California Restaurant Association Defeats Natural Gas Ban in Berkeley

Pooja S. Nair, Chair of ECJ’s Food, Beverage and Hospitality Department, recently published an article in Modern Restaurant Management titled, "California Restaurant Association Defeats Natural Gas Ban in Berkeley". 

On April 17, 2023, a panel of judges in the Ninth Circuit Court of Appeal held that the City of Berkeley’s regulation prohibiting the installation of natural gas piping within newly constructed buildings was preempted by the federal Energy Policy and Conservation Act (“EPCA”).  The action was brought by the California Restaurant Association (“CRA”).  The case is California Restaurant Association v. City of Berkeley, Case No. 4:19-cv-07668.

Berkeley passed the natural gas ordinance (the “Ordinance”) in July 2019, and it was set to go into effect on January 1, 2020.  The Berkeley ordinance prohibited natural gas infrastructure in newly constructed buildings.  The CRA sued Berkeley in November 2019, claiming that EPCA and state law preempted the Ordinance. The district court dismissed CRA’s preemption claim under Rule 12(b)(6) of the Rules of Civil Procedure. 

A major preliminary issue for the Ninth Circuit panel to decide was whether CRA had standing to bring the claim at all. Berkeley argued that CRA did not have standing because it failed to establish that the Ordinance would imminently harm its members. 

Click here to read Pooja’s full article.

Pooja is a business litigator and problem solver with a focus on the food and beverage sector. She advises food and beverage clients, startups and other businesses on a comprehensive range of issues, including employment, trade secrets, partnership disputes, contract negotiations and intellectual property.