Attorneys for the city of Berkeley, Calif., have asked the 9th Circuit Court of Appeals to rehear a case overturning the city’s effective ban on natural gas appliances in new buildings, a first-of-its-kind rule that led to two dozen other local governments adopting similar restrictions.

On April 17, a three-judge panel reversed a district court’s ruling and agreed with the California Restaurant Association that the city’s gas ban is preempted by the federal Energy Policy and Conservation Act (EPCA), which gives the U.S. Department of Energy authority to set energy conservation standards for appliances such as furnaces and water heaters.

The ruling called into question building decarbonization efforts in the 9th Circuit’s nine Western states and raised the possibility of the ruling having a national effect. (See Impact of Berkeley Gas Ruling Debated.)

On May 31, Berkeley’s city attorney and outside law firms asked the 9th Circuit to rehear the case before an 11-judge en banc panel.

“The panel’s invalidation of the City of Berkeley’s prohibition on natural gas infrastructure in newly constructed buildings is based upon fundamental legal errors that threaten vital health, safety, and environmental regulations throughout the Circuit,” the lawyers wrote in their rehearing petition.

The decision could “disable state or local regulations” that limit the use of gas appliances, they said.

“That ruling is seriously wrong and highly consequential,” the petition says. “Indeed, the [legal] regime the panel discerned in this unheralded 35-year-old provision [of the EPCA] is in every way extraordinary. It makes the federal government’s establishment of an efficiency standard for an energy-consuming product the trigger for automatic displacement — but not replacement — of vast swaths of health and safety protections that serve purposes wholly unrelated to conserving energy.”

Berkeley adopted its ordinance prohibiting the installation of natural gas piping in new buildings in 2019, making it the first U.S. jurisdiction to effectively ban new natural gas use. Since then, more than 70 jurisdictions have required or incentivized all-electric new buildings, according to the Building Decarbonization Coalition, with about 25 following Berkeley’s approach. Most are in California.

The city said its ordinance was meant to reduce the environmental and health hazards of using natural gas for cooking and heating.

The California Restaurant Association sued, saying the EPCA preempted the ordinance.

A federal judge dismissed the case, saying the federal law preempted only ordinances that facially or directly regulate covered appliances.

A three-judge panel of the 9th Circuit disagreed, saying “such limits do not appear in EPCA’s text.”

“By its plain text and structure, EPCA’s pre-emption provision encompasses building codes that regulate natural gas use by covered products,” the panel said. “And by preventing such appliances from using natural gas, the new Berkeley building code does exactly that.”

In their rehearing petition, Berkeley’s lawyers argued the three-judge panel had wrongly interpreted the law and 9th Circuit precedent, arriving at a conclusion that undermined cities’ ability to enact health-and-safety ordinances.

“The en banc court should disavow this vast and unauthorized preemption regime and the decision’s federalism-denying interpretive approach,” they wrote. “The decision disrupts the coherent and effective administration of an important federal statute, overrides many existing measures similar to Berkeley’s, and improperly denies States and municipalities authority to address matters at the core of traditional state authority.”

The restaurant association and other interested parties next have an opportunity to respond.

States and cities that filed amicus briefs supporting Berkeley previously included California, Maryland, New Jersey, New Mexico, New York, Oregon, Washington, Massachusetts, Washington, D.C. and New York City. They, too, can weigh in on the rehearing request.

The rehearing petition and responses will be sent to all of the 9th Circuit’s 28 active judges, who will vote on whether to grant the request.