1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 CALIFORNIA RESTAURANT ASSOCIATION, Case No. 4:19-cv-07668-YGR

7 Plaintiff, ORDER GRANTING IN PART AND DENYING

IN PART MOTION TO DISMISS

8 vs.

9 CITY OF BERKELEY, Re: Dkt. No. 47 10 Defendant.

11 12 Plaintiff California Restaurant Association (“CRA”) brings this action challenging 13 defendant City of Berkeley’s (“Berkeley”) recently enacted and now in effect ordinance (the 14 “Berkeley Ordinance” or the “Ordinance”) that affects the availability of natural gas in new 15 construction within Berkeley. CRA brings four causes of action against Berkeley: (1) federal 16 preemption by the Energy Policy and Conservation Act (“EPCA”); (2) preemption by California 17 law as a void and unenforceable exercise of police power; (3) preemption by California law as 18 conflicting with California Building Standards Code (“CBSC”); and (4) preemption by California 19 law as conflicting with the California Energy Code (“CEC”). 20 Now before the Court is Berkeley’s motion to dismiss the operative first amended 21 complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and (b)(6). (See Dkt. Nos. 46 22 (first amended complaint), 47 (motion to dismiss).) CRA opposes the motion. (Dkt. No. 52; see 23 also Dkt. No. 58 (reply).) The Court further received an amici curiae brief from: (i) the National 24 Association of Home Builders; (ii) the National Association of Manufacturers; (iii) the Air 25 Conditioning, Heating, and Refrigeration Institute; and (iv) the Hearth, Patio, & Barbecue 26 Association (collectively, the “amici”). (Dkt. No. 66.) The Court heard oral argument on 27 February 2, 2021. (Dkt. No. 70.) For the reasons stated below, the Court GRANTS IN PART AND 1 I. BACKGROUND1 2 A. Factual Background 3 The dispute in this litigation centers on a recent ordinance adopted by Berkeley, referred to 4 by the parties as the “Berkeley Ordinance” or the “Ordinance” (Berkeley Ordinance No. 7,672- 5 N.S.).2 The Court summarizes the allegations from the operative first amended complaint that are 6 relevant to the disposition of the pending motion. The Court further includes in its summaries the 7 documents and materials for which it has taken judicial notice. Thus: 8 CRA: Plaintiff CRA is a nonprofit mutual benefit corporation organized under the laws of 9 California with its principal office in the County of Sacramento, California. As alleged, CRA is 10 an association of members in the restaurant industry, and has a substantial interest in having the 11 laws relating to building standards executed and the duties at issue here enforced. CRA’s 12 members include both restaurant owners and chefs. CRA has members that do business in 13 Berkeley, California, or who seek to do business in Berkeley, and whose interests will be directly 14 affected by this ordinance. Specifically, the CRA has one or more members who are interested in 15

16 1 Berkeley requests the Court to take judicial notice of several related documents. (See Dkt. 17 No. 47-1.) With the exception of Exhibit 1 (the Berkeley Ordinance) and parts of Exhibit 18 (excerpts of the 2019 Building Energy Standards for Residential and Nonresidential Buildings), 18 CRA opposes the request for judicial notice. (Dkt. No. 52-1.) CRA further concedes that Exhibit 1 is properly considered under the doctrine of reference by incorporation, as the first amended 19 complaint references the Ordinance. (Id.) The Court agrees. The Court GRANTS IN PART judicial 20 notice of Exhibits 1, 3, 6, and 8 through 18 to the request for judicial notice but does not take judicial notice of the adjudicative facts that are incorporated therein. See Corrie v. Caterpillar, 21 Inc., 503 F.3d 974, 978 (9th Cir. 2007) (taking judicial notice of guidelines published by the Defense Security Cooperation Agency of the U.S. Department of Defense); Agua Caliente Band of 22 Cahuilla Indians v. Coachella Valley Water Dist., Case No. 13-cv-0883(JGB), 2019 WL 2610965, at *5 (C.D. Cal. Apr. 19, 2019) (taking judicial notice of a decree “for the existence of the 23 document”). With respect to Exhibits 2, 4, 5, and 7, the Court declines takes to take judicial notice 24 of these documents, which are not relevant to the disposition of the pending motion. See Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n.2 (9th Cir. 2006) (“We 25 decline to take judicial notice of the two Staff Reports, as they are not relevant to the resolution of this appeal.”). Finally, the Court declines to consider additional declarations submitted by 26 Berkeley, which are outside the scope of this facial 12(b)(1) motion to dismiss. See infra Sections II, and III.A. 27 1 opening a new restaurant or in relocating a restaurant to a new building in Berkeley after January 2 1, 2020, but who cannot do so because of the Ordinance’s ban on natural gas. In other words, one 3 or more of its members would seek to open or relocate a restaurant in a new building in Berkeley 4 but for the ban on natural gas. As alleged, its members will be irreparably harmed by the Berkeley 5 Ordinance through the loss of the ability to use natural gas appliances in newly constructed 6 buildings. 7 Berkeley: Defendant Berkeley is a California city located within the boundaries of the 8 United States District Court for the Northern District of California. 9 The Ordinance: The Berkeley City Council passed the Berkeley Ordinance on July 23, 10 2019, and was later signed into law by the Berkeley Mayor, Jesse Arreguin, on August 6, 2019. 11 The Berkeley Ordinance amends the Berkeley Municipal Code (“BMC”), adding a new 12 Chapter 12.80 (“Prohibition of Natural Gas Infrastructure in New Buildings”) prohibiting natural 13 gas infrastructure in new buildings effective January 1, 2020. The Ordinance prohibits “Natural 14 Gas Infrastructure” in “Newly Constructed Buildings.” Berkeley Ordinance § 12.80.040.A. 15 Natural Gas Infrastructure is defined as “fuel gas piping, other than service pipe, in or in 16 connection with a building, structure or within the property lines of premises, extending from the 17 point of delivery at the gas meter.” Id. § 12.80.030.E. 18 The Berkeley Ordinance provides that its requirements “shall apply to Use Permit or 19 Zoning Certificate applications submitted on or after the effective date of this Chapter for all 20 Newly Constructed Buildings proposed to be located in whole or in part within the City,” id. § 21 12.80.020.A, and accordingly relies on Berkeley’s general police power as the source of its 22 authority. Significantly, the Ordinance is part of Title 12 of the Berkeley Municipal Code, which 23 concerns “Health and Safety.” This is separate from Title 19, regarding “Buildings and 24 Construction,” which contains Berkeley’s building code and energy code. 25 The Berkeley Ordinance contains two exemptions. The first exemption, in section 26 12.80.040.A.1, provides that “Natural Gas Infrastructure may be permitted in a Newly Constructed 27 Building if the Applicant establishes that it is not physically feasible to construct the building 1 allows for an exemption from the ban on natural gas infrastructure where compliance with the 2 California Energy Code (“CEC”) would be impossible for all-electric construction. Id.3 CRA 3 alleges that this merely represents a “phasing in” of the ban as the CEC models all-electric 4 construction for additional building types – i.e., there is no “exemption” for the types of buildings 5 already covered by the ban. 6 The second exception allows for an exemption from the ban on natural gas infrastructure 7 when it is established that the use of natural gas “serves the public interest.” Id. § 12.80.050.A. 8 This exemption allows for a discretionary determination made by the City’s Zoning Adjustments 9 Board or, in some cases at the staff level, as part of the entitlement process for new construction. 10 Id. § 12.80.020.D. In reviewing requests for a public interest exemption, the Zoning Adjustment 11 Board or City staff must consider (1) “[t]he availability of alternative technologies or systems that 12 do not use natural gas” and (2) “[a]ny other impacts that the decision to allow Natural Gas 13 Infrastructure may have on the health, safety, or welfare of the public.” Id. § 12.80.050.A. 14 With regards to EPCA, CRA alleges that the Berkeley Ordinance’s standards concern the 15 energy efficiency and energy use of appliances covered by the EPCA insofar as the Ordinance 16 requires all appliances in newly constructed buildings to use only electric power and not natural 17 gas. In other words, by cutting off the gas pipeline, the Ordinance makes impossible and therefore 18 effectively prohibits the use of gas appliances. This action, according to CRA, is preempted by 19 the EPCA, which CRA contends has been progressively amended to include binding federal 20 energy efficiency standards. In short, CRA asserts and alleges that the United States Congress, 21 through the EPCA and the subsequent statutes, meant to preempt the entire field of energy use by 22 covered appliances, and replace it with detailed conditions that must be met for such state or local 23 laws to avoid preemption. 24

25 3 Consistent with these provisions to ensure compliance with the CEC, the Berkeley Ordinance expressly disavows any intention to amend the Energy Code or to set standards 26 regulating the use of appliances. Id. § 12.80.020.C. (“This chapter [in the Ordinance] shall in no way be construed as amending California Energy Code requirements under California Code of 27 Regulations, Title 24, Part 6, nor as requiring the use or installation of any specific appliance or 1 Despite the foregoing, the Ordinance expressly provides that it “shall in no way be 2 construed as amending California Energy Code requirements under California Code of 3 Regulations, Title 24, Part 6, nor as requiring the use or installation of any specific appliance or 4 system as a condition of approval.” Id. § 12.80.020.C. According to the express terms of the 5 Ordinance, the Ordinance attempts to address the global impacts caused by the combustion of 6 natural gas. Id. §§ 12.80.010.A, 12.80.010.D. 7 The EPCA: The EPCA regulates the energy efficiency of consumer products including air 8 conditioners, water heaters, furnaces, clothes washers and dryers, and stoves. See 42 U.S.C. §§ 9 6292, 6295. As relevant here, the EPCA’s consumer standards explicitly preempt state and local 10 regulations “concerning the energy efficiency” and “energy use” of the products for which the 11 EPCA sets its own energy efficiency standards. Id. § 6297(c). Section 6297(c) expressly provides: [E]ffective on the effective date of an energy conservation standard 12 established in or prescribed under section 6295 of this title for any covered product, no State regulation concerning the energy 13 efficiency, energy use, or water use of such covered product shall be effective with respect to such product . . . . 14 15 Id. The term “covered product” includes various categories of consumer products mentioned 16 above, including appliances and lighting. Id. §§ 6291(2), 6292. 17 The EPCA contains only limited exceptions to this general rule of preemption for 18 consumer appliances. Specifically, a regulation is not preempted if it “is in a building code for 19 new construction” and must further meet seven specific explicit requirements. Id. §§ 6297(c)(3), 20 (f)(3). 21 The EPCA also governs the energy efficiency of certain commercial appliances, including 22 air conditioners, furnaces, water heaters, and clothes washers. Id. § 6313. These standards also 23 explicitly “supersede any State or local regulation concerning the energy efficiency or energy use 24 of a product for which a standard is prescribed or established” in the federal statute. Id. § 25 6316(b)(2)(A). “Covered” industrial equipment is defined in Id. § 6311(1) and includes 26 “commercial package air conditioning and heating equipment,” “warm air furnaces,” and several 27 types of water heaters, but notably does not include ovens for commercial kitchens. 1 for commercial appliances. In particular, a local regulation “contained in a State or local building 2 code for new construction” is not preempted if it does “not require that the energy efficiency of” a 3 product covered in the federal statute “exceed[s] the applicable minimum energy efficiency 4 requirement.” Id. § 6316(b)(2)(B). 5 In total, each of these preemption provisions turns on whether a state law or local 6 ordinance regulates the “energy efficiency” or “energy use” of a covered product, which are 7 defined, respectively, as “the ratio of the useful output of services from a consumer product to the 8 energy use of such product,” and “the quantity of energy directly consumed by a consumer 9 product at point of use.” Id. § 6291(4)-(5). 10 B. Procedural Background 11 CRA commenced this lawsuit on November 21, 2019. (Dkt. No. 1.) Berkeley moved to 12 dismiss the then operative complaint on January 13, 2020. (Dkt. No. 18.) While set for hearing in 13 April 2020 by the parties’ stipulation, the hearing on this matter was vacated in March 2020 due to 14 the initial outbreak of the Coronavirus (COVID-19) pandemic. (Dkt. No. 31.) The Court 15 thereafter permitted supplemental briefing on discrete issues (Dkt. No. 32), before resetting a 16 hearing via the Zoom platform for July 14, 2020. (Dkt. No. 36.) 17 The Court heard the prior motion to dismiss on July 14, 2020. (Dkt. Nos. 40 (minutes), 43 18 (transcript).) On the record at the hearing, and later confirmed in a written Order, the Court 19 granted in part Berkeley’s motion on the grounds of both ripeness and standing for the reasons 20 stated on the record. (See Dkt. No. 41 (Order).) The Court otherwise denied without prejudice the 21 remaining grounds of the motion, permitting Berkeley to re-raise these arguments in response to 22 the filing of any subsequent amended complaint. (Id.) The Court later denied Berkeley’s request 23 to conduct pre-answer discovery as to the identity of the member or members that would open a 24 restaurant but for the Berkeley Ordinance. (Dkt. Nos. 44 (joint discovery letter brief), 45 (Order).) 25 On August 14, 2020, CRA filed the now operative first amended complaint. (Dkt. No. 46.) 26 Berkeley moved to dismiss the first amended complaint on substantively identical grounds as its 27 prior motion. (Dkt. No. 47.) The parties fully briefed the motion on an extended briefing 1 52 (opposition), 58 (reply), 59 (Order granting stipulation re: continuing motion hearing date).) 2 The Court further received an unopposed motion for leave to file an amici curiae brief from the 3 amici, which the Court granted. (See Dkt. Nos. 56 (motion for leave to file amici curiae brief), 65 4 (Order granting motion), 66 (amici curiae brief).) 5 Due to conflicts with the Court’s calendar for the month of December 2020, the Court 6 vacated the December 8, 2020 hearing date (Dkt. No. 67), before later resetting the hearing for 7 February 2, 2021. (Dkt. No. 68.) The Court heard oral arguments on the motion on February 2, 8 2021. (Dkt. Nos. 70 (minutes), 72 (transcript).) The matter is now ripe for resolution. 9 Finally, subject matter jurisdiction in this action is grounded upon federal question 10 jurisdiction. 28 U.S.C. § 1331. Specifically, subject matter jurisdiction is premised on CRA’s 11 first cause of action, which seeks declaratory relief and to enjoin state action as preempted by 12 federal law (the EPCA). The Court would otherwise have supplemental jurisdiction over the 13 remaining causes of action, which assert preemption of the Berkeley Ordinance under California 14 law. 15 II. LEGAL STANDARDS 16 Berkeley brings this motion under Rules 12(b)(1) and (b)(6). The legal standards under 17 both subsections for this motion are well known and not in dispute. Thus: 18 First, Rule 12(b)(1) provides that an action may be dismissed for lack of subject matter 19 jurisdiction. Federal courts are of “limited jurisdiction” and plaintiff bears the burden to prove the 20 requisite federal subject matter jurisdiction. Kokkonen v. Guardian Life Ins. of Am., 511 U.S. 375, 21 377 (1994). A challenge pursuant to Rule 12(b)(1) may be facial or factual. See White v. Lee, 227 22 F.3d 1214, 1242 (9th Cir. 2000). A facial 12(b)(1) motion involves an inquiry confined to the 23 allegations in the complaint, whereas a factual 12(b)(1) motion permits the court to look beyond 24 the complaint to extrinsic evidence. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). In 25 other words, “[i]n a facial attack, the challenger asserts that the allegations contained in a 26 complaint are insufficient on their face to invoke federal jurisdiction[,]” while in a factual 27 challenge, the challenger “disputes the truth of the allegations that, by themselves, would 1 Cir. 2004). 2 Second, Rule 12(b)(6) provides that a complaint may be dismissed for failure to state a 3 claim upon which relief may be granted. Dismissal for failure to state a claim under Rule 12(b)(6) 4 is proper if there is a “lack of a cognizable legal theory or the absence of sufficient facts alleged 5 under a cognizable legal theory.” Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 6 2011) (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988)). The 7 complaint must plead “enough facts to state a claim [for] relief that is plausible on its face.” Bell 8 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 9 III. ANALYSIS 10 Berkeley raises three grounds for dismissal: First, under Rule 12(b)(1), Berkeley avers that 11 CRA lacks standing and that the first amended complaint should further be dismissed because it is 12 unripe. Second, under Rule 12(b)(6), Berkeley asserts that the Ordinance is not preempted by the 13 EPCA. Third, under the same rule, Berkeley further asserts that the Ordinance is not preempted 14 by California state laws. Finally, and alternatively, Berkeley contends that, should the Court 15 decide to dismiss the EPCA claim, the Court should decline to exercise jurisdiction over the 16 remaining state law preemption claims. The Court considers each of these arguments in turn. 17 A. Rule 12(b)(1) 18 1. Standing 19 Berkeley renews its arguments relating to standing from the prior motion to dismiss. Here, 20 the parties agree that CRA brings a facial challenge, as opposed to as-applied challenge, to the 21 Berkeley Ordinance. Berkeley, however, asserts that the injury is speculative and hypothetical, 22 and further cites to additional declarations to demonstrate the lack of standing where no CRA 23 member has applied for an exemption from the Ordinance’s natural gas ban in new construction. 24 Article III of the United States Constitution provides that federal courts may only 25 adjudicate “cases” and “controversies.” U.S. Const. art. III, § 2. To establish standing under 26 Article III, “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the 27 challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial 1 of Wildlife, 504 U.S. 555, 560-561 (1992)). Injury in fact is “the ‘first and foremost’ of standing’s 2 three elements. Id. (original alterations omitted) (quoting Steel Co. v. Citizens for Better Env’t., 3 523 U.S. 83, 103 (1998)). 4 “To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a 5 legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not 6 conjectural or hypothetical.’” Id. at 1548 (quoting Lujan, 504 U.S. at 560). The “mere existence 7 of a statute,” which may or may not ever be applied to a plaintiff, is insufficient to establish 8 standing. Jensen v. Nat’l Marine Fisheries Serv. (NOAA), 512 F.2d 1189, 1191 (9th Cir. 1975) 9 (possibility that fishing boat owners and operators could be prosecuted for violating federal 10 regulation does not give rise to case or controversy under Article III); see also Stoianoff v. State of 11 Mont. 695 F.2d 1214, 1223 (9th Cir. 1983) (operator of “head shop” had no standing to challenge 12 statute restricting advertisements of drug paraphernalia, in the absence of any actual or pending 13 threat of prosecution). 14 The Supreme Court further requires that plaintiff-organizations like CRA to “make specific 15 allegations establishing that at least one identified member had suffered or would suffer 16 harm.” Summers v. Earth Island Inst., 555 U.S. 488, 498 (2009). Such an organization must show 17 that at least one of its members has “standing to sue in [his] own right.” Ecological Rts. Found. v. 18 Pac. Lumber Co., 230 F.3d 1141, 1147 (9th Cir. 2000). In deciding the issue of standing at the 19 pleadings stage, the Court “must accept as true all material allegations of the complaint, and must 20 construe the complaint in favor of the” plaintiff. Desert Citizens Against Pollution v. Bisson, 231 21 F.3d 1172, 1178 (9th Cir. 2000) (quotation marks omitted). 22 Having reviewed the additional allegations in the first amended complaint, Berkeley does 23 not persuade. The allegations added to the first amended complaint, that (i) CRA has at least one 24 member who would operate a new restaurant in a new construction in Berkeley using natural gas 25 appliances but for the Ordinance and (ii) that its members use both appliances under the 26 “consumer” and “industrial” categories under the EPCA, are legally sufficient to establish 27 standing to bring this action. These allegations plainly satisfy the standing requirements 1 Berkeley’s citation to additional submitted declarations are without merit. In short, the 2 parties quibble over whether the Court can or should consider the declarations submitted by 3 Berkeley, demonstrating that no CRA member has applied for an exemption from the Ordinance, 4 at this stage of the litigation. Even considering these declarations, however, these declarations do 5 not question the truth of the allegations in the first amended complaint. Said differently, the 6 declarations do contradict the allegations that CRA has a member that would open a restaurant in 7 Berkeley but for the Ordinance.4 At face value, these declarations merely confirmed that no 8 individual has sought an exemption from the mandates of the Ordinance. These declarations 9 therefore fail to raise a factual challenge under Rule 12(b)(1), and the Court is therefore left to 10 consider this motion as a facial challenge to CRA’s standing. In such circumstances, “[t]he 11 district court resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6)[,]” based 12 on the allegations in the complaint. Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014); Am. 13 Fed’n of Tchrs. v. Devos, 484 F.Supp.3d 731, 741-42 (N.D. Cal. 2020); see also Desert, 231 F.3d 14 at 1178. Here, the Court concludes that CRA has adequately demonstrated standing based on the 15 allegations in the complaint. 16 Accordingly, because CRA has appropriately included allegations demonstrating sufficient 17 standing, the Court DENIES the motion to dismiss on this ground. 18 2. Ripeness 19 Relatedly, Berkeley renews its ripeness arguments from the prior motion to dismiss. 20 Specifically, Berkeley contends that the facial challenge as to the Ordinance is not yet ripe, and 21 that CRA fails to otherwise so demonstrate. 22 In general, the doctrines of standing and ripeness are “closely related,” but ripeness 23 “requires an additional inquiry into ‘whether the harm asserted has matured sufficiently to warrant 24 judicial intervention.’” Pac. Legal Found. v. State Energy Res. Conservation & Dev. Comm’n, 25

26 4 As noted in the Order denying early discovery: “Ninth Circuit authority is clear that CRA need not provide the name of an affected member in its complaint.” (Dkt. No. 45 at 2 (citing 27 Nat’l Council of La Raza v. Cegavske, 800 F.3d 1032, 1041 (9th Cir. 2015) (holding that a 1 659 F.2d 903, 915 (9th Cir. 1981) (citing Warth v. Seldin, 422 U.S. 490, 499 n.10 (1975)). “For a 2 case to be ripe, it must present issues that are ‘definite and concrete, not hypothetical or abstract.’” 3 Bishop Paiute Tribe v. Inyo County, 863 F.3d 1144, 1153 (9th Cir. 2017) (quoting Thomas v. 4 Anchorage Equal Rts. Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000)). The ripeness doctrine 5 applies to challenges to legislation or regulations, and courts have held that if the issues raised by 6 such a challenge “would be illuminated by the development of a better factual record, the 7 challenged statute or regulation is generally not considered fit for adjudication until it has actually 8 been applied.” Pac. Legal Found., 659 F.2d at 915 (citations omitted). 9 Here, having considered the allegations in the complaint, and the parties’ briefing, 10 Berkeley again does not persuade. With regards to subject matter jurisdiction generally, the 11 United States Supreme Court has recognized “in some cases . . . a person subject to a scheme of 12 federal regulation may sue in federal court to enjoin application to him of conflicting state 13 regulations.” Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 14 20 n.20 (1983). Indeed, in Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n.14 (1983), the 15 Supreme Court found it “beyond dispute that federal courts have jurisdiction over suits to enjoin 16 state officials from interfering with federal rights.” Id. (citing Ex parte Young, 209 U.S. 123, 160- 17 62 (1908)). The Ninth Circuit has likewise held that federal courts have jurisdiction to hear suits 18 to enjoin the enforcement of preempted state laws: “when a plaintiff seeks to enjoin state action 19 because federal law preempts it, jurisdiction is proper.” S. Pac. Transp. Co. v. Pub. Utils. Comm’n 20 of Cal., 716 F.2d 1285, 1288 (9th Cir. 1983); see also Pac. Merch. Shipping Ass’n v. Aubry, 918 21 F.2d 1409, 1414 (9th Cir. 1990); S. Cal. Gas Co. v. County. of Los Angeles., Case No. 17-cv- 22 5140(DSF), 2017 WL 8793753, at *4 (C.D. Cal. Dec. 4, 2017). 23 Here again, because the CRA is seeking to enjoin Berkeley from enforcing the Ordinance 24 on the basis of federal preemption by the EPCA, the Court has jurisdiction to review the matter. 25 Berkeley’s cited authorities do not apply in this context. 26 Indeed, regarding ripeness, a facial challenge does not depend on the particular application 27 of the Ordinance. See Harris v. Mex. Specialty Foods, Inc., 564 F.3d 1301, 1308 (11th Cir. 2009); 1 factual development because the Students’ action is a facial challenge.”); L.A. Cty. Bar Ass’n v. 2 Eu, 979 F.2d 697, 704 (9th Cir. 1992) (“Further factual development will not assist our 3 consideration of” a facial challenge where the “relevant facts are clear”). Indeed, courts have 4 routinely allowed facial challenges for preemption claims. See, e.g., Cal. Tow Truck Ass’n v. City 5 & County of San Francisco., 693 F.3d 847, 865 (9th Cir. 2012); Yakima Valley Mem’l Hosp. v. 6 Wash. State Dep’t of Health, 654 F.3d 919, 926 (9th Cir. 2011); Knox v. Brnovich, 907 F.3d 1167, 7 1173 (9th Cir. 2018). In this context, “a purely legal claim is presumptively ripe for judicial review 8 because it does not require a developed factual record.” Harris, 564 F.3d at 1308 (emphasis 9 supplied); see also id. (noting that ripeness “applies differently to facial and as-applied 10 challenges”). Berkeley fails to show, and the Court cannot otherwise determine, that any 11 developed factual record would be required to review of the facial challenge of the Ordinance. 12 Thus, in light of the foregoing, the Court concludes that the facial challenge of the Ordinance is 13 now ripe for the Court to consider. 14 Accordingly, the Court DENIES the motion to dismiss on this ground. 15 B. Rule 12(b)(6) 16 1. Preemption by Federal Law 17 Berkeley moves to dismiss the first cause of action, preemption by the EPCA, under Rule 18 12(b)(6). Specifically, Berkeley contends that CRA cannot state a cause of action for federal 19 preemption because, even under a generous reading of the allegations, the statutory language, and 20 the legislative history, the EPCA simply does not preempt the Ordinance. Therefore, CRA cannot 21 state a claim for federal preemption of the Ordinance. 22 In general, “[f]ederal preemption occurs when: (1) Congress enacts a statute that explicitly 23 preempts state law; (2) state law actually conflicts with federal law; or (3) federal law occupies a 24 legislative field to such an extent that it is reasonable to conclude that Congress left no room for 25 state regulation in that field.” Hendricks v. StarKist Co., 30 F. Supp. 3d 917, 925 (N.D. Cal. 2014) 26 (quoting Chae v. SLM Corp., 593 F.3d 936, 941 (9th Cir. 2010)). 27 Here, as reflected in the first amended complaint, the parties’ briefing, and confirmed at 1 Nos. 52 at 20-28 (argument regarding express preemption), id. at 28 (“Here, the CRA is not 2 asserting a conflict preemption claim—only an express preemption claim.”), 72 at 5 (“Well, to be 3 precise about it, we are not arguing field preemption. . . . We’re arguing express preemption.”).) 4 “Express preemption results from a Congressional expression of intent to displace state law.” 5 Hendricks, 30 F. Supp. 3d at 925 (citing Chae, 593 F.3d at 942). “Since pre-emption claims turn 6 on Congress's intent, we begin as we do in any exercise of statutory construction with the text of 7 the provision in question, and move on, as need be, to the structure and purpose of the Act in 8 which it occurs.” Air Conditioning & Refrigeration Inst. v. Energy Res. Conservation & Dev. 9 Comm'n, 410 F.3d 492, 495 (9th Cir. 2005) (internal quotation marks omitted). 10 The Ninth Circuit has instructed that the “interpretation of the federal statute is informed 11 by two presumptions about the nature of preemption.” Id. at 496. First, courts “address claims of 12 preemption with the starting presumption that Congress did not intend to supplant state law.” Id. 13 Indeed, where federal law intrudes on the historic police powers of state and local governments, 14 the federal statute should not supersede state law “unless a ‘clear and manifest purpose of 15 Congress’ exists.” Hendricks, 30 F. Supp. 3d at 925 (citing Wyeth v. Levine, 555 U.S. 555, 565 16 (2009)). “This presumption against preemption leads us to the principle that express preemption 17 statutory provisions should be given a narrow interpretation.” Air Conditioning & Refrigeration 18 Inst., 410 F.3d at 496 (emphasis supplied). 19 Second, “the scope of the statute’s preemption is guided by the Supreme Court’s oft-stated 20 comment that the purpose of Congress is the ultimate touchstone in every pre-emption case.” Id. 21 (internal quotation marks omitted). “As a result, any understanding of the scope of a pre-emption 22 statute must rest primarily on a fair understanding of congressional purpose.” Id. (internal 23 quotation marks omitted). 24 “Parties seeking to invalidate a state law based on preemption bear the considerable burden 25 of overcoming the starting presumption that Congress does not intend to supplant state law.” 26 Stengel v. Medtronic, 704 F.3d 1224, 1227–28 (9th Cir. 2013) (en banc) (citation and internal 27 quotation marks omitted). Further, “[t]he words of this statute must be interpreted to mean what 1 F.3d 776 (9th Cir. 1995)) (“Courts must presume that a legislature says in a statute what it means 2 and means in a statute what it says.”). 3 Here, CRA argues that the express language of the EPCA and the legislative history 4 demonstrate that CRA has appropriately pled a claim of preemption of the Berkeley Ordinance. 5 Specifically, CRA avers that the preemption provision is broad, and that the legislative history 6 confirms an expansive preemption of local laws that would otherwise lead to a nationwide 7 patchwork of local varying laws that would affect energy use or energy efficiency of certain 8 covered commercial and consumer appliances. 9 Having considered the totality of the parties’ briefing and the cited authority therein, CRA 10 does not persuade on its expansive interpretation of the EPCA’s express preemption provision. 11 The Court concludes therefore that CRA fails to and cannot state a claim for relief for federal 12 preemption by the EPCA. 13 First, CRA fails to demonstrate that the express terms of the EPCA sweep so broad as to 14 implicate the Ordinance. CRA asserts that the “plain language of the [EPCA] preemption statute 15 makes clear that Congress intended the preemption to be broad in scope.” Air Conditioning, 16 Heating & Refrigeration Inst. v. City of Albuquerque, 835 F. Supp. 2d 1133, 1136 (D.N.M. 2010). 17 Specifically, CRA bases this broad reading on the use of the word “concerning,” as 18 “‘[c]oncerning’ is defined as ‘relating to,’” which “express[es] a broad pre-emptive purpose.” Air 19 Conditioning, Heating and Refrigeration Inst. v. City of Albuquerque, Case No. 08-cv-633 20 (MV/RLP), 2008 WL 5586316, at *7 (D.N.M. Oct. 3, 2008) (quoting Black’s Law Dictionary 289 21 (6th ed. 1990)). 22 CRA further points out that “energy use” is defined as “the quantity of energy directly 23 consumed by a consumer product at point of use[,]” 42 U.S.C. § 6291(4), and “energy” is defined 24 as “electricity, or fossil fuels.” 42 U.S.C. § 6291(3). Thus, taking these discussed provisions 25 together, CRA contends that any ordinance is, by default, preempted if it relates to the quantity of 26 electricity or fossil fuels directly consumed by a covered consumer or commercial product. 27 The crux of the CRA’s argument is that the Ordinance concerns the quantity of natural gas 1 pipes required to use natural gas, the Ordinance requires that no natural gas is used. In other 2 words, the Ordinance requires that zero quantum of natural gas be used in new construction. In 3 some ways, this argument has some logic. Indeed, the Court has previously recognized that the 4 number “‘zero’ . . . has quantitative relevance.” Doe v. United Behavioral Health, --- F. Supp. 3d 5 ---, 2021 WL 842577, at *8 (N.D. Cal. Mar. 5, 2021) (citing Charles Seife, Zero: The Biography 6 of a Dangerous Idea (2000) (explaining the value of zero)). 7 These arguments, however, ultimately do not persuade. The Court agrees that the language 8 employed by the EPCA is broad. The EPCA preempts, subject to numerous exceptions, any state 9 regulation “concerning the energy efficiency, energy use, or water use of [a] covered product.” 42 10 U.S.C. § 6297(c). As outlined supra, these covered products are consumer related (id. §§ 6291(2), 11 6292) and certain commercial products (id. § 6313) which do not include stoves or ranges. 12 Moreover, each of these provisions turns on whether a state or local regulation regulates the 13 “energy efficiency” or “energy use” of a covered product. Id. § 6291(4)-(5). 14 Here, even with an admittedly broad provision, the Court cannot determine how the EPCA 15 expressly preempts the Berkeley Ordinance where the Berkeley Ordinance does not directly 16 regulate either the energy use or energy efficiency of covered appliances. In short, CRA attempts 17 to bootstrap the EPCA’s principles of the “energy efficiency” or “energy use” of covered products 18 to the Ordinance. CRA cannot. The Ordinance facially does not address any of those standards, 19 let alone mandate or require any particular energy use of a covered product. Instead, the 20 Ordinance “prohibit[s]” all “Natural Gas Infrastructure” in new buildings. See §§ 12.80.040(A), 21 12.80.030(E) (defining Natural Gas Infrastructure to include “fuel gas piping” from the gas meter 22 into the property). This is clearly outside the preemption provision of the EPCA.5 23 Moreover, even the most notoriously extensive statutory regimes enacted by Congress 24

25 5 Further, while “zero” has some qualitative meaning, the Ordinance does not facially and directly require “zero” use of natural gas appliances in Berkeley. Berkeley residents and property 26 owners are free to purchase and use natural gas appliances in those properties and residences that maintain natural gas connections. CRA has not shown the EPCA can and does sweep into areas of 27 natural gas connections. This is especially so where large swaths of the United States similarly 1 have limits. Indeed, in California Division of Labor Standards Enforcement v. Dillingham 2 Construction, N.A., Inc., 519 U.S. 316 (1997), the United States Supreme Court, when confronted 3 with similar “related to” and “connection with” language, held that the Employment Retirement 4 Income Security Act of 1974 (“ERISA”) “could not preempt state law in an area of traditional 5 state regulation based on so tenuous a relation” to ERISA plans. Id. at 334. The Court observed 6 that it looks to both “the objectives of the ERISA statute as a guide to the scope of the state law 7 that Congress understood would survive, as well as to the nature of the effect of the state law on 8 ERISA plans.” Id. at 325 (citation omitted). The Court reached this conclusion despite well- 9 established law attesting to the “broad scope” and “expansive sweep” of ERISA preemption, based 10 on “relate to” language in the statute. See id at 324. 11 The EPCA must be similarly interpreted in a limited manner, and not sweep into areas that 12 are historically the province of state and local regulation. Indeed, CRA’s expansive interpretation 13 of the EPCA is remarkable for its sweeping breadth, which would extend the EPCA far beyond the 14 express terms of the EPCA dealing with appliances. In short, CRA’s interpretation would compel 15 localities to continue to provide natural gas in all but the rarest of circumstances. Nothing in the 16 EPCA requires that localities provide let alone continue to maintain natural gas connections. 17 Indeed, as discussed infra, Congress has historically and explicitly deferred local natural gas 18 infrastructure to states and localities. Thus, the Court concludes that the statutory language of the 19 EPCA does not support preemption of the Berkeley Ordinance. 20 Second, the legislative history further does not support such an expansive interpretation of 21 the EPCA. The original EPCA, enacted during the oil crisis in the 1970s, focused on labeling the 22 energy efficiency of consumer appliances so that consumers could choose more efficient options. 23 Air Conditioning & Refrigeration Inst., 410 F.3d at 499. Congress in later legislation narrowed 24 the path for a state to avoid preemption, purposefully making it “difficult” to “achiev[e] the 25 waiver.” S. Rep. No. 100-6, at 2 (1987). Congress intended to allow only “performance-based 26 codes” that “authorize builders to adjust or trade off the efficiencies of the various building 27 components so long as an energy objective is met.” Id. at 10-11. Congress wanted to avoid state 1 products exceeding Federal standards.” Id. at 11. While the legislative history does not refer to 2 natural gas in particular, the Senate emphasized the need for “even-handed” standards that were 3 not “unfairly weighted” to particular products. Id. at 10-11. The legislation was designed to avoid 4 “the unavailability in the State of a product type or of products of a particular performance class,” 5 id. at 2, and to institute “performance-based codes” with energy objectives, id. at 10-11. 6 Despite the foregoing authority and legislative history confirming the breadth of 7 preemption relating to appliances under the EPCA, states and localities expressly maintain control 8 over the local distribution of natural gas under related federal statutes. The relevant scope of 9 federal authority is governed by the Natural Gas Act, 15 U.S.C. § 717 et seq., enacted in 1938 to 10 provide “a comprehensive scheme of federal regulation of ‘all wholesales of natural gas in 11 interstate commerce.’” S. Coast Air Quality Mgmt. Dist. v. F.E.R.C., 621 F.3d 1085, 1090 (9th 12 Cir. 2010) (quoting Northern Natural Gas Co. v. State Corp. Comm’n, 372 U.S. 84, 91 (1963)). 13 The Natural Gas Act “specifically exempted from federal regulation the ‘local distribution of 14 natural gas.’” Id. at 1091 (quoting Fed. Power Comm’n v. Transcon. Gas Pipe Line Corp., 365 15 U.S. 1, 21 (1961)). “Congress meant to draw a bright line easily ascertained, between state and 16 federal jurisdiction.” Fed. Power Comm’n v. S. Cal. Edison Co., 376 U.S. 205, 215 (1964). Thus, 17 “the history and judicial construction of the Natural Gas Act suggest that all aspects related to the 18 direct consumption of gas . . . remain within the exclusive purview of the states.” S. Coast Air 19 Quality Mgmt. Dist., 621 F.3d at 1092 (emphasis supplied). 20 Here, under the foregoing legislative history, the Court cannot determine how the Berkeley 21 Ordinance is preempted by the EPCA, where the Ordinance is exercising authority expressly 22 deferred to states and localities. The Berkeley Ordinance does not facially regulate or mandate 23 any particular type of product or appliance. Instead, the Ordinance focuses on regulating the 24 underlying natural gas infrastructure. This at best indirectly has an impact on the products 25 available to consumers. This narrow focus on the indirect impacts resulting from the Ordinance, 26 however, ignores that Berkeley has exercised its expressly carved out authority to regulate the 27 local distribution of natural gas. Thus, the legislative history further fails to demonstrate that the 1 energy use and energy efficiency of certain appliances. 2 In sum, for preemption purposes, the fact that an ordinance focused on natural gas piping 3 for new buildings may have some downstream impact on commercial appliances is insufficient.6 4 The plain meaning of EPCA does not requires a city to extend natural gas infrastructure, nor does 5 the statute preclude a city’s exercise of its power to regulate building infrastructure to protect 6 public health and safety. The EPCA was and is designed to avoid a patchwork of state efficiency 7 standards for certain covered appliances; nothing in the statute evinces legislative intent to require 8 local jurisdictions to permit the extension of natural gas service. To hold otherwise would be to 9 misapprehend the scope of the EPCA and extend it impermissibly extend beyond what Congress 10 intended, and infringe on historic and recognized powers held by states and localities. 11 Accordingly, for the above reasons, CRA’s first cause of action, federal preemption of the 12 Berkeley Ordinance by the EPCA, is DISMISSED WITH PREJUDICE. 13 2. Preemption by California State Laws 14 Given that the first cause of action is the only federal claim in this action, and the Court 15 has now determined that it is appropriately dismissed, the Court declines to exercise supplemental 16 jurisdiction as to the remaining state law claims in this action. Without a federal claim, principles 17 of federalism counsel that supplemental jurisdiction on the state claims should not be taken. See 18 Shanaghan v. Cahill, 58 F.3d 106, 109 (4th Cir. 1995) (district court has “discretion to retain or 19 dismiss state law claims when the federal basis for an action drops away” (citing 28 U.S.C. § 20 1367) (emphasis omitted); Acri v. Varian Assocs., Inc., 114 F.3d 999, 1000 (9th Cir. 1997) (en 21 banc)). Indeed, these claims implicate questions of California state law that are appropriately 22 decided by California state courts in the absence of any federal causes of action. 23 Accordingly, the motion to dismiss is GRANTED as to these claims. The remaining claims 24 asserting preemption by various California state laws are DISMISSED WITHOUT PREJUDICE. 25 26 6 Indeed, the Ordinance has zero effect on existing buildings or infrastructure, which 27 individuals and entities in these properties remain free to choose whatever appliances (e.g. natural 1 IV. CONCLUSION 2 For the foregoing reasons, the Court HEREBY ORDERS as follows: 3 e The motion to dismiss the first amended complaint is GRANTED IN PART AND 4 DENIED IN PART; 5 e The first cause of action for federal preemption by the EPCA, is DISMISSED WITH 6 PREJUDICE; and 7 e As discussed above, given that the first cause of action is the only federal claim, 8 the Court declines to exercise supplemental jurisdiction as to the remaining state 9 claims. Accordingly, the remaining claims asserting preemption by various 10 California state laws are DISMISSED WITHOUT PREJUDICE. 11 The Clerk of the Court is directed to issue form judgment consistent with the disposition of 12 || this motion and to close out this matter. 13 This Order terminates Docket Number 47. 14 IT Is SO ORDERED. 3 15 |] Dated: July 6, 2021 Lape Heap teftecs—

YVONNE GONZALEZ ROGERS

= 16 UNITED STATES DISTRICT JUDGE 17

Z 18

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