Silicon Valley • New York • Atlanta • Washington, D.C. • Austin Sarah O. Jorgensen
1201 West Peachtree Street, Suite 2300
Atlanta, GA 30309
Direct Dial: (650) 623-1403
[email protected]
July 29, 2024
VIA EMAIL
Dave Aleshire
City Attorney
City of Richmond
450 Civic Center Plaza
Richmond, CA 94804
[email protected]
Re: Impact of Cal. Rest. Ass’n v. City of Berkeley, 89 F.4th 1094 (9th Cir. 2024) on Ordinance No. 15-21 N.S.
Dear Mr. Aleshire:
Our firm has been asked to review the validity and enforceability of City of Richmond’s gas prohibition ordinance (No. 15-21 N.S.) (the “Ordinance”) on behalf of the California Restaurant Association. In the recent decision in California Restaurant Ass’n v. City of Berkeley, 89 F.4th 1094 (9th Cir. Jan. 2, 2024), a case in which our firm represents the Association, the Ninth Circuit held that Berkeley’s similar ordinance was preempted by federal law.
Upon reviewing the Ordinance, we have concluded that it is functionally indistinguishable from Berkeley’s Ordinance and is therefore preempted. It does not appear that the City has taken steps to repeal or suspend enforcement of the Ordinance. We would prefer to resolve this issue informally and amicably and thus are reaching out to see whether further discussion would be helpful in resolving this situation short of an adversarial process.
As set out in Article IX of the Richmond Code of Ordinances, the city prohibits natural gas infrastructure in newly constructed buildings. Richmond Code of Ordinances, Article IX (Health), Chapter 9.64 (Prohibition Of Natural Gas Infrastructure In Newly Constructed Buildings), Sec. 9.64.040 (Prohibited natural gas infrastructure in newly constructed buildings).
The Ordinance is invalid and is not enforceable because it is preempted by federal law.
Binding Ninth Circuit precedent compels that conclusion. In California Restaurant Ass’n, the Ninth Circuit held that the City of Berkeley’s ban on natural gas infrastructure in new buildings was preempted by the federal Energy Policy and Conservation Act (“EPCA”), §§ 6201-6422.
EPCA sets national energy policy, including federal energy conservation standards for residential and commercial appliances. To avoid a patchwork of conflicting state and local regulations, EPCA expressly preempts any state or local regulation “concerning the energy efficiency, energy use, or water use of” a covered appliance. 42 U.S.C. § 6297(c). As the Ninth Circuit explained, EPCA reaches building code provisions and preempts ordinances that, like Berkeley’s, prevent the use of gas by covered appliances; although Berkeley banned gas piping
Dave Aleshire
July 29, 2024
Silicon Valley • New York • Atlanta • Washington, D.C. • Austin instead of gas appliances, a local government cannot do “indirectly what Congress says [it] can’t do directly.” Cal. Rest., 89 F.4th at 1106-07. The City’s Ordinance, like Berkeley’s ban, has the effect of preventing appliances from using gas. And like Berkeley’s, the Ordinance does not qualify for any exception to preemption. In short, the Ordinance is indistinguishable from Berkeley’s ban under the Ninth Circuit’s reasoning and is therefore preempted.
Several other counties and cities have acknowledged this reality and repealed or suspended their gas bans as the law requires. Because continuing to enforce the Ordinance is unlawful, we request that the City Council repeal or suspend enforcement of the Ordinance, make a public announcement of that decision, and direct relevant officials not to apply the Ordinance to building permit applications.
We kindly request a response by August 19, 2024. If it would be helpful, we are happy to meet with you to discuss this matter.
Best regards,
Sarah O. Jorgensen
cc (via em
ail): Richmond City Council
Soheila Bana ([email protected]);
Claudia Jimenez ([email protected]);
Gayle McLaughlin ([email protected]);
Melvin Willis ([email protected]);
Cesar Zepeda ([email protected]);
Doria Robison ([email protected])