Kellogg Hansen Attorney Kylie Chiseul Kim Secures Dismissal of Berkeley Ban on Natural Gas Hookups

April 18, 2023 - The U.S. Court of Appeals for the Ninth Circuit has held that federal law preempts the natural gas ban for new buildings in Berkeley, California, a major victory for energy consumers. See California Rest. Ass’n v. City of Berkeley, 2023 WL 2962921 (9th Cir. Apr. 17, 2023). The ruling has sparked conversation on whether similar restrictions in other parts of the country are still enforceable.

Berkeley is one of more than 50 cities around the United States looking to eliminate natural gas by banning it for household and business needs, such as in restaurants.

Kellogg Hansen attorney Kylie Chiseul Kim played an integral role in securing this decision for the California Restaurant Association. In this precedent-setting ruling, a Ninth Circuit panel unanimously held that Berkeley’s 2019 ban on gas hookups effectively barred all appliances operating with natural gas, which it cannot do because federal energy legislation preempts such local regulation.

Judge Patrick Bumatay wrote for the panel: "By its plain text and structure, the Energy Policy and Conservation Act’s (EPCA) preemption provision encompasses building codes that regulate natural gas use by covered products. And by preventing such appliances from using natural gas, the new Berkeley building code does exactly that.”

This ruling prevents one of the first attempts to ban natural gas use at the local level in violation of national energy policy and ensures the continued availability of various cuisines prepared by means of natural gas.

The California Restaurant Association is also represented by attorneys from Reichman, Jorgensen, Lehman & Feldberg LLP and Weinberg, Wheeler, Hudgins, Gunn & Dial LLC.

Kylie Chiseul Kim