overrule energy decisions that affect the country as a whole.”

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