Ninth Circuit Denies Rehearing Petition, Upholds California Restaurant Association’s Victory in Suit Against the City of Berkeley’s Natural Gas Infrastructure Ban


January 4, 2024
Contact: Peter Fenolio ▪

Sacramento, CA –

The U.S. Court of Appeals for the Ninth Circuit denied a petition for rehearing filed by the City of Berkeley in the landmark decision California Restaurant Association v. City of Berkeley, marking a significant victory for the California Restaurant Association. The denial signifies that the panel’s ruling, which found Berkeley’s gas ban to be in violation of federal law, will remain binding for Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

In a precedent-setting decision in April 2023, the Ninth Circuit ruled in favor of the CRA, concluding that Berkeley’s ban on gas piping concerned the energy use of appliances covered by the Energy Policy and Conservation Act (EPCA). In denying a rehearing, the Ninth Circuit affirms its opinion that the City of Berkeley cannot bypass federal preemption by banning the infrastructure necessary to service EPCA covered products.

In addition to denying a rehearing, the Ninth Circuit ordered that no future petitions be entertained in this matter. In response to the decision, the California Restaurant Association released the following statement: “The Ninth Circuit’s resolution of this matter allows restaurants to proceed with plans to establish new locations, nurturing job creation within California communities and feeding the vitality our economy,” said California Restaurant Association President and CEO, Jot Condie. “This marks a significant triumph for chefs and restaurateurs who have consistently pushed the boundaries of culinary innovation, elevating California’s cuisine to a globally recognized culinary genre.”

The CRA was represented in this case by Reichman Jorgensen Lehman & Feldberg LLP (RJLF). In response to this final decision by the Ninth Circuit in this matter, RJLF partner, Sarah O. Jorgensen released the following statement: “This landmark ruling underscores the preeminence of federal law in energy policy matters, setting a powerful precedent for future cases. It reinforces that under EPCA, energy policy is a national imperative, demanding unified regulation across the country. State and local governments have regulatory power, but they must comply with federal law.”



California Restaurant Association: The California Restaurant Association is the premier voice representing the food service industry and is committed to advocating for restaurants on a slate of local, state, and national issues. With over 22,000 members locations throughout the state, the CRA provides its members with zealous policy advocacy which supports a positive business climate for the industry.