The Biden administration asked a federal court on Monday to reinstate a Berkeley, California, ordinance that banned gas hookups in new construction after it struck down the regulation in April.
A three-judge panel of the Ninth Circuit unanimously sided in April with the California Restaurant Association (CRA), which sued after Berkeley adopted the ordinance in 2019, ruling that the ban is preempted by the federal Energy Policy and Conservation Act (EPCA). In a brief filed with the court on Monday, the administration argued the decision was “erroneous” and asked for a rehearing.
“This Court should grant rehearing to correct a panel opinion that destabilizes the long-settled understanding shared by the Department, the States, municipalities, and the courts over the allocation of regulatory authority in this area; threatens to preempt broad swaths of State and local health and safety law; and throws a wrench into the federal government’s administration of the Act,” the brief said.
Department of Justice and Department of Energy officials argue in their brief that EPCA enables the government to establish “energy conservation standards” for certain products and “prevents States and localities from attempting to do at their level what the Department of Energy does at the federal level” once there is a standard. It does not, however, preempt “health and safety ordinances” that “indirectly” impact the use of certain products, according to the brief.
The court rejected the government’s interpretation of EPCA, which equated the terms “energy use” and “energy efficiency” with “energy conservation standards,” in its April ruling.
“[W]e presume that Congress means what it says, and we can’t simply reconfigure the statute to fit the Government’s needs,” Judge Patrick Bumatay, a Trump appointee, wrote in his opinion. “Indeed, after Congress has taken pains to define each phrase separately, it would be inappropriate for courts to disregard these nuances and treat the phrases as interchangeable.”
A commissioner at the U.S. Consumer Product Safety Commission (CSPC), Rich Trumka Jr., told Bloomberg the agency was considering a gas stove ban in January. The DOE announced a proposed rule in February that would create energy efficiency standards for new gas stoves.
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