FOR PUBLICATION
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 reservations about the
Association’s standing and to explain his view of why the
ordinance invades the core area preempted by EPCA.
Judge Friedland, joined (except as to the first sentence
and accompanying footnote) by Chief Judge Murguia and
4 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY
Judges Wardlaw, Gould, Koh, Sung, Sanchez, and Mendoza,
dissented from the denial of rehearing en banc. She wrote to
urge any future court that interprets EPCA not to repeat the
panel opinion’s mistakes. She wrote that EPCA’s history,
text, and structure all show that the Berkeley ordinance is not
preempted because it does not affect “energy use” within the
meaning of the statute.
Respecting the denial of rehearing en banc, Judge
Berzon, joined by Judges Paez and W. Fletcher, agreed with
Judge Friedland’s dissent from the denial of rehearing en
banc.
COUNSEL
Brian C. Baran (argued), Reichman Jorgensen Lehman &
Feldberg LLP, Washington, D.C.; Courtland L. Reichman,
Laura Carwile, Ariel C. Green Anaba, and Sarah Jorgensen,
Reichman Jorgensen Lehman & Feldberg LLP, Redwood
Shores, California; Kylie C. Kim, Massey & Gail LLP,
Washington, D.C.; Gary J. Toman, Weinberg Wheeler
Hudgins Gunn & Dial, Atlanta, Georgia; for Plaintiff-
Appellant.
Anthony L. Francois (argued) and Peter S. Prows, Briscoe
Ivester & Bazel LLP, San Francisco, California; Sean H.
Donahue, Donahue Goldberg & Weaver LLP, Washington,
D.C.; Brendan Darrow, Rent Stabilization Board, Berkeley,
California; Farima F. Brown, City Attorney, Berkeley Office
of the City Attorney, Berkeley, California; for Defendant-
Appellee.
Angelo I. Amador, Restaurant Law Center, Washington,
D.C., for Amicus Curiae Restaurant Law Center.
CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 5
Thomas G. Pulham (argued), Deputy Attorney General;
Michael S. Raab, H. Thomas Byron, III, and Joseph F. Busa,
Appellate Staff Attorneys, Civil Division; Stephanie Hinds,
Acting United States Attorney; Ismail J. Ramsey, Unites
States Attorney; Brian M. Boynton, Principal Deputy
Assistant Attorney General; United States Department of
Justice, Washington, D.C.; Emily Hammond, Deputy
General Counsel for Litigation, Regulation, and
Enforcement; Alexandra Klass, Deputy General Counsel for
Energy Efficiency and Clean Energy Demonstrations; Brent
Allen, Deputy General Counsel for Environment and
Litigation; United States Department of Energy,
Washington, D.C.; Samuel T. Walsh, General Counsel; for
Amicus Curiae USA.
Michael L. Murray and Matthew J. Agen, American Gas
Association, Washington, D.C., for Amicus Curiae
American Gas Association.
Megan Berge, Baker Botts LLP, San Francisco, California;
JoAnna Adkisson, Baker Botts LLP, Washington, D.C.;
Francesca Eick, Baker Botts LLP, Austin, Texas; for Amici
Curiae Air Conditioning, Heating, and Refrigeration
Institute; California Building Industry Association, Hearth,
Patio, & Barbecue Association; National Association of
Home Builders; and National Association of Manufacturers.
Michael Burger, Jennifer Danis, and Amy E. Turner, Sabin
Center for Climate Change Law, New York, New York, for
Amici Curiae National League of Cities; League of
California Cities; and California State Association of
Counties.
Theodore A.B. McCombs, Jonathan A. Wiener, M. Elaine
Meckenstock, and Somerset Perry, Deputy Attorneys
General; David A. Zonana and Myung J. Park, Supervising
6 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY
Deputy Attorneys General; Edward H. Ochoa and Robert W.
Byrne, Senior Assistant Attorneys General; Rob Bonta,
California Attorney General; California Attorney General’s
Office, San Diego, California; Brian E. Frosh, Maryland
Attorney General, Maryland Attorney General’s Office,
Baltimore, Maryland; Andrew J. Bruck, Acting New Jersey
Attorney General, New Jersey Attorney General’s Office,
Trenton, New Jersey; Letitia James, New York Attorney
General, New York Attorney General’s Office, New York,
New York; Robert W. Ferguson, Washington Attorney
General, Washington Attorney General’s Office, Seattle,
Washington; Georgia Pestana, Corporation Counsel, City of
New York, New York, New York; Maura Healey,
Commonwealth of Massachusetts Attorney General,
Commonwealth of Massachusetts Attorney General’s
Office, Boston, Massachusetts; Hector Balderas, New
Mexico Attorney General, New Mexico Attorney General’s
Office, Santa Fe, New Mexico; for Amici Curiae the states
of California, Maryland, New York, New Jersey, New
Mexico, New York, Oregon, and Washington, The
Commonwealth of Massachusetts, The District of Columbia,
and the City of New York.
Regina J. Hsu, Earthjustice, San Francisco, California;
Timothy R. Oberleiton, Earthjustice, Washington, D.C.; for
Amici Curiae Climate Health Now, San Francisco Bay
Physicians for Social Responsibility, Physicians for Social
Responsibility & American Thoracic Society.
Daniel N. Carpenter-Gold, Cara A. Horowitz, and Julia E.
Stein, Frank G. Wells Environmental Law Clinic, UCLA
School of Law, Los Angeles, California, for Amici Curiae
Energy and Environmental Law Professors.
CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 7
Kimberley E. Leefatt, Natural Resources Defense Council,
Santa Monica, California; Thomas Zimpleman, Natural
Resources Defense Council, Washington, D.C.; for Amici
Curiae Chef Christopher Galarza and Chef Gerard Kenny II.
Gloria D. Smith, Sierra Club, Oakland California, for
Amicus Curiae Sierra Club.
Daniel J. Becker, Assistant Counsel; John J. Sipos, Deputy
General Counsel & Solicitor; New York Public Service
Commission, Office of General Counsel, Albany, New
York; for Amicus Curiae New York State Public Service
Commission.
Nathaniel R. Mattison, Guarini Center on Environmental,
Energy and Land Use Law, New York, New York, for
Amicus Curiae Guarini Center on Environmental, Energy
and Land Use Law at New York University School of Law.
ORDER
The opinion, Judge O’Scannlain’s concurrence, and
Judge Baker’s concurrence filed on April 17, 2023, and
published at 65 F.4th 1045 (9th Cir. 2023), are amended by
the opinion and respective concurrences filed concurrently
with this order.
Appellants filed a petition for rehearing en banc, Docket
No. 92. Judge Bumatay voted to deny the petition for
rehearing en banc and Judge O’Scannlain and Judge Baker
so recommended.
The full court was advised of the petition for rehearing
en banc. A judge of the court requested a vote on whether
to rehear the matter en banc. The matter failed to receive a
8 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY
majority of the votes of the non-recused active judges in
favor of en banc consideration. Fed. R. App. P. 35. The
petition for rehearing en banc is DENIED. No further
petitions for rehearing en banc will be considered. Judge
H.A. Thomas did not participate in the deliberations or vote
in this case.
OPINION
BUMATAY, Circuit Judge:
By completely prohibiting the installation of natural gas
piping within newly constructed buildings, the City of
Berkeley has waded into a domain preempted by Congress.
The Energy Policy and Conservation Act (“EPCA”), 42
U.S.C. § 6297(c), 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. It enacted a building code that prohibits natural
gas piping in those buildings from the point of delivery at a
gas meter, rendering the gas appliances useless.
The California Restaurant Association, whose members
include restaurateurs and chefs, challenged Berkeley’s
regulation, raising an EPCA preemption claim. The district
court dismissed the suit. In doing so, it limited the Act’s
preemptive scope to ordinances that facially or directly
regulate covered appliances. But such limits do not appear
in EPCA’s text. By its plain text and structure, EPCA’s
preemption provision also encompasses building codes
concerning the energy use of covered products. And thus
CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 9
EPCA preempts Berkeley’s building code because it
prohibits natural gas piping in new construction buildings
from the point of delivery at the gas meter.
We thus conclude that EPCA preempts Berkeley’s
building code’s effect against covered products and reverse.
I.
In July 2019, the Council of the City of Berkeley,
California, adopted Ordinance No. 7,672-N.S.—
“Prohibition of Natural Gas Infrastructure in New
Buildings” (“Ordinance”). As its name implies, the
Ordinance prohibits, with some exceptions, “Natural Gas
Infrastructure” in “Newly Constructed Buildings” in the City
of Berkeley. Berkeley Mun. Code (“BMC”)
§ 12.80.040(A). “Natural Gas Infrastructure” is defined as
“fuel gas piping, other than service pipe, in or in connection
with a building, structure or within the property lines of
premises, extending from the point of delivery at the gas
meter as specified in the California Mechanical Code and
Plumbing Code.” Id. § 12.80.030(E). And “Newly
Constructed Building” refers to “a building that has never
before been used or occupied for any purpose.” Id.
§ 12.80.030(F). These building codes “apply to Use Permit
or Zoning Certificate applications” submitted after the
Ordinance’s January 1, 2020, effective date. Id.
§§ 12.80.020(A), 12.80.080.
The Ordinance seeks to “eliminate obsolete natural gas
infrastructure and associated greenhouse gas emissions in
new buildings where all-electric infrastructure can be most
practicably integrated, thereby reducing the environmental
and health hazards produced by the consumption and
transportation of natural gas.” Id. § 12.80.010(H). By its
own terms, the Ordinance “shall in no way be construed . . .
10 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY
as requiring the use or installation of any specific appliance
or system as a condition of approval.” Id. § 12.80.020(C).
The Ordinance also exempts a new construction from its
prohibition if it is in the “public interest” or if it is “not
physically feasible.” Id. §§ 12.80.040(A), 12.80.050.
In November 2019, the Association sued the City of
Berkeley, claiming that EPCA and state law preempted the
Ordinance. After the City moved to dismiss under Federal
Rule of Civil Procedure 12(b)(6), the district court dismissed
the EPCA claim. It concluded that EPCA must be
“interpreted in a limited manner,” so that the Act doesn’t
“sweep into areas that are historically the province of state
and local regulation.” Cal. Rest. Ass’n v. City of Berkeley,
547 F. Supp. 3d 878, 891 (N.D. Cal. 2021). Because the
Ordinance does “not facially regulate or mandate any
particular type of product or appliance” and because its
impact is “at best indirect[]” on consumer products, the
district court ruled that EPCA does not preempt the
Ordinance. Id. It then declined to exercise supplemental
jurisdiction and dismissed the state-law claims. Id.
The Association timely appealed, and we review de
novo. Air Conditioning & Refrigeration Inst. v. Energy Res.
Conservation & Dev. Comm’n, 410 F.3d 492, 495 (9th Cir.
2005).
II.
Before jumping to the merits of this case, we must first
assure ourselves of the Association’s Article III standing. To
satisfy associational standing requirements, an organization
must demonstrate that (1) at least one of its members has
suffered an injury in fact that is (a) concrete and
particularized and (b) actual or imminent, rather than
conjectural or hypothetical; (2) the injury is fairly traceable
CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 11
to the challenged action; and (3) it is likely, not merely
speculative, that the injury will be redressed by a favorable
decision. Nat. Res. Def. Council v. EPA, 735 F.3d 873, 878
(9th Cir. 2013). Berkeley contends that the Association
lacks standing because it failed to establish that the
Ordinance would imminently harm its members. We
disagree.
When “standing is challenged on the basis of the
pleadings,” we must “accept as true all material allegations
of the complaint” and “construe the complaint in favor of the
complaining party.” Pennell v. City of San Jose, 485 U.S. 1,
7 (1988) (simplified). At this stage, “general factual
allegations of injury resulting from the defendant’s conduct
may suffice, for on a motion to dismiss we presume that
general allegations embrace those specific facts that are
necessary to support the claim.” Lujan v. Defs. of Wildlife,
504 U.S. 555, 561 (1992) (simplified).
In its complaint, the Association explains that restaurants
rely on natural gas for preparing certain foods and that many
chefs are trained only on natural gas stoves. The
Association’s members include restaurateurs and chefs who
do business or seek to do business in Berkeley. And the
Association alleges that one or more of its members would
like to open or relocate a restaurant in a new Berkeley
building completed after the Ordinance became effective on
January 1, 2020. But those members could not do so because
of the Ordinance’s ban on natural gas. The City contends
these allegations don’t establish standing because they don’t
allege “how soon” in the future an Association member
would open or relocate a restaurant.
To establish “actual or imminent” injury, the Association
must show a “credible threat that a probabilistic harm will
12 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY
materialize.” Nat. Res. Def. Council, 735 F.3d at 878
(simplified). The goal of this requirement is “to ensure that
the concept of ‘actual or imminent’ harm is not stretched
beyond its purpose, which is to ensure that the alleged injury
is not too speculative for Article III purposes.” Id.
(simplified). In Natural Resources Defense Council, we
held that it was enough that the government’s action
“increases the threat of future harm to [the organization’s]
members.” Id. In that case, the imminence prong was
satisfied when the Environmental Protection Agency’s
conditional registration of two pesticides would “increase[]
the odds of exposure” for the organization’s members’
children. Id.
Given our precedent, the Association has easily
established standing. The Association has alleged that its
members would open or relocate a restaurant in a new
building in Berkeley but for the City’s ban on natural gas.
Thus, because of the Ordinance, the Association’s members
cannot open a restaurant in any new Berkeley building and
use natural gas appliances. That poses a “credible threat” of
a “probabilistic harm,” even if the Association hasn’t
provided a date certain for any restaurant’s opening night.
We now turn to the merits of this challenge.
III.
At issue here is the scope of EPCA’s preemption clause.
Berkeley argues that EPCA preemption only covers
regulations that impose standards on the design and
manufacture of appliances, not regulations that impact the
distribution and availability of energy sources like natural
gas. The federal government, as amicus, offers a slightly
different take. It contends that EPCA only preempts “energy
conservation standards” that operate directly on the covered
CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 13
products themselves. The Association disagrees with both.
It believes that EPCA preemption extends to regulations,
like Berkeley’s building code, that effectively ban covered
products from using available energy sources.
As with any express preemption case, our focus is on the
plain meaning of the preemption provision. See Puerto Rico
v. Franklin Cal. Tax-Free Tr., 579 U.S. 115, 125 (2016).
That’s because “the plain wording of the clause . . .
necessarily contains the best evidence of Congress’ pre-
emptive intent.” Id. In discerning its meaning, we look to
EPCA’s text, structure, and context. See R.J. Reynolds
Tobacco Co. v. Cnty. of Los Angeles, 29 F.4th 542, 552 (9th
Cir. 2022). And we apply this textual analysis “without any
presumptive thumb on the scale” for or against preemption.
Id. at 553 n.6.
Based on its text, structure, and context, we conclude
EPCA preempts building codes like Berkeley’s Ordinance
that ban natural gas piping within new buildings. Our
holding here is limited. We conclude only that EPCA
applies to building codes and that Berkeley’s Ordinance falls
with the Act’s preemptive scope.
A.
EPCA’s preemption clause establishes that, once a
federal energy conservation standard becomes effective for
a covered product, “no State regulation concerning the
energy efficiency, energy use, or water use of such covered
product shall be effective with respect to such product,”
unless the regulation meets one of several categories not
relevant here. 42 U.S.C. § 6297(c). For our purposes, we
need to determine what constitutes a “regulation concerning
the . . . energy use” of a covered product.
14 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY
Of critical importance here is that the structure of the
statute indicates that “a regulation concerning the . . . energy
use” can include “building code requirements.” § 6297(f)
(heading). “A regulation . . . that is contained in a State or
local building code for new construction concerning the
energy efficiency or energy use of a covered product” is
superseded by EPCA unless it complies with various
requirements. § 6297(f)(1)–(3) (emphasis added).1 So
subsection (f) demonstrates that EPCA’s preemptive scope
extends beyond direct or facial regulations of covered
products to at least include building codes “concerning the
energy . . . use” of such products.
To ascertain what Congress meant by “energy use,” we
turn to the statutory definitions. EPCA defines “energy use”
as “the quantity of energy directly consumed by a consumer
product at point of use.” § 6291(4).2 “[E]nergy” refers to
“electricity” or “fossil fuels,” such as natural gas. § 6291(3).
A “consumer product” is “any article” which “consumes, or
is designed to consume,” energy or water and is distributed
for personal use. § 6291(1). The preemption clause applies
to any “covered product,” which is defined as certain
“consumer products,” like refrigerators, dishwashers, and
kitchen ovens. §§ 6291(2), 6292.3 And as a matter of
ordinary meaning, “point of use” means the “place where
1
It’s undisputed here that Berkeley’s Ordinance does not comply with
these requirements.
2
Unless otherwise indicated, all section (§) citations refer to Title 42 of
the U.S. Code.
3
The preemption clause also applies to “industrial equipment,” which
includes commercial equipment that may be used in restaurants. See
§§ 6311(1), 6316(a).
CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 15
something is used.” Oxford English Dictionary Online
(2022).
So putting these terms together, EPCA preempts
regulations, including “building code requirements,”
§ 6297(f), that relate to “the quantity of [natural gas] directly
consumed by” certain consumer appliances at the place
where those products are used. Right off the bat, we know
that EPCA is concerned with the end-user’s ability to use
installed covered products at their intended final
destinations, like restaurants. After all, a building code that
prohibits consumers from using natural gas–powered
appliances in newly constructed buildings necessarily
regulates the “quantity of energy directly consumed by [the
appliances] at point of use.” So, by its plain language, EPCA
preempts Berkeley’s regulation here because it prohibits the
installation of necessary natural gas infrastructure on
premises where covered appliances are used.
Berkeley’s main contention is that its Ordinance doesn’t
regulate “energy use” because it bans natural gas rather than
prescribes an affirmative “quantity of energy.” While
Berkeley concedes that a prohibition on natural gas
infrastructure reduces the energy consumed by natural gas
appliances in new buildings to “zero,” it argues that “zero”
is not a “quantity” and so the Ordinance is not an “energy
use” regulation. But that defies the ordinary meaning of
“quantity.” In context, “quantity” means “a property or
attribute that can be expressed in numerical terms.” Oxford
16 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY
English Dictionary Online (2022). And it is well accepted
in ordinary usage that “zero” is a “quantity.”4
Equally unavailing is Berkeley’s argument that EPCA’s
definition of “energy efficiency” precludes a total
prohibition on natural gas piping from being an “energy use”
regulation. EPCA defines “energy efficiency” as the “ratio
of useful output of services . . . to the energy use” of the
product. § 6291(5). According to Berkeley, “zero” cannot
serve as the “quantity of energy” in “energy use”; otherwise,
the “energy efficiency” ratio would have an impermissible
“zero” denominator. But in that case, both the denominator
(“energy use”) and the numerator (“output”) would be
zero—which simply yields an indeterminate result.5 And we
4
See, e.g., SolarWorld Ams., Inc. v. United States, 962 F.3d 1351, 1359
(Fed. Cir. 2020) (import data recorded “a quantity of zero”); United
States v. Everett, 601 F.3d 484, 493 (6th Cir. 2010) (referring to “zero”
as an “arbitrary quantity of time”); see also 85 Fed. Reg. 22,641
(discussing “a quantity of zero blocks” in an auction context). Even
children, bees, and crows apparently understand that “zero” is a
numerical quantity. See Ellen Bialystok & Judith Codd, Representing
Quantity Beyond Whole Numbers: Some, None, and Part, 54 Can. J.
Experimental Psych. 117–28 (2000) (showing children aged three to
seven could work with “quantities” including “whole numbers” and
“zeros”); see also Katie Spalding, Crows Once Again Prove Their
Intelligence By Showing That They Understand Zero, IFL Science (June
17, 2021) (citing evidence that honeybees and crows can “understand
zero as a numerical quantity—as ‘something’ rather than ‘nothing’”).
Same goes for the scientific community. See, e.g., A.S. Kompaneyets,
Theoretical Physics 377 (2d 2013) (“[T]he shift of an energy level is
equal to the average of the perturbation energy for unperturbed
motion . . . . But it is easy to see that the average of this quantity is equal
to zero.”).
5
In math, an “indeterminate” expression is “unknown or variable,” “not
definitively or precisely determined.” See Eric Weisstein,
Indeterminate, WOLFRAM MATHWORLD, https://perma.cc/2PD6-5ZZK.
CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 17
doubt that Congress meant to hide an exemption to the plain
text of EPCA’s preemption clause in a mathematical
equation.
Thus, a building code regulation that imposes a total ban
on natural gas is not exempt from EPCA just because it
lowers the “quantity of energy” consumed to “zero.” In
other words, a regulation on “energy use” fairly
encompasses an ordinance that effectively eliminates the
“use” of an energy source. As the Court said long ago, a
regulation may “assume the form of [a] prohibition.”
Champion v. Ames, 188 U.S. 321, 328 (1903).
And as a textual matter, EPCA preemption is not limited
to facial regulations of consumer products as the district
court held. Although the district court recognized EPCA’s
“broad” reach, it limited preemption to regulations that
“directly regulate either the energy use or energy efficiency
of covered appliances.” Cal. Rest. Ass’n, 547 F. Supp. 3d at
891. It thus cabined preemption to regulations that “facially
. . . mandate or require a[] particular energy use of a covered
product.” Id. Such a reading is divorced from the statute’s
text. It first ignores that “energy use” is based on
consumption that happens “at point of use.” § 6291(4). This
means that we measure energy use not only from where the
products roll off the factory floor, but also from where
consumers use the products. Put simply, by enacting EPCA,
Congress ensured that States and localities could not prevent
consumers from using covered products in their homes,
kitchens, and businesses. So EPCA preemption extends to
regulations that address the products themselves and
building codes that concern their use of natural gas.
To erase any doubt, rather than limit preemption to facial
regulations of products, Congress expressly expanded
18 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY
EPCA’s reach to regulations that “concern[]” such products.
§ 6297(c). The Supreme Court has explained that
“‘[c]oncerning’ means ‘relating to,’ and is the equivalent of
‘regarding, respecting, about.’” Lamar, Archer & Cofrin,
LLP v. Appling, 138 S. Ct. 1752, 1759 (2018) (simplified).
In the legal context, this has “a broadening effect, ensuring
that the scope of a provision covers not only its subject but
also matters relating to that subject.” Id. at 1760. We thus
read the term “expansively” and, as a matter of ordinary
meaning, a regulation may “concern” something without
directly regulating that thing. Cf. Morales v. Trans World
Airlines, Inc., 504 U.S. 374, 378–90 (1992) (holding that the
Airline Deregulation Act, which prohibits States from
enforcing any law “relating to rates, routes, or services” of
any air carrier, preempted fare-advertising guidelines that
“would have a significant impact upon” the airlines’ ability
to charge fares). At a minimum then, by using the term
“concerning,” Congress meant to expand preemption
beyond direct or facial regulations of covered appliances.
And a building code that bans the installation of piping that
transports natural gas from a utility’s meter on the premises
to products that operate on such gas “concerns” the energy
use of those products as much as a direct ban on the products
themselves.
Yet, the breadth of EPCA’s preemption provision “does
not mean the sky is the limit.” Dan’s City Used Cars, Inc.
v. Pelkey, 569 U.S. 251, 260 (2013). Though EPCA’s
preemption provision is broad, it is not unlimited. For
instance, our holding here has nothing to say about a State or
local government regulation of a utility’s distribution of
natural gas to premises where covered products might be
used. We only decide that EPCA’s preemptive scope applies
CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 19
to building codes that regulate the gas usage of covered
appliances on premises where gas is otherwise available.
Finally, EPCA’s waiver provision likewise shows the
extensive scope of the preemption clause. EPCA permits the
federal government to waive preemption if a State shows
that a proposed regulation is needed to meet “unusual and
compelling State or local energy[] interests.”
§ 6297(d)(1)(B)–(C). But it stops the federal government
from waiving preemption if the “State regulation will
significantly burden manufacturing, marketing, distribution,
sale, or servicing of the covered product on a national basis.”
§ 6297(d)(3). So the federal government must consider the
complete lifecycle of an appliance—from manufacturing to
servicing—in reviewing a waiver petition. Such a provision
would make little sense if the scope of EPCA’s preemption
ends with the design or manufacture of the product. A
burden on “servicing,” for example, may implicate
regulation of the installation and use of the product—like
Berkeley’s building code. And no doubt Berkeley’s ban, if
adopted by States and localities throughout the country,
would “significantly burden” the “sale” of covered products
“on a national basis.” Id.
B.
The Government offers slightly different textual
arguments. It contends that EPCA only preempts “energy
conservation standards” that operate directly on covered
products themselves. To justify its position, the Government
first latches onto EPCA’s language stating that a state
regulation concerning the energy use of a covered product is
not “effective with respect to such product.” § 6297(c). The
Government contends that this language limits EPCA’s
20 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY
preemptive scope to only direct regulations on covered
products.6
But the Government’s textual analysis is wrong. The
phrase the Government highlights simply limits EPCA’s
preemption to a regulation’s effect on covered products—it
doesn’t say that the regulation must be on the covered
products. To illustrate, think of EPCA’s preemption clause
as a conditional sentence: If a “regulation concern[s] . . .
[the] energy use . . . of [a] covered product,” then it is
preempted “with respect to such product.” The latter clause
doesn’t modify the meaning of the former.
To put it more concretely: Say a State enacts a broad
regulation on all appliances—some that are “covered” and
some that are not. EPCA would only supersede the
regulation’s impact on the covered products. And the State
could still enforce its regulation against the non-covered
products. In other words, if a building code concerns the
6
We note that the Government’s position hasn’t always been that EPCA
preempts only direct regulations on covered products. When interpreting
the 1978 version of EPCA, the Government concluded that the Act
would preempt regulations of energy infrastructure, like building codes.
The Government warned that “[s]tandards subject to preemption would
include standards for any particular type (or class) of covered products
established by mandatory State or local building codes.” 47 Fed. Reg.
57,198, 57,215 (Dec. 22, 1982) (emphasis added). Even more to the
point, the Government advised that a “[p]rohibition of hook-ups for
appliances with less than a certain efficiency would be subject to
preemption.” Id. So back in 1982, the Government acknowledged that
EPCA would supersede building codes dealing with energy requirements
for “hook-ups for appliances.” And the Government maintained this
position when EPCA’s preemption provision was narrower than today.
See § 6297(a)(2) (1978) (superseding any state regulation that provides
for “any energy efficiency standards or other requirement with respect to
energy efficiency or energy use of a covered product”).
CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 21
“energy use” of covered and non-covered products alike,
EPCA’s preemptive effect is limited to the covered products.
Here, Berkeley may enforce its building code on non-
covered products, but EPCA displaces its effect on covered
products.7 But this language in no way narrows a
“regulation concerning the . . . energy use” to direct
regulations on covered products themselves.
The Government next argues that EPCA preemption
only acts on regulations that are the equivalent of “energy
conservation standards.” For this, the Government relies on
the title of EPCA’s preemption provision. Section 6297(c)
is entitled, “General rule of preemption for energy
conservation standards when Federal standard becomes
effective for product.” Based on this heading, the
Government contends that “regulation[s] concerning energy
efficiency [or] energy use” in EPCA’s operative preemption
clause should be construed to mean only state regulations
that function as “energy conservation standards.” But there
are three problems with this argument.
First, § 6297(c)’s heading cannot supersede its plain text.
While the “title of a statute” may help clarify an ambiguous
word or phrase, it “cannot limit the plain meaning of the
text.” Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212 (1998)
(simplified). The Government hasn’t identified enough
ambiguity in the preemption clause for the subsection’s title
to provide much interpretive guidance.
Second, Congress gave “energy use,” “energy
efficiency,” and “energy conservation standards” related,
7
We thus disagree with the Association’s assertion that EPCA preempts
the Ordinance “as a whole.” Rather, when it comes to the Ordinance’s
effect on non-covered products, EPCA has no impact.
22 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY
but different, meanings. Recall that “energy use” is defined
as “the quantity of energy directly consumed by a consumer
product at point of use.” § 6291(4). At the same time, EPCA
defines “energy efficiency” as the “ratio of the useful output
of services from a consumer product to the energy use of
such product.” § 6291(5). And finally, an “energy
conservation standard” is generally “a performance standard
which prescribes a minimum level of energy efficiency or a
maximum quantity of energy use.” § 6291(6)(A). So for
EPCA purposes, these terms are closely related, but not
identical.
And third, elsewhere EPCA uses both phrases
together—which shows that they aren’t simply
interchangeable. For example, EPCA allows the federal
government to waive preemption for a regulation “which
provides for any energy conservation standard or other
requirement with respect to energy use, energy efficiency, or
water use.” § 6297(d)(1)(A). If “energy use” means “energy
conservation standards” as the Government argues, this
provision would create redundancy in the statutory text.
Rather, by placing them in a list like this, Congress intended
the phrases to be related, but distinct, concepts.
EPCA’s operative preemptive text is thus not limited to
“energy conservation standards” as the Government would
like us to hold. While EPCA’s preemptive effect is triggered
by federal enactment of an energy “performance standard”
on a covered product, the statute then broadly preempts any
state regulation concerning “energy use” and “energy
efficiency” of the covered product. §§ 6291(6)(A), 6297(c).
At bottom, the Government argues that we should supplant
“energy use” and “energy efficiency” and replace those
terms with “energy conservation standards.” But we
presume that Congress means what it says, and we can’t
CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 23
simply reconfigure the statute to fit the Government’s needs.
Indeed, after Congress has taken pains to define each phrase
separately, it would be inappropriate for courts to disregard
these nuances and treat the phrases as interchangeable.
C.
We next address Berkeley’s non-textual arguments.
Berkeley first argues that finding this specific building
code is preempted by EPCA would impliedly repeal the
Natural Gas Act, 15 U.S.C. § 717 et seq. We disagree. This
is a narrow opinion about Berkeley’s building codes. The
Natural Gas Act “create[s] a comprehensive and effective
regulatory scheme of dual state and federal authority” over
the wholesale of natural gas. S. Coast Air Quality Mgmt.
Dist. v. FERC, 621 F.3d 1085, 1090 (9th Cir. 2010). It does
so by granting the Federal Energy Regulatory Commission
(“FERC”) “exclusive jurisdiction” over three areas: the
“transportation of natural gas in interstate commerce,” the
“sale in interstate commerce of natural gas for resale,” and
“natural-gas companies engaged in such transportation or
sale.” Id. (quoting 15 U.S.C. § 717(b)). But the Natural Gas
Act “specifically exempted from” FERC regulation “the
‘local distribution of natural gas.’” Id. (quoting 15 U.S.C.
§ 717(b)).
By its terms, then, the Natural Gas Act only prevents
FERC from regulating the local distribution of gas. So as a
textual matter, the Natural Gas Act’s restriction on FERC
authority doesn’t conflict with Congress, through EPCA,
deciding to supplant building codes that prevent the
operation of natural gas appliances. Thus, there’s nothing
irreconcilable about the scope of EPCA’s preemption
provision and the Natural Gas Act. We see no implied repeal
problem because the Ordinance doesn’t prevent a utility’s
24 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY
distribution of natural gas to the meter at new buildings—
rather, it prevents the use of covered appliances by banning
piping within the building from a meter to an appliance. See
BMC § 12.80.030(E) (defining prohibited “natural gas
infrastructure” as “fuel gas piping, other than service pipe,
in or in connection with a building, structure or within the
property lines of premises, extending from the point of
delivery at the gas meter as specified in the California
Mechanical Code and Plumbing Code”) (emphasis added).
When gas arrives at a meter, it has been delivered to the user.
Rather than interfering with distribution of natural gas, the
Ordinance prevents a building occupant from using available
gas to run a covered appliance.
Berkeley finally contends that preemption here would
mean that the City must affirmatively make natural gas
available everywhere. That does not follow from our limited
decision today. We only hold that EPCA prevents Berkeley
from prohibiting new-building owners from “extending”
fuel gas piping within their buildings “from the point of
delivery at the gas meter” by way of a building code. See
BMC § 12.80.030(E). Our holding is very narrow—it
doesn’t touch on whether the City has any obligation to
maintain or expand the availability of a utility’s delivery of
gas to meters.
D.
Berkeley and the Government ask us to make
interpretive moves similar to those that the Supreme Court
rejected in Engine Manufacturers Association v. South
Coast Air Quality Management District, 541 U.S. 246
(2004). In that case, our court had interpreted the Clean Air
Act, which prohibits States from enforcing any standard
“relating to the control of emissions from new motor
CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 25
vehicles,” as not preempting a local ordinance that prevented
fleet operators from purchasing or leasing vehicles that did
not comply with the local emissions standards. Id. at 252.
In short, our court “engraft[ed]” a “limiting component”
onto the statute which narrowed the Clean Air Act’s
preemptive reach to standards on manufacturers, rather than
purchasers. Id. at 253. But the Supreme Court rejected our
approach and emphasized that “[t]he manufacturer’s right to
sell federally approved vehicles is meaningless in the
absence of a purchaser’s right to buy them.” Id. at 255.
Other Supreme Court cases teach the same lesson. See
Nat’l Meat Ass’n v. Harris, 565 U.S. 452, 458 (2012)
(holding that the Federal Meat Inspection Act, which
prohibits States from imposing requirements “with respect
to [livestock] premises, facilities and operations,” preempted
a California regulation that placed additional requirements
on the sale of meat); Am. Trucking Ass’ns v. City of Los
Angeles, 569 U.S. 641, 652 (2013) (criticizing State efforts
to “avoid preemption by shifting their regulatory focus” to
different companies within the same supply chain because it
did not “make[] any difference” that the State chose “an
indirect but wholly effective means” of achieving a
preempted goal); Rowe v. N.H. Motor Transp. Ass’n, 552
U.S. 364, 372 (2008) (finding state law that was “less direct
than it might be” nevertheless preempted because it
“produce[d] the very effect that the federal law sought to
avoid”).
As these cases make clear, States and localities can’t
skirt the text of broad preemption provisions by doing
indirectly what Congress says they can’t do directly. EPCA
would no doubt preempt an ordinance that directly prohibits
the use of covered natural gas appliances in new buildings.
So Berkeley can’t evade preemption by merely moving up
26 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY
one step in the energy chain and banning natural gas piping
within those buildings. Otherwise, the ability to use covered
products is “meaningless” if consumers can’t access the
natural gas available at the meter on the premises. See
Engine Mfrs. Ass’n, 541 U.S. at 255.
IV.
In sum, Berkeley can’t bypass EPCA’s preemption of
building codes that directly ban covered products by instead
simply prohibiting the piping that transports natural gas from
the utility’s meter to the appliance. EPCA thus preempts the
Ordinance’s effect on covered products. We therefore
reverse and remand for proceedings consistent with this
opinion. On remand, the district court must also reinstate the
Association’s state-law claims.
O’SCANNLAIN, Circuit Judge, concurring:
I agree that EPCA preempts the Ordinance. But I only
reach that conclusion because, under Ninth Circuit
precedent, I believe I am bound to hold that the presumption
against preemption does not apply to the express-preemption
provision before us today. That conclusion is neither
obvious nor easy. In my view, this issue presents a
challenging question in a deeply troubled area of law—
namely, which of the apparently conflicting lines of cases we
should follow in applying the presumption against
preemption in express-preemption cases.
At first glance, one might have thought this issue was
already resolved by our decision in Air Conditioning &
Refrigeration Inst. v. Energy Res. Conservation & Dev.
Comm’n, 410 F.3d 492 (9th Cir. 2005). There, like here, we
CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 27
were called upon to assess a set of express-preemption
provisions in EPCA. Id. at 495 (interpreting 42 U.S.C.
§§ 6297(a), 6316(a)-(b)). We followed Supreme Court
precedent and applied the Supreme-Court-mandated
“presumption against preemption” to interpret the EPCA
preemption provisions “narrow[ly].” Id. at 496 (applying
Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)). Our
decision in Air Conditioning was no outlier. The Supreme
Court consistently instructed us to apply the presumption in
express-preemption cases, at least in areas of traditional state
concern—and we consistently followed these instructions.
Sprint Telephony PCS, L.P. v. County of San Diego, 543
F.3d 571, 578 (9th Cir. 2008) (en banc) (confirming Air
Conditioning’s approach).
But things are, unfortunately, not so simple today. In its
recent Franklin decision, the Supreme Court stated that
“because the statute contains an express pre-emption clause,
we do not invoke any presumption against preemption.”
Puerto Rico v. Franklin Cal. Tax-Free Tr., 579 U.S. 115,
125 (2016) (cleaned up). The Court did not mention—much
less expressly overrule—the decades of cases where the
presumption had indeed been applied in like circumstances.
And the Court did not, respectfully, provide much discussion
of its decision not to apply the presumption. Instead, after
the Court stated it would “not invoke” the presumption, it
explained that it would “focus on the plain wording of the
clause,” which is “where the inquiry should end, for the
statute’s language is plain.” Id. (cleaned up).
What to make of Franklin’s “drive-by ruling” is
challenging. Whitman v. United States, 574 U.S. 1003
(2014) (Scalia, J., statement respecting denial of certiorari).
We do not assume that the Court has overruled its older
precedents “by implication.” Agostini v. Felton, 521 U.S.
28 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY
203, 237 (1997). And we do not easily assume that the Court
has abrogated our circuit precedents unless the decisions are
“clearly irreconcilable,” particularly where the Supreme
Court decisions we relied on remain on the books. Miller v.
Gammie, 335 F.3d 889, 900 (9th Cir. 2003). Nevertheless,
our circuit—without hesitating to consider Franklin’s limits
or the possibility of reconciling Franklin with existing
precedent—has broadly read Franklin categorically to
prohibit applying the presumption to express-preemption
provisions in future cases. See, e.g., R.J. Reynolds Tobacco
Co. v. County of Los Angeles, 29 F.4th 542, 553 n.6 (9th Cir.
2022). Under these post-Franklin decisions, Air
Conditioning no longer seems to govern here—and the
presumption does not apply.
Respectfully, I have my doubts. As an inferior-court
judge—bound to respect Supreme Court and Ninth Circuit
precedent—I have great difficulty in deciding how to read
the Supreme Court’s instructions here. See, e.g., Air Evac
EMS, Inc. v. Cheatham, 910 F.3d 751, 762 n.1 (4th Cir.
2018) (Wilkinson, J.) (noting the Supreme Court’s
“somewhat varying pronouncements on presumptions in
express preemption cases”). And I am not alone—circuits
are split on this issue. Dialysis Newco, Inc. v. Cmty. Health
Sys. Grp. Health Plan, 938 F.3d 246, 258 (5th Cir. 2019)
(collecting circuit split). While I ultimately conclude that,
under this court’s cases, the presumption does not apply
here, the law remains troubling and confused—beset by
tensions in Supreme Court precedents, disagreement among
the circuits, and important practical questions still
unanswered. I write separately to indicate the need for
further guidance.
CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 29
I
A
The application of the presumption against preemption
to express-preemption provisions has always raised hard
questions. But at least after the Supreme Court’s decision in
Cipollone, the rule was clear: the presumption applies even
to express-preemption provisions, at least in areas of
traditional state concern. See, e.g., Cipollone v. Liggett Grp.,
Inc., 505 U.S. 504, 518 (1992); Medtronic, 518 U.S. at 485.
Under this framework, we were instructed to interpret
express-preemption provisions “narrow[ly]” in light of “two
presumptions about the nature of preemption.” Medtronic,
518 U.S. at 485. First, “the historic police powers of the
States were not to be superseded by the Federal Act unless
that was the clear and manifest purpose of Congress.” Id.
(cleaned up). Second, “any understanding of the scope of a
preemption statute must rest primarily on a fair
understanding of congressional purpose,” which is
“primarily” discerned from statutory text but also informed
by “the structure and purpose of the statute as a whole.” Id.
at 485-86 (cleaned up).
This approach, to be sure, invited criticism early on. See,
e.g., Cipollone, 505 U.S. at 544–48 (Scalia, J., concurring
and dissenting in part) (explaining that “our job is to interpret
Congress’s decrees of pre-emption neither narrowly nor
broadly, but in accordance with their apparent meaning”);
Caleb Nelson, Preemption, 86 Va. L. Rev. 225, 291 n.205,
292–303 (2000) (arguing that “courts should not give
artificially crabbed constructions to preemption clauses”).
Despite these objections, the Supreme Court continued to
apply the presumption to express-preemption provisions
over the years. See, e.g., Cipollone, 505 U.S. at 518; N.Y.
30 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY
State Conference of Blue Cross & Blue Shield Plans v.
Travelers Ins. Co., 514 U.S. 645, 654 (1995); Medtronic,
518 U.S. at 485; De Buono v. NYSA-ILA Med. & Clinical
Servs. Fund, 520 U.S. 806, 814 (1997); Bates v. Dow
Agrosciences, LLC, 544 U.S. 431, 449 (2005); CTS Corp. v.
Waldburger, 573 U.S. 1, 18–19 (2014); but see Mutual
Pharm. Co. v. Bartlett, 570 U.S. 472 (2013) (applying
preemption but declining to mention the presumption against
preemption). And the inferior courts—duty-bound to follow
the Supreme Court—continued to apply the presumption as
well. See, e.g., Air Conditioning, 410 F.3d at 496; see also,
e.g., Mass. Ass’n of Health Maint. Orgs. v. Ruthardt, 194
F.3d 176, 179 (1st Cir. 1999) (same); La. Health Serv. &
Indem. Co. v. Rapides Healthcare Sys., 461 F.3d 529, 537
(5th Cir. 2006) (same).
B
Our circuit was no exception. In Air Conditioning—a
case remarkably on point here, at first glance—we followed
the Cipollone-era cases in deciding to interpret a set of
EPCA express-preemption provisions “narrowly.” 410 F.3d
at 497, 501. We first restated the Supreme Court’s approach.
Our interpretation of the preemption provisions was
“informed by two presumptions about the nature of
preemption.” Id. at 496 (citing Medtronic, 518 U.S. at 485).
First was “the starting presumption that Congress did not
intend to supplant state law,” at least in an area involving the
“‘historic police powers of the States.’” Id. (quoting
Medtronic, 518 U.S. at 485). Second was the principle that
“‘the purpose of Congress is the ultimate touchstone in every
pre-emption case,’” as revealed “‘not only in the text, but
through [our] reasoned understanding of the way in which
Congress intended the statute and its surrounding regulatory
scheme to affect business, consumers, and the law.’” Id.
CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 31
(quoting Medtronic, 518 U.S. at 485–86). We then dutifully
applied this approach—concluding that a narrow reading of
the text, along with a study of the legislative history,
revealed that the preemption provisions were owed a
“narrow” construction. Id. at 497, 501. Because the Air
Conditioning decision faithfully applied Supreme Court
precedent, we confirmed its legal standard in Sprint
Telephony, 543 F.3d at 578 (en banc).
II
Given this backdrop, one might have thought that the
question whether the presumption against preemption
applies here is an easy one, already resolved by our decision
in Air Conditioning. Because a “narrow” reading is
available, one might have assumed that the presumption
against preemption applies, and EPCA does not preempt the
Ordinance. Such an assumption, though respectable, would
be wrong—at least in the Ninth Circuit. As explained below,
the law has grown more complicated and, might I say,
confused since Air Conditioning was decided. The Supreme
Court’s instructions since Air Conditioning have not proved
entirely consistent with its earlier decisions—and inferior
courts remain divided over what to make of the Court’s
decision in Franklin, which did “not invoke” the
presumption but still declined to overrule decisions where
the presumption had been applied in like circumstances.
Franklin, 579 U.S. at 125; see Air Evac, 910 F.3d at 762 n.1
(Wilkinson, J.). In our court, at least, we have taken a broad
view of Franklin, and the presumption against preemption
no longer seems to apply to express-preemption provisions.
See Reynolds, 29 F.4th at 553 n.6. But I suggest the Supreme
Court’s instructions on this point are not so clear, and I
would welcome guidance on whether we have followed
those instructions correctly.
32 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY
A
The Supreme Court used to tell us that the presumption
against preemption applies to express-preemption provisions
in areas of traditional state concern. But then, in Franklin,
the Supreme Court—tasked to decide whether the
Bankruptcy Act preempted a Puerto Rico debt-collection
statute—stated that “because the statute contains an express
pre-emption clause, we do not invoke any presumption
against preemption but instead focus on the plain wording of
the clause, which necessarily contains the best evidence of
Congress’ pre-emptive intent.” Franklin, 579 U.S. at 125
(cleaned up). The Court went on to conclude that the statute
was preempted—explaining that “the plain text of the
Bankruptcy Code begins and ends [the] analysis” because
“the statute’s language is plain.” Id. (cleaned up).
In doing so, the Court, I suggest, left much room for
confusion. The Franklin Court did not acknowledge—and,
most importantly, did not expressly overturn—the decades
of decisions applying the presumption against preemption to
express-preemption provisions. And the Franklin Court did
not resolve—nor even discuss—the scope of the rule it was
applying. Was the Franklin Court simply electing to “not
invoke” the presumption in a case easily answered by the
“plain” statutory text? Perhaps Franklin’s rule prohibits the
application of the presumption to all express-preemption
provisions. But perhaps Franklin’s rule also depends on
other considerations—such as whether the statute operates
in an area of traditional state concern, see Bates, 544 U.S. at
449, or whether the preemption provision is truly in
equipoise, see Shuker v. Smith & Nephew, PLC, 885 F.3d
760, 771 n.9 (3d Cir. 2018); Bates, 544 U.S. at 432
(explaining that even if another “plausible alternative”
reading were available, “this Court would have a duty to
CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 33
accept the reading disfavoring pre-emption”). Perhaps the
Court is moving away from applying preemption with an eye
to the legislative intent and purpose that were so important
during the Cipollone era, and toward an approach centered
on the plain text enacted by Congress. Compare, e.g.,
Franklin, 579 U.S. at 125 (beginning and ending the analysis
with “plain text”), with Medtronic, 518 U.S. at 485, 490–91
(examining the “basic purpose of the legislation as well as
its history”). With respect, Franklin leaves much
unanswered—and I wonder if its “drive-by ruling,” which
appears to “contradict[] the many cases before,” Whitman,
574 U.S. at 1003 (Scalia, J., statement respecting denial of
certiorari), really goes so far as to abrogate the decades of
case law applying the presumption to express-preemption
provisions in so many different statutes.
B
Our court has adopted a broad understanding of the
precedential sweep of Franklin’s passing statement. In
several post-Franklin decisions, we have explained, without
any apparent reservation, that when “‘the statute contains an
express pre-emption clause, we do not invoke any
presumption against pre-emption but instead focus on the
plain wording of the clause, which necessarily contains the
best evidence of Congress’ pre-emptive intent.’” Int’l Bhd.
of Teamsters, Loc. 2785 v. Fed. Motor Carrier Safety
Admin., 986 F.3d 841, 853 (9th Cir. 2021) (quoting Franklin,
579 U.S. at 125) (cleaned up); see also Nat’l R.R. Passenger
Corp. v. Su, 41 F.4th 1147, 1153 n.1 (9th Cir. 2022) (same);
Reynolds, 29 F.4th at 553 n.6 (same); Connell v. Lima Corp.,
988 F.3d 1089, 1097 (9th Cir. 2021) (same); Atay v. County
of Maui, 842 F.3d 688, 699 (9th Cir. 2016) (same). Our
circuit has also declined to apply the presumption even
beyond Franklin’s immediate context—including in areas of
34 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY
traditional state concern, see Int’l Bhd. of Teamsters, 986
F.3d at 853, and cases involving statutory ambiguity, see
Reynolds, 29 F.4th at 553 n.6. Perhaps that is a plausible
reading of the Supreme Court’s instructions, when all the
Court’s cases are read together. But I have my reservations,
and I regret that, with due respect for my colleagues, we have
not meaningfully grappled with the issue.
1
First, I am not convinced that we have correctly followed
the Supreme Court’s instructions in this admittedly troubled
area. The Supreme Court is always free, of course, to change
its precedent. But our court does not enjoy such power. As
explained, while Franklin declined to invoke the
presumption, it also declined expressly to mention—much
less to overrule—the many cases where the Court had
repeatedly applied the presumption. I do not read Franklin’s
passing remark as sub silentio overruling the decades of
Supreme Court cases that held—indeed, mandated—that the
presumption applies. And I have real doubts about whether
Franklin abrogated Ninth Circuit precedents that rested on
pre-Franklin Supreme Court decisions. Perhaps Franklin’s
rule could be read modestly and reconciled with some of
those decisions. See Shuker, 885 F.3d at 771 n.9 (giving
Franklin a narrow reading). And perhaps Franklin could be
understood to leave intact circuit precedents that were based
on Supreme Court decisions that Franklin declined directly
to disturb. See, e.g., Air Conditioning, 410 F.3d at 495
(relying on Medtronic, 518 U.S. at 485); Golden Gate Rest.
Ass’n v. City & County of San Francisco, 546 F.3d 639, 647
(9th Cir. 2008) (relying on Travelers, 514 U.S. at 661); cf.
Dialysis, 938 F.3d at 259 n. 11 (concluding that Franklin did
not abrogate circuit precedent predicated on Travelers). In
the face of so much law from the Court requiring the
CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 35
application of the presumption over the years, I would not
rush to read Franklin as categorically establishing that the
presumption is inapplicable to express-preemption
provisions across the board.
2
Second, whatever the extent of Franklin’s reach, I am
concerned that our court has not adequately grappled with
this difficult question. I regret that essentially none of our
decisions relying on Franklin to jettison our pre-Franklin
approach offered any express discussion of the Miller or
Agostini doctrines—ordinarily a requirement for us to act in
the teeth of old precedent. See, e.g., Miller, 335 F.3d at 900
(holding that a prior circuit authority is only abrogated where
it is “clearly irreconcilable” with the “reasoning or theory of
intervening higher authority”); Agostini, 521 U.S. at 237
(holding that “lower courts should follow the case which
directly controls, leaving to this Court the prerogative of
overruling its own decisions”). Our cases that have
addressed Franklin’s scope and effect have said, with all due
respect, very little—and, with due respect again, nothing that
directly addresses the inquiries Miller and Agostini require
us to conduct. See Nat’l R.R. Passenger Corp., 41 F.4th at
1153 n.1; Reynolds, 29 F.4th at 553 n.6; Teamsters, Loc.
2785, 986 F.3d at 853; Atay, 842 F.3d at 699; Connell, 988
F.3d at 1097. Perhaps our court has correctly interpreted the
Supreme Court’s instructions, but the lack of any meaningful
engagement with the question does not inspire confidence.
3
But I do not write on a blank slate. Even though Air
Conditioning applied the presumption to an express-
preemption provision in EPCA, I understand the Ninth
Circuit precedent since Franklin to instruct that the broad
36 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY
reading of Franklin is now our court’s law—meaning that at
least where, as here, we are tasked to interpret the
preemptive scope of a new express-preemption provision,
the presumption against preemption is inapplicable. See,
e.g., Reynolds, 29 F.4th at 553 n.6; supra at 33 (collecting
cases establishing this rule). Under this approach, even if
Air Conditioning continues to govern the specific
preemption provisions it was tasked to construe (42 U.S.C.
§§ 6297(a), 6316(a)-(b)), it should not be extended to the
neighboring-but-distinct express-preemption provision we
are required to interpret today (42 U.S.C. § 6297(c))—and
so the presumption does not apply here. Perhaps that is a
puzzling and unsatisfying result. But it is the one that Ninth
Circuit precedent seems to require.
C
One final note. I am not alone in my confusion over how
to interpret the Supreme Court’s instructions. As others have
observed, the Supreme Court’s “somewhat varying
pronouncements on presumptions in express preemption
cases” have caused divisions in the circuits, in what Judge
Wilkinson has described as “the great preemption wars.” Air
Evac, 910 F.3d at 762 n.1 (collecting varying Supreme Court
instructions); see also Dialysis, 938 F.3d at 258 (collecting
circuit split).
There is much confusion over how broadly to read
Franklin’s passing remark—and what to do with the many
cases, unmentioned by Franklin, where the presumption had
applied. Some circuits (including ours) have read Franklin
broadly to prohibit applying the presumption to express-
preemption provisions in future cases. See Atay v. County of
Maui, 842 F.3d 688, 699 (9th Cir. 2016); Dialysis Newco,
Inc. v. Cmty. Health Sys. Grp. Health Plan, 938 F.3d 246,
CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 37
259 (5th Cir. 2019); Watson v. Air Methods Corp., 870 F.3d
812, 817 (8th Cir. 2017); EagleMed LLC v. Cox, 868 F.3d
893, 903 (10th Cir. 2017). Other courts, however, are not so
sure—and the Third Circuit, at least, has read Franklin to
permit applying the presumption where an express-
preemption provision implicates an area of traditional state
concern. See Shuker, 885 F.3d at 771 n.9; cf. Air
Conditioning, 410 F.3d at 496 n.1.
As inferior-court judges, we ultimately must address the
important question about whether Franklin has spoken with
sufficient clarity to abrogate existing Supreme Court and
circuit precedent—or whether Franklin can be reconciled
with at least some of those cases. See, e.g., Miller, 335 F.3d
at 900 (abrogation of circuit precedent); Agostini, 521 U.S.
at 237 (abrogation of Supreme Court precedent); Khan v.
State Oil Co., 93 F.3d 1358, 1363 (7th Cir. 1996) (Posner,
J.). While some circuits have given that issue careful
attention, Dialysis, 938 F.3d at 259 n.11 (declining to
“extend” a pre-Franklin circuit decision that rested on
Travelers, but also declining to “abrogate[]” it), the question
of Franklin’s abrogating reach remains unsettled—with
significant implications for the vast and important areas of
law where Congress has sought to extend federal supremacy.
* * *
We are duty-bound to apply binding precedents of the
Supreme Court and the Ninth Circuit. Alas, those precedents
“are not always clear, consistent, or coherent.” Separation of
Church & State Comm. v. City of Eugene, 93 F.3d 617, 627
(9th Cir. 1996) (O’Scannlain, J., concurring). Here, I believe
I am bound by our post-Franklin precedents to hold that the
presumption is inapplicable to the express-preemption
provision before us today. And for that reason, I join the
38 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY
panel’s opinion. But I remain concerned that this area of law
is troubling and confused, with tensions in the Supreme
Court’s precedents, splits in the circuits, and important
practical questions unanswered. Greater clarity and further
guidance from the Court on how to navigate preemption
doctrine after Franklin would be most welcome.
BAKER, Judge, concurring:
I write separately to express my reservations about the
California Restaurant Association’s standing and to explain
my view of why the City of Berkeley’s Ordinance No. 7,672-
N.S. (“Ordinance”) invades the core area preempted by the
Energy Policy and Conservation Act (“EPCA”), 42 U.S.C.
§ 6297(c).
I
To have associational standing, an organization must
establish that:
(a) its members would otherwise have
standing to sue in their own right;
(b) the interests it seeks to protect are
germane to the organization’s purpose; and
(c) neither the claim asserted nor the relief
requested requires the participation of
individual members in the lawsuit.
Assoc. Gen. Contractors of Am., San Diego Chapter, Inc. v.
Cal. Dep’t of Transp., 713 F.3d 1187, 1194 (9th Cir. 2013)
(“AGC”). The second and third elements of this test are not
in dispute here.
CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 39
As to the first element, an organization must establish
that “a member suffers an injury-in-fact that is traceable to
the defendant and likely to be redressed by a favorable
decision.” Id. (citing Braunstein v. Ariz. Dep’t of Transp.,
683 F.3d 1177, 1184 (9th Cir. 2012)). To do so, the
organization must make “specific allegations establishing
that at least one identified member had suffered or would
suffer harm.” Id. (emphasis by the AGC court and quoting
Summers v. Earth Island Inst., 555 U.S. 488, 498 (2009)).
This “requirement of naming the affected members has
never been dispensed with in light of statistical
probabilities.” Id. (quoting Summers, 555 U.S. at 498–99).1
Thus, when an organizational plaintiff asserting
associational standing failed at summary judgment to
“identify any affected members by name” or “submit[ ]
declarations by any of its members attesting to harm they
have suffered or will suffer” from the challenged policy, we
held that the organization could not rely on “the general
allegations in its complaint asserting that its members would
suffer harm” and dismissed the appeal for lack of standing.
AGC, 713 F.3d at 1194–95.2
Here, the standing allegations in the California
Restaurant Association’s complaint identify no individual
member injured by the challenged Berkeley Ordinance:
The CRA’s members include both restaurant
owners and chefs. It has members that do
1
The only exception to this rule is “where all the members of the
organization are affected by the challenged activity.” Summers, 555 U.S.
at 499 (emphasis in original).
2
In Summers, the organizational plaintiff failed to identify any injured
members at trial. See 555 U.S. at 500.
40 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY
business in Berkeley, California, or who seek
to do business in Berkeley, whose interests
will be directly affected by this Ordinance.
The CRA has one or more members who are
interested in opening a new restaurant or in
relocating a restaurant to a new building in
Berkeley after January 1, 2020, but who
cannot do so because of the Ordinance’s ban
on natural gas. One or more members would
seek to open or relocate a restaurant in a new
building in Berkeley but for the ban on
natural gas. . . .
Under Summers and our decision in AGC, the Association’s
failure to identify any specific member injured by the
Ordinance could be fatal to its standing. See Summers, 555
U.S. at 499 (“In part because of the difficulty of verifying
the facts upon which such probabilistic standing depends,
the Court has required plaintiffs claiming an organizational
standing to identify members who have suffered the requisite
harm . . . .”) (emphasis added).3
But AGC is not our last word on Summers. More
recently, in National Council of La Raza v. Cegavske—as
here, on appeal from dismissal at the pleading stage—we
rejected the argument “that Summers, an environmental case
3
Relying on circuit precedent, Natural Resources Defense Council v.
EPA, 735 F.3d 873 (9th Cir. 2013), the panel correctly holds that the
Association’s allegations sufficiently allege a “credible threat” of a
“probabilistic harm” for standing purposes at the pleading stage. Opinion
at 12. In that case, which came to us on a petition for review of agency
action, the organizational petitioner identified some of its injured
members by attaching their declarations to its brief. See, e.g., No. 12-
70268, Dkt. No. 18-3.
CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 41
brought under the National Environmental Policy Act,
stands for the proposition that an injured member of an
organization must always be specifically identified in order
to establish Article III standing for the organization.” 800
F.3d 1032, 1041 (9th Cir. 2015). Instead, we stated that an
organization asserting associational standing need not
identify an injured member “[w]here it is relatively clear,
rather than merely speculative, that one or more members
have been or will be adversely affected by a defendant’s
action, and where the defendant need not know the identity
of a particular member to understand and respond to an
organization’s claim of injury. . . .” Id.
I think it is “relatively clear” that at least one of the
Association’s members will be harmed by the challenged
Ordinance, and the City doesn’t need to know the identity of
that member to understand and respond to the Association’s
complaint at the pleading stage. Thus, under Cegavske—
which is in tension with Summers and our decision in AGC—
the Association’s failure to identify in its complaint any
member injured by the Ordinance does not defeat its
standing.
And quite apart from what we said in Cegavske, it’s
unclear whether the requirement that an organizational
plaintiff specifically identify injured members even applies
at the pleading stage. As standing is an “indispensable part
of the plaintiff’s case,” Lujan v. Defs. of Wildlife, 504 U.S.
555, 561 (1992), it “must be supported in the same way as
any other matter on which the plaintiff bears the burden of
proof, i.e., with the manner and degree of evidence required
at the successive stages of the litigation.” Id.
At the pleading stage, an organizational plaintiff need
only assert “general factual allegations of injury [to its
42 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY
members] resulting from the defendant’s conduct . . ., for on
a motion to dismiss [a court] presume[s] that general
allegations embrace those specific facts that are necessary
to support the claim.” Id. (cleaned up and emphasis added).
Here, because we presume that they are true, under Lujan the
complaint’s general factual allegations of injury to the
Association’s members arguably suffice even though those
allegations identify no injured member.4
But since Lujan, in Ashcroft v. Iqbal, 556 U.S. 662
(2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), the Court has “moved us away from a system of pure
notice pleading.” In re Century Aluminum Co. Sec. Litig.,
729 F.3d 1104, 1107 (9th Cir. 2013) (citing 5 Wright &
Miller, Federal Practice and Procedure § 1216, at 71 (2012
supp.)). “In addition to providing fair notice,” id., a
complaint “must allege ‘factual content that allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged,’ ” id. (quoting Iqbal, 556 U.S. at
678). As to jurisdictional allegations, Iqbal and Twombly
require that “the plaintiff must allege sufficient facts that,
taken as true, ‘demonstrat[e] each element’ of Article III
standing.” Jones v. L.A. Cent. Plaza LLC, 74 F.4th 1053,
1057 (9th Cir. 2023) (brackets in original) (quoting Spokeo,
4
AGC appears to imply as much. See 713 F.3d at 1195 (distinguishing
Northeastern Fla. Chptr. of Assoc. Gen. Contractors of Am. v. City of
Jacksonville, 508 U.S. 656, 668–69 (2013), because it involved a verified
complaint’s general allegations of injury to an organization’s members
that “had to [be] accept[ed] . . . as true” at summary judgment because
they were unchallenged, whereas AGC involved an unverified
complaint’s general allegations of injury disputed at summary judgment)
(emphasis added). Here, even though the Association’s general
allegations of injury are disputed, we must accept them as true because
we are at the pleading stage.
CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 43
Inc. v. Robins, 578 U.S. 330, 338 (2016)); see also id. at 1056
n.1 (observing that circuit precedent holding that Iqbal does
not apply in the Federal Rule of Civil Procedure 12(b)(1)
context is no longer viable after Spokeo). In the wake of
Spokeo, the continuing vitality of Cegavske is an open
question.
Although whether an organizational plaintiff asserting
associational standing need specifically identify an injured
member at the pleading stage is unsettled and at the center
of a circuit split,5 no such uncertainty exists at summary
5
Compare Draper v. Healey, 827 F.3d 1, 3 (1st Cir. 2016) (holding that
an organizational plaintiff must name at least one injured member in its
complaint); N.J. Physicians, Inc. v. President of U.S., 653 F.3d 234, 241
(3d Cir. 2011) (same); and S. Walk at Broadlands Homeowner’s Ass’n,
Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 184–85 (4th Cir.
2013) (same), with Cegavske, 800 F.3d at 1041, and Bldg. & Constr.
Trades Council of Buffalo, N.Y. & Vicinity v. Downtown Dev., Inc., 448
F.3d 138, 145 (2d Cir. 2006) (stating, pre-Summers, that “the defendants
cite to no authority—nor are we aware of any—that supports the
proposition that an association must ‘name names’ in a complaint in
order properly to allege injury in fact to its members”). Cf. Prairie Rivers
Network v. Dynegy Midwest Generation, LLC, 2 F.4th 1002, 1010, 1011
(7th Cir. 2021) (holding that an organizational plaintiff failed to show
associational standing at the pleading stage when it failed “to allege facts
sufficient to show that at least one of its members could sue in their own
right,” but reserving the question whether circuit precedent relieving
such a plaintiff of the obligation to expressly identify an injured member
“survives Summers”).
If the Supreme Court ultimately resolves this conflict by holding that
an organizational plaintiff alleging associational standing must identify
at least one injured member in its complaint, such a plaintiff should
ordinarily be given an opportunity to cure any failure to do so, because
any such failure merely involves an incomplete “statement[ ] about
jurisdiction that actually exists”—assuming there is such a member.
44 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY
judgment. There, an organizational plaintiff “must set forth
by affidavit or other evidence specific facts” substantiating
the allegations of injury to its members. Lujan, 504 U.S. at
561 (cleaned up). “And at the final stage, those facts (if
controverted) must be supported adequately by the evidence
adduced at trial.” Id. (cleaned up). Thus, under Lujan,
Summers, and our decision in AGC, at summary judgment or
trial an organizational plaintiff is undoubtedly obligated to
identify one or more of its injured members—among other
“specific facts” detailing the nature of their asserted injury.6
Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 831 (1989); see
28 U.S.C. § 1653 (“Defective allegations of jurisdiction may be
amended, upon terms, in the trial or appellate courts.”). Under this
statute, a “district court . . . should . . . allow[ ] amendment if it [is] made
aware of the pleading defect.” Snell v. Cleveland, Inc., 316 F.3d 822, 828
n.6 (9th Cir. 2002). A complaint with a jurisdictional pleading defect
“should not [be] dismissed without leave to amend . . . unless it is clear,
upon de novo review, that the complaint could not be saved by
amendment.” Id. And even on appeal from dismissal at the pleading
stage, such amendment should ordinarily be allowed. See id. at 828
(noting that this circuit “permit[s] amendment of complaints at the
appellate level in order to correct defective jurisdictional allegations”).
6
If an organizational plaintiff asserting associational standing neglects
to identify an injured member at summary judgment or trial, it thereby
fails to carry an element of its “burden of proof.” Lujan, 504 U.S. at 561.
In that instance, 28 U.S.C. § 1653 appears to have no application,
because it “speaks of amending ‘allegations of jurisdiction,’ ” Newman-
Green, 490 U.S. at 831 (emphasis in original), not curing wholesale
failures of proof. Cf. Summers, 555 U.S. at 500 (holding that
supplementation of the district court record with affidavits from the
organization’s members to establish standing was not permitted “in the
circumstances here: after the trial is over, judgment has been entered,
and a notice of appeal has been filed”) (emphasis in original).
CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 45
II
Justice Scalia famously noted—in the context of the
Employee Retirement Income Security Act of 1974
(ERISA)’s express preemption clause,7 which employs
broad “related to” language materially similar to EPCA’s,8
see Lamar, Archer & Cofrin, LLP v. Appling, 138 S. Ct.
1752, 1759 (2018) (equating “ ‘[c]oncerning’ with ‘relating
to’ ”); Morales v. Trans World Airlines, Inc., 504 U.S. 374,
383 (1992) (defining “related to” as, among others, “to have
bearing or concern”) (quoting Black’s Law Dictionary 1158
(5th ed. 1979))—that “applying the ‘relate to’ provision
according to its terms was a project doomed to failure, since,
as many a curbstone philosopher has observed, everything is
related to everything else.” Cal. Div. of Labor Standards
Enf’t v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 335
(1997) (Scalia, J., concurring). Thus, the breadth of EPCA’s
preemption provision, like ERISA’s, “does not mean the sky
is the limit.” Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S.
251, 260 (2013). For that reason, EPCA preemption is
unlikely to reach a host of state and local regulations that
incidentally impact “the quantity of [natural gas] directly
consumed by a [covered] product at point of use.” 42 U.S.C.
§ 6291(4).
7
ERISA “supersede[s] any and all State laws insofar as they may now
or hereafter relate to any employee benefit plan described in section
1003(a) of this title.” 29 U.S.C. § 1144(a).
8
EPCA’s preemption clause provides that after a federal energy
conservation standard applies to a covered product, “no State regulation
concerning the energy efficiency, energy use, or water use of such
covered product shall be effective with respect to such product.” 42
U.S.C. § 6297(c).
46 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY
For example, nothing in EPCA’s text or structure
suggests any concern with state and local taxes that might
reduce consumption of natural gas. Thus, at least as far as
EPCA is concerned, states and local governments are likely
free to impose carbon taxes designed to discourage such
consumption. Nor is there any indication from its text or
structure that EPCA speaks to the distribution of natural gas.
If a state or local government terminates existing gas utility
service or declines to extend such service, EPCA likely has
no application.9
But the challenged Ordinance does not implicate a
utility’s distribution of natural gas. Instead, like EPCA, it
assumes that gas service is otherwise available at premises
with products covered by the federal statute. See BMC
§ 12.80.030(E) (defining prohibited “natural gas
infrastructure” as “fuel gas piping, other than service pipe,
in or in connection with a building, structure or within the
property lines of premises, extending from the point of
delivery at the gas meter as specified in the California
Mechanical Code and Plumbing Code”) (emphasis added).
The Pacific Gas & Electric Company (PG&E)—the
utility serving Berkeley—explains in a document cited by
9
For the same reason, EPCA’s preemption provision—which also
encompasses state and local regulations “concerning the . . . [electricity]
use” and “water use” of “covered product[s],” 42 U.S.C. § 6297(c)—
almost certainly does not affect state or local measures curtailing the
distribution of water due to droughts or electricity due to wildfire risk or
grid limitations. See Brief of Amici Curiae Energy and Environmental
Law Professors in Support of Defendant-Appellee City of Berkeley
(Amici Law Professors), at 14, 17 (describing state and local authority to
limit electricity and water distribution for various public purposes). As I
read it, EPCA assumes that energy service or water is otherwise available
to the premises at which a covered product is used.
CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 47
the Amici Law Professors that “the service delivery point for
the gas supply is the point where PG&E’s facilities connect
to the applicant’s house pipe (i.e., houseline).” Pacific Gas
& Elec. Co., Electric & Gas Service Requirements (TD-
7001M) 2022–2023, at 2-50 (2022) (“PG&E Manual”).10
The following diagram “illustrates a typical service delivery
point,” id.:
10
https://www.pge.com/pge_global/common/pdfs/services/building-
and-renovation/greenbook-manual-online/greenbook_manual_full.pdf.
48 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY
Id. at 2-6. And to zero in even further, as shown in the side
view of a typical meter below, the service delivery point is
just after the meter:
Id. at 2-51; see also id. at 2-49 (“The [customer’s] houseline
at the service delivery point typically is located after the
PG&E service tee for residential services.”).
PG&E further explains that it “is responsible for
maintaining the system that delivers natural gas, up to and
including the gas meter.” Pacific Gas & Elec. Co., Natural
Gas Customers: Important gas safety information regarding
your pipelines at 1 (2021).11 PG&E’s customers, on the other
hand, are
responsible for maintaining the [customer]-
installed and owned gas service piping,
valves, automatic shut-off devices (e.g.,
11
https://www.pge.com/pge_global/common/pdfs/your-account/your-
bill/understand-your-bill/bill-inserts/2021/0821-New-Gas-Customer.pdf.
CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 49
earthquake valves), or other piping
components on any premises or in any
building. These [customer]-owned
components must be installed downstream of
(i.e., after) the gas supply service delivery
point.
PG&E Manual at 2-49. In short, the customer-owned piping
constitutes everything downstream of the service tee fitting
on the utility’s gas meter.
The Berkeley Ordinance—a building code—prohibits
the customer-owned piping downstream of the meter, and
scrupulously avoids touching on infrastructure owned by the
utility, including the meter or the service pipe connecting the
meter to the gas distribution main. And although EPCA has
little, if anything, to say about a state or local government’s
regulation of a utility’s distribution of natural gas to
customers, it has everything to say about “State or local
building code[s] for new construction concerning the . . .
energy use of . . . covered product[s] . . . .” 42 U.S.C.
§ 6297(f)(3). “[R]egulation[s] or other requirement[s]” in
such codes are preempted unless they “compl[y] with all of”
various specified conditions. See id. § 6297(f)(3)(A)–(G).
And it’s undisputed the Ordinance does not do so.
Thus, far from having only “a tenuous, remote, or
peripheral connection,” N.Y. State Conf. of Blue Cross &
Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 661
(1995), to the subject matter preempted by EPCA, the
Berkeley Ordinance cuts to the heart of what Congress
sought to prevent—state and local manipulation of building
codes for new construction to regulate the natural gas
consumption of covered products when gas service is
otherwise available to premises where such products are
50 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY
used. And as the panel explains, because EPCA would
unquestionably preempt a building code that prohibited the
attachment of covered appliances to the owner’s piping that
receives gas at the utility’s service delivery point, it
necessarily also preempts a building code that instead bans
that piping to evade preemption. I therefore join the panel
opinion in full.
FRIEDLAND, Circuit Judge, joined by MURGUIA, Chief
Judge, and WARDLAW, GOULD, KOH, SUNG,
SANCHEZ, and MENDOZA, Circuit Judges, except as to
the first sentence and accompanying footnote, dissenting
from the denial of rehearing en banc:
In nearly a decade on the bench, I have never previously
written or joined a dissent from a denial of rehearing en
banc.1 I feel compelled to do so now to urge any future court
that interprets the Energy Policy and Conservation Act not
to repeat the panel opinion’s mistakes. The opinion
misinterprets the statute’s key terms to have colloquial
meanings instead of the technical meanings required by
established canons of statutory interpretation. It thereby
erroneously holds that Berkeley’s ordinance is preempted.
1
I have generally agreed with Judge Berzon’s article on this issue that
dissents from the denial of rehearing en banc do not improve the court’s
decision-making process. Marsha S. Berzon, Dissent, “Dissentals,” and
Decision Making, 100 Cal. L. Rev. 1479, 1491–92 (2012). But, as Judge
Berzon explained, sometimes “dissents from the denial of rehearing en
banc [can] make a useful point not made by the panel majority opinion,
or any separate opinion,” and such dissents “may aid other circuits
considering the same or similar issues.” Id. at 1492 n.57.
CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 51
Those errors of statutory interpretation have important
consequences. The panel opinion needlessly blocks
Berkeley’s effort to combat climate change, along with the
equivalent laws passed by other local governments. Our
system of federalism requires much more respect for state
and local autonomy. “Deference to state lawmaking . . .
permits innovation and experimentation [and] enables
greater citizen involvement in democratic processes.” Ariz.
State Legislature v. Ariz. Indep. Redistricting Comm’n, 576
U.S. 787, 817 (2015) (quotation marks omitted) (quoting
Bond v. United States, 564 U.S. 211, 221 (2011)). That
deference is especially needed here. Climate change is one
of the most pressing problems facing society today, and we
should not stifle local government attempts at solutions
based on a clear misinterpretation of an inapplicable statute.
I.
The history of the relevant provisions of the Energy
Policy and Conservation Act (“EPCA”)2 shows that, from
the beginning, they were technical provisions with a narrow
scope of preemption. When Congress first enacted EPCA in
1975, it required manufacturers to label their appliances with
measures of energy efficiency and energy use. Air
Conditioning & Refrigeration Inst. v. Energy Res.
Conservation & Dev. Comm’n, 410 F.3d 492, 499 (9th Cir.
2005); H.R. Rep. No. 94-340, at 17 (1975), as reprinted
in 1975 U.S.C.C.A.N. 1762, 1779. The Act also preempted
state regulations that required the disclosure of other
information related to energy consumption. Air
Conditioning, 410 F.3d at 499 (citing Energy Policy and
2
I use “EPCA” to refer to the Energy Policy and Conservation Act of
1975 and its subsequent amendments.
52 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY
Conservation Act, Pub. L. No. 94-163, § 327, 89 Stat. 871,
926–27 (1975)).
A few years later, Congress took EPCA a step further,
establishing a “nationwide conservation program for
[consumer] appliances.” Id. The program required the
Department of Energy (“DOE”) to “prescribe minimum
energy efficiency standards” for “covered products” such as
refrigerators and dishwashers. Id.; Nat. Res. Def. Council,
Inc. v. Herrington, 768 F.2d 1355, 1362 n.1 (D.C. Cir. 1985).
DOE largely failed to comply with this instruction, however,
and it granted waivers that allowed states to establish their
own standards. Air Conditioning, 410 F.3d at 499. This
practice resulted in a “growing patchwork of differing State
regulations” that complicated the “design, production, and
marketing” of appliances. Id. at 500 (quoting S. Rep. No.
100-6, at 4 (1987), reprinted in 1987 U.S.C.C.A.N. 52, 54–
55).
Frustrated by the lack of uniformity, manufacturer trade
associations negotiated with the Natural Resources Defense
Council to establish uniform national standards that would
ease the burden on manufacturers while promoting energy
conservation. Id. at 499–500; S. Rep. No. 100-6, at 4. In
1987, Congress amended EPCA to include those negotiated
appliance standards. Air Conditioning, 410 F.3d at 499–500;
National Appliance Energy Conservation Act of 1987, Pub.
L. No. 100-12 § 5, 101 Stat. 103, 107–08 (1987) (codified as
amended at 42 U.S.C. § 6295(a)–(b)). Congress
simultaneously added the preemption provision at issue in
this case to “counteract the systems of separate state
appliance standards.” Air Conditioning, 410 F.3d at 500;
Pub L. No. 100-12 § 327(c), 101 Stat. at 118. The provision
establishes that, once a DOE standard for a covered product
takes effect, “no State regulation concerning the energy
CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 53
efficiency, energy use, or water use of such covered product
shall be effective with respect to such product.”3 42 U.S.C.
§ 6297(c).
II.
As one would expect from that history, the text of
EPCA’s preemption provision guarantees uniform appliance
efficiency standards. It does not create a consumer right to
use any covered appliance. The panel opinion concludes that
it does so by ignoring the way EPCA’s key terms are used in
the context of the statute and by giving technical terms
improper colloquial meanings.
It is a firmly established canon of textual interpretation
that a statute must be read as a whole, and its words must be
considered in context with a view towards the “logical
relation” of the statute’s parts. Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 167
(2012); see also, e.g., Davis v. Mich. Dep’t of Treasury, 489
U.S. 803, 809 (1989); King v. Burwell, 576 U.S. 473, 486
(2015); Sw. Airlines Co. v. Saxon, 596 U.S. 450, 455 (2022).
Moreover, EPCA is a technical statute, so another firmly
established interpretive canon requires considering the
specialized meanings of key terms, rather than looking
solely to colloquial usage. When interpreting a legal text,
“[w]ords are to be understood in their ordinary, everyday
meanings—unless the context indicates that they bear a
technical sense,” and “[w]here the text is addressing a
scientific or technical subject, a specialized meaning is to be
expected.” Scalia & Garner, Reading Law 69, 73 (emphasis
added); see also, e.g., Van Buren v. United States, 141 S. Ct.
3
There are some exceptions to this provision that are not relevant here.
See § 6297(c).
54 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY
1648, 1658 n.7 (2021) (citing Scalia & Garner, Reading Law,
at 73); Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 9 F.4th
1167, 1173 (9th Cir. 2021) (same); Marquez-Reyes v.
Garland, 36 F.4th 1195, 1202 (9th Cir. 2022) (same).
A.
The scope of EPCA’s preemption provision depends on
the meaning of the term “energy use,” because the provision
preempts state laws that concern the “energy use . . . of [a]
covered product.” § 6297(c).4 EPCA defines “energy use”
as “the quantity of energy directly consumed by a consumer
product at point of use, determined in accordance with test
procedures under section 6293 of this title.” § 6291(4).
Such test procedures measure energy use “during a
representative average use cycle or period of use.”
§ 6293(b)(3). Accordingly, looking at the relevant
provisions together, the “energy use” of an appliance is the
typical amount of energy consumed per use cycle or in a
given amount of time while the appliance is in operation. It
is a fixed number that measures the efficiency of an
appliance as manufactured.
I refer to “energy use” as a measure of efficiency, but I
acknowledge that “energy efficiency” has a separate
definition under EPCA. EPCA defines “energy efficiency”
as the “ratio of the useful output of services from a consumer
product to the energy use of such product, determined in
accordance with test procedures under section 6293 of this
title.” § 6291(5). “Energy efficiency” and “energy use” are
both technical terms that refer to different aspects of an
appliance’s efficiency: “Energy use” standards prevent
4
Unless otherwise indicated, all section (§) citations refer to Title 42 of
the U.S. Code.
CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 55
appliances from using too much energy overall, while
“energy efficiency” standards prevent appliances from using
too much energy relative to their useful output.5 Depending
on the product, one or the other measure may be more
appropriate, so EPCA uses “energy efficiency” standards for
some products while using “energy use” standards for
others. For instance, for refrigerators, which are used more
or less constantly to maintain a consistent temperature,
efficiency is measured through energy consumed over
time—i.e., “energy use.” See § 6295(b)(1). For room air
conditioners, which create a change in temperature only
some of the time, efficiency is measured through the cooling
capacity (“the useful output of services”) divided by the
amount of energy consumed—i.e., “energy efficiency.” See
§ 6295(c)(1); Test Procedures for Room Air Conditioners,
42 Fed. Reg. 27,896, 27,899 (June 1, 1977).
In other words, both “energy use” and “energy
efficiency” are performance standards. Indeed, EPCA
defines the term “energy conservation standard” to mean a
“performance standard which prescribes a minimum level of
energy efficiency or a maximum quantity of energy use . . .
for a covered product, determined in accordance with test
procedures prescribed under section 6293 of this title.”
5
To show how these measures would work in a concrete example,
assuming the “period of use” is one hour, they could be calculated for a
given appliance in the following way:
Energy Use = amount of energy consumed per hour
Energy Efficiency = “useful output of services” in that hour ÷
that Energy Use.
56 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY
§ 6291(6)(A).6 As a performance standard, “energy use” is
a fixed measure that results from the manufacturing and
design of the product. Although this measure aims to
approximate the typical energy use of an appliance during
operation, the measure does not depend on any given
consumer’s actual use. That means a gas stove of a
particular model that sits uninstalled and unused has the
same “energy use” under EPCA as one that is installed and
running. Applying that understanding to the facts here,
Berkeley’s ordinance affects the use of natural gas products
in a colloquial sense, but it does not affect the “energy
use . . . of [a] covered product” within the meaning of the
preemption provision.
Looking at the statute as a whole, this interpretation is
the only one that makes sense. For instance, EPCA
establishes labeling requirements to inform consumers about
an appliance’s energy use, helping consumers make
informed purchases. See, e.g., § 6294(a)(2)(I), (a)(3). There
would be no way to label an appliance with information
about its “energy use” if “energy use” turned on a particular
consumer’s use of the appliance after purchase. The
manufacturer creating the label obviously cannot predict
whether a consumer will leave the appliance sitting
uninstalled in her garage. The fact that some consumer
might do so does not mean that the appliance’s label should
list “zero” as its energy use.
EPCA also permits DOE to require that manufacturers
“submit information or reports . . . with respect to” the
6
The definition of “energy conservation standard” also includes “water
use” standards. § 6291(6)(A). The term “energy conservation standard”
is secondarily defined as “a design requirement for the products specified
in . . . section 6292(a) of this title.” § 6291(6)(B).
CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 57
“energy use” of covered products to demonstrate their
compliance with EPCA’s standards and to facilitate DOE’s
administration of the statute. § 6296(d)(1). This provision
does not require manufacturers to somehow monitor
consumers’ use of appliances after installation. The
provision is coherent only if “energy use” is a function of an
appliance’s manufacturing and design specifications, such
that a manufacturer can ascertain the appliance’s “energy
use” prior to sale.
B.
The fact that EPCA defines “energy use” as the quantity
of energy consumed at the “point of use” does not change
this analysis. § 6291(4). “Point of use” has a well-
established technical meaning that must be applied here: To
measure energy at the “point of use,” one measures only “site
energy,” the energy that is directly consumed by the
appliance from the pipe or outlet.7 By contrast, “source
energy” includes all the energy measured at the point of use
(the “site energy”) plus the energy required to produce and
deliver the energy to that site.8 For instance, energy as
measured at the “point of use” would include only the natural
gas needed to operate a gas stove, whereas “source energy”
would also include the energy consumed in extracting that
7
David Santana Ortiz & Mark Allen Bernstein, RAND, Measures of
residential energy consumption and their relationships to DOE policy
xiii–xiv, 6–7 (1999).
8
Id.; see also 144 Cong. Rec. S12706–07 (Oct. 20, 1998) (letter from
senators explaining that DOE currently uses a “point of use” standard
and that when EPCA was enacted in 1975, Congress and the President
“wisely rejected” an approach to measuring energy use that would
account for “exogenous factors like ‘total fuel cycle’ costs, emissions
and externalities”).
58 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY
natural gas, removing its impurities, and transporting it to the
location of the stove.9
Congress included the term “point of use” in the
definition of “energy use” not to protect “the end-user’s
ability to use installed covered products at their intended
final destinations,” as the panel opinion asserts, but instead
to give a technical instruction to DOE and manufacturers.
Congress was relying on the technical meaning of the term
to convey that the “energy use” of an appliance under EPCA
does not include indirect energy consumption upstream in
the supply chain. That instruction was needed because other
regulators at the time did consider such indirect energy
consumption (“source energy”) when adopting energy
standards. See Energy Resources Conservation and
Development Commission, Staff Report, Energy
Conservation Standards for Nonresidential Buildings 5
(May 27, 1977) (report from California’s Energy Resources
Conservation and Development Commission explaining that
when setting certain standards, the Commission was
required by a state statute to “tak[e] into account power plant
and distribution losses,” not just “energy delivered to the
building boundary”).
Industry and regulatory sources consistently use the term
“point of use” in this technical sense, and many expressly
recognize that EPCA does so as well. The following list
illustrates a few examples:
• A National Academy of Sciences study,
commissioned by Congress, explained
that “site (point-of-use)” measures
account for only the energy consumed at
9
See Ortiz & Bernstein, supra note 7, at 6.
CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 59
the site “based on specified test
procedures,” while “source (full-fuel-
cycle) measures” include site energy plus
the energy consumed in the “extraction,
processing, and transport” of fuels to the
site. The study further explained as to
EPCA that “[c]urrent DOE standards for
the energy consumed by operating
individual appliances call for
measurement at the site (point of use) of
the appliance.”10
• In a notice of proposed policy, DOE
explained that, consistent with the
National Academy of Sciences study, it
“uses point-of-use measures of energy
consumption” in administering EPCA. It
contrasted “point-of-use” measures with
another measure that accounted for
“energy consumed on-site, plus energy
losses that occur in the generation,
transmission, and distribution of
electricity.”11
10
National Research Council, Review of Site (Point-of-Use) and Full-
Fuel-Cycle Measurement Approaches to DOE/EERE Building
Appliance Energy-Efficiency Standards: Letter Report 1, 3–4, 6 (2009);
Energy Policy Act of 2005, Pub. L. No. 109-58, § 1802, 119 Stat. 594,
1123 (2005) (commissioning the study).
11
Energy Conservation Program for Consumer Products and Certain
Commercial and Industrial Equipment: Public Meeting and Availability
of Statement of Policy for Adopting Full-Fuel-Cycle Analyses Into
Energy Conservation Standards Program, 75 Fed. Reg. 51,423, 51,424
(Aug. 20, 2010).
60 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY
• A study prepared for the American Gas
Foundation stated that the definition of
“energy use” under EPCA refers to site
energy, rather than source energy (which
the study referred to as “real energy”).
The study continued, “[F]ederal energy
efficiency policies are based upon
improving energy efficiency as measured
at the point of usage rather than
considering the full fuel cycle of energy
and natural resources.”12
• In an advance notice of proposed
rulemaking, DOE explained that “EPCA
and [the National Appliance Energy
Conservation Act] do not permit the
regulation of source energy” because
those statutes “specify that efficiency
must be based on the energy consumption
at the point of use.”13
• In a notice of proposed rulemaking, the
Federal Energy Administration (“FEA”)
stated that, in considering the impact of
potential energy conservation measures
12
American Gas Foundation, Public Policy and Real Energy Efficiency
i, v, 7, 14 (2005); see also id. at 50 (stating that the National Appliance
Energy Conservation Act, which amended EPCA to establish efficiency
standards for appliances, “use[s] site energy as the basis for qualifying
appliances”).
13
Energy Conservation Program for Consumer Products: Energy
Conservation Standards for Residential Furnaces and Boilers, 69 Fed.
Reg. 45,420, 45,426 (July 29, 2004) (citing § 6291(4) (the definition of
energy use)).
CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 61
on petroleum and natural gas
consumption at specific buildings and
industrial sites, it would look only to
energy consumption “at the point of use
on site,” rejecting an approach that would
also look to the fuel needed to generate
electricity at the power plant level.14
• In a notice of a final rule, the FEA
contrasted a technical measure that
represented the energy content of a unit of
electricity at “the point of use” with
another technical measure that took into
account the energy lost in the process of
generating that electricity and
transmitting it to the point of use.15
Textualist principles require us to consider such sources
when interpreting a technical term, rather than interpreting
the term solely based on colloquial meaning. See Scalia &
Garner, Reading Law 69, 73; Corning Glass Works v.
Brennan, 417 U.S. 188, 201 (1974) (“[W]here Congress has
used technical words or terms of art, ‘it [is] proper to explain
them by reference to the art or science to which they [are]
appropriate.’” (quoting Greenleaf v. Goodrich, 101 U.S. 278,
284 (1880))); Van Buren, 141 S. Ct. at 1658 n.7 (explaining
that the Court’s narrow interpretation of the term “access” in
the Computer Fraud and Abuse Act of 1986 “tracks the
specialized meaning of ‘access’ in the computer context”).
14
Energy Audits, 42 Fed. Reg. 20,012, 20,013 (Apr. 15, 1977).
15
Federal Energy Administration, 42 Fed. Reg. 33,158, 33,159 (June 29,
1977).
62 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY
These technical sources demonstrate that “point of use”
does not refer to the place where an appliance is used; it
refers to a technical way of measuring energy consumption.
Given this technical meaning, the fact that Berkeley’s
ordinance prevents some consumers from using a natural gas
appliance at what we might colloquially refer to as the “point
of use” does not affect the “energy use” of those appliances
within the meaning of EPCA.
C.
The preemption provision’s inclusion of the modifier
“concerning” does not bring the ordinance within the
provision’s scope. See § 6297(c) (“[N]o State regulation
concerning the energy efficiency [or] energy use . . . of [a]
covered product shall be effective.” (emphasis added)). To
be sure, the word “concerning” expands the scope of the
preemption provision beyond regulations that directly set
energy efficiency or energy use standards. The statute as a
whole makes clear that indirect regulations may be
preempted if they aim to require consumers to use products
with higher efficiency standards than those prescribed by
DOE and may ultimately cause manufacturers to change the
design of their products to meet those higher standards. For
instance, EPCA contemplates preempting building codes
that set building-wide energy efficiency standards that can
only be met through the use of hyper-efficient appliances.
See § 6297(f). Because the terms “energy use” and “energy
efficiency” are product-specific, a preemption provision
without the word “concerning” might not preempt building
codes that set standards by, for example, capping overall
energy consumption per apartment or per building.
The Supreme Court has said that “concerning” means the
same thing as “relating to,” Lamar, Archer & Cofrin, LLP v.
CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 63
Appling, 138 S. Ct. 1752, 1759 (2018), and it has recently
counseled against reading such words too broadly, Dubin v.
United States, 599 U.S. 110, 119 (2023). The Court
explained that “[i]f ‘relate to’ were taken to extend to the
furthest stretch of its indeterminacy, then for all practical
purposes there would be no limits, as really, universally,
relations stop nowhere.” Id. (cleaned up) (quoting N.Y. State
Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins.
Co., 514 U.S. 645, 655 (1995)). The Court has similarly
cautioned against “‘uncritical literalism’ that would make
pre-emption turn on ‘infinite connections.’” Egelhoff v.
Egelhoff, 532 U.S. 141, 147 (2001) (quoting N.Y. State Conf.
of Blue Cross & Blue Shield Plans, 514 U.S. at 656).
Here, “concerning” cannot transform the meaning of
“energy use.” Berkeley’s ordinance obviously concerns
natural gas, and natural gas is a type of energy. But to say
that the ordinance therefore concerns “energy use,” as
defined by EPCA, is to engage in “uncritical literalism.”
Berkeley did not adopt its ordinance to require consumers to
use appliances with higher efficiency standards than those
prescribed by DOE. The ordinance was intended to slow
climate change and reduce public safety hazards and health
risks associated with the combustion of natural gas.
Berkeley Mun. Code § 12.80.010(B) (finding that the
ordinance was necessary to address sea level rise and
increased wildfires caused by climate change), (C) (finding
that the ordinance was necessary to address “asthma and
other health conditions associated with poor indoor and
outdoor air quality [that are] exacerbated by the combustion
of natural gas”). Transitioning from fossil fuels to non-
greenhouse-gas-producing energy sources may not decrease
total energy consumption. Indeed, some gas appliances are
more efficient than electric appliances, so the ordinance may
64 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY
have the indirect effect of increasing energy consumption in
new buildings in some circumstances. See, e.g., 10 C.F.R.
§ 430.32(e)(1)(ii) (setting a more stringent standard for gas
furnaces than for electric furnaces). The ordinance also
gives manufacturers no reason to change the design of their
natural gas products to meet standards higher than those
prescribed by DOE. It simply directs consumers to one set
of products with one set of federal efficiency standards
(electric appliances) over another set of products with
different federal efficiency standards (gas appliances). See,
e.g., § 6295(e)(1)(A), (C) (setting one standard for gas water
heaters and another for electric water heaters).
III.
EPCA’s history, text, and structure all show that the
Berkeley ordinance is not preempted because it does not
affect “energy use” within the meaning of the statute. The
panel opinion makes much of the notion that a state cannot
do indirectly what it could not do directly. But that notion is
beside the point because EPCA would not preempt a direct
prohibition on natural gas appliances enacted for the reasons
Berkeley had here. Even such a direct prohibition would not
affect the “energy use” of any appliance.
Berkeley adopted its ordinance to address an urgent
problem of the highest importance. The panel opinion
unnecessarily strikes down the ordinance by entirely
misinterpreting a narrow preemption provision about
appliance standards. I hope other courts will not repeat the
panel opinion’s mistakes.
I respectfully dissent from the denial of rehearing en
banc.
CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 65
BERZON, Circuit Judge, with whom PAEZ and
FLETCHER, Circuit Judges, join, respecting the denial of
rehearing en banc:
I agree with Judge Friedland’s dissent from the denial of
rehearing en banc, including her explanation as to why this
is the type of case in which dissent from denial of rehearing
en banc is appropriate. See Dissent from Denial of Rehearing
En Banc at 50 n.1.