UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CALIFORNIA RESTAURANT No. 21-16278 ASSOCIATION, a California nonprofit mutual benefit corporation, D.C. No. 4:19-cv-07668- Plaintiff-Appellant, YGR

v. ORDER AND AMENDED CITY OF BERKELEY, OPINION

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Yvonne Gonzalez Rogers, District Judge, Presiding

Argued and Submitted May 12, 2022 San Francisco, California

Filed April 17, 2023 Amended January 2, 2024

Before: Diarmuid F. O’Scannlain and Patrick J. Bumatay, Circuit Judges, and M. Miller Baker,* Judge. * The Honorable M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation. 2 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY

Order; Opinion by Judge Bumatay; Concurrence by Judge O’Scannlain; Concurrence by Judge Baker; Dissent from Denial of Rehearing En Banc by Judge Friedland; Statement Respecting Denial of Rehearing En Banc by Judge Berzon

SUMMARY**

Energy Law / Preemption

The panel issued (1) an order amending its opinion, Judge O’Scannlain’s concurrence, and Judge Baker’s concurrence filed on April 17, 2023; denying a petition for rehearing en banc; and ordering that no future petitions will be entertained; and (2) an amended opinion reversing the district court’s dismissal of the California Restaurant Association’s action alleging that the federal Energy Policy and Conservation Act (EPCA) preempts a City of Berkeley regulation that prohibits the installation of natural gas piping within newly constructed buildings. The panel held that the Association, whose members include restaurateurs and chefs, had Article III associational standing to bring this suit.

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 3

Based on its text, structure, and context, the panel held that EPCA preempts building codes like Berkeley’s ordinance that ban natural gas piping within new buildings. The panel wrote that, in dismissing the suit, the district court limited EPCA’s preemptive scope to ordinances that facially or directly regulate covered appliances, but such limits do not appear in EPCA’s text. EPCA’s preemption provision extends to regulations that address the products themselves and building codes that concern their use of natural gas. By enacting EPCA, Congress ensured that States and localities could not prevent consumers from using covered products in their homes, kitchens, and business. EPCA thus preempts Berkeley’s building code, which prohibits natural gas piping in new construction buildings from the point of delivery at the gas meter. Concurring, Judge O’Scannlain wrote that he agreed that EPCA preempts the Ordinance, but he only reached that conclusion because, under Ninth Circuit precedent, he was bound to hold that the presumption against preemption does not apply to the express-preemption provision at issue. He wrote that the issue presents a challenging question in a deeply troubled area of law—namely, which of the apparently conflicting lines of cases the court should follow in applying the presumption against preemption in express- preemption cases. Concurring, Court of International Trade Judge Baker wrote separately to express his