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. OPINION CITY OF BERKELEY,

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

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

Opinion by Judge Bumatay; Concurrence by Judge O’Scannlain; Concurrence by Judge Baker

SUMMARY **

Energy Law / Preemption

The panel reversed the district court’s dismissal of the California Restaurant Association’s action alleging that the Energy Policy and Conservation Act preempts a City of Berkeley regulation that prohibits the installation of natural gas piping within newly constructed buildings. The panel held that the California Restaurant Association, whose members include restaurateurs and chefs, had Article III associational standing to bring this suit because it demonstrated that (1) at least one of its members had suffered an injury in fact that was (a) concrete and particularized and (b) actual or imminent, rather than conjectural or hypothetical; (2) the injury was fairly traceable to the challenged action; and (3) it was likely, not merely speculative, that the injury would be redressed by a favorable decision. Specifically, the Association established that the ordinance would imminently harm its members because it alleged that its members would open or relocate a restaurant in Berkeley but for the city’s ban on natural gas piping.

** 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

The panel held that the Energy Policy and Conservation Act preempts the Berkeley ordinance. The panel wrote that, in this express preemption case, it addressed the plain meaning of the Act without any presumptive thumb on the scale for or against preemption. The Act expressly preempts State and local regulations concerning the energy use of many natural gas appliances, including those used in household and restaurant kitchens. 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. The panel held that, by its plain text and structure, the Act’s preemption provision encompasses building codes that regulate natural gas use by covered products. By preventing such appliances from using natural gas, the Berkeley building code did exactly that. The panel reversed and remanded for further proceedings. Concurring, Judge O’Scannlain wrote that he agreed that the Energy Policy and Conservation Act preempts the Berkeley 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. Judge O’Scannlain wrote, however, that the law regarding the presumption against preemption in express-preemption cases is troubl