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Berkeley, Calif., asks federal court to toss restaurant group's gas ban lawsuit


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Berkeley, Calif., asks federal court to toss restaurant group's gas ban lawsuit

Berkeley, Calif., petitioned a federal court to throw out a lawsuit that aims to prevent the city from enforcing a ban on natural gas hookups in new buildings.

The Jan. 13 motion responds to litigation brought in November 2019 by the California Restaurant Association, or CRA, which argued that federal and state law preempt the Berkeley ordinance. Berkeley lawyers countered that the federal court lacks jurisdiction in the matter and should defer to state agencies while also arguing that the lawsuit is a premature response to hypothetical damages.

The CRA's claims for relief "fail on the merits," and the court should end the group's "ideologically motivated, legally deficient attack on the city's carefully crafted efforts to address greenhouse gas emissions from newly constructed buildings and to limit the construction of new natural gas infrastructure that will soon become obsolete," attorneys Christopher Jensen and Farimah Brown wrote.

The lawsuit is sure to be closely watched amid a growing number of measures to limit gas use in buildings. Nearly two dozen local California governments have passed building electrification measures since the Berkeley vote, and the movement has spread to Massachusetts and Washington.

The U.S. District Court for the Northern District of California could set a precedent on federal jurisdiction in the CRA lawsuit, potentially offering a path forward for future plaintiffs or, conversely, limiting their options.

A core part of CRA's argument is that Berkeley violated the federal Energy Policy and Conservation Act, which preempts state and local energy efficiency and use regulations, according to the group's lawyers. However, Berkeley has claimed that the plaintiffs failed to establish a basis for federal jurisdiction in the matter.

City lawyers said CRA lacks standing to file suit because it has failed to show it suffered an injury caused by the Berkeley ordinance. They highlighted that CRA has not identified any members seeking to open a restaurant in a building subject to the gas ban, much less a member that has sought an exemption and been denied.

"Instead, [the] plaintiff seeks to challenge the ordinance on its face, without waiting for any of its members to seek approval to install natural gas infrastructure under the explicitly established, clearly defined exemptions in the ordinance," the city lawyers said. "Given these facts, [the] plaintiff's alleged injury is conjectural, hypothetical, and insufficient to establish standing."

The lawyers noted that CRA members can seek an exemption in cases where it is unfeasible to construct a building without gas infrastructure or there is no acceptable alternative to gas-fueled technology. By filing the lawsuit before the ordinance went into effect Jan. 1, the plaintiffs sought to "short-circuit the process," in effect asking the court to predict every conceivable outcome of the exemption process, the city attorneys argued.

"The court should not try to do so in the absence of an attempt to actually apply the ordinance by the entities that are vested with discretion to enforce it and to grant exemptions when appropriate," the attorneys said.

The claims alleged by CRA fall "squarely" within the jurisdiction of the California Building Standards Commission and the California Energy Commission, and the federal court should defer to the agencies, the Berkeley lawyers argued.