City of Berkeley Files Petition for Rehearing of Circuit Court’s Sweeping and Radical Anti-electrification Ruling

Wednesday, May 31, 2023

City of Berkeley files petition for rehearing of circuit court’s sweeping and radical anti-electrification ruling

Wrong and consequential opinion by three-judge panel threatens to undo much more than Berkeley’s historic electrification ordinance

BERKELEY, CA. – In response to a fundamentally flawed and sweeping opinion from a three-judge panel finding that Berkeley’s groundbreaking ordinance prohibiting natural gas in new buildings is preempted by a decades-old federal statute governing energy appliance efficiency manufacturing standards, Berkeley City Attorney, Farimah Faiz Brown, filed a petition for rehearing en banc today before the United States Court of Appeals for the Ninth Circuit. The petition argues that the opinion should be reconsidered by a larger panel of Ninth Circuit judges and overturned as it (1) conflicts with Supreme Court precedent and the Ninth Circuit’s past decisions, and (2) involves a question of exceptional importance that could invalidate a variety of important state and local regulations protecting health and safety.

One of the members of the Ninth Circuit, Judge O’Scannlain, called into question recent Ninth Circuit opinions that departed from Supreme Court precedent and invoked an overly restrictive interpretation of federal preemption of state and local regulations and laws, suggesting at least one path for rehearing.

Today’s filing follows an April 27 press conference on the steps of Berkeley City Hall led by Berkeley Councilmember Kate Harrison, flanked by Bay Area lawmakers, community members, and public health and environmental advocates. Councilmember Kate Harrison, who authored Berkeley’s ordinance, said “This opinion attempts to overturn centuries of federalist principles empowering local government to legislate in areas not explicitly regulated by the federal government. Until now, nearly every important state or local law aimed at protecting the health and safety of our residents—in areas as wide spread as appliance, food, and fire safety and water quality—have operated harmoniously with the federal government, which regulates certain and distinct aspects in those arenas. The City believes the case must be reheard to protect residents, to defend the ordinance that fueled a climate movement, and to ensure that congressional legislation from the 1970’s is not read overbroadly to limit local health and safety protections that are sorely needed in the face of new evidence.”

If granted, en banc rehearings in the Ninth Circuit include the Chief Judge and ten judges who are randomly drawn. Despite the April opinion, Berkeley’s ordinance remains in effect. The Ninth Circuit’s ruling is not final and the litigation that challenges the ordinance is still developing. No injunction or stay of the ordinance has been issued.