Sierra Club calls for rehearing of 9th circuit decision on Berkeley electrification ordinance

By Kayah Swanson

BERKELEY, CA. – Today, Sierra Club filed an amicus brief at the Ninth Circuit Court calling for a rehearing on an April ruling that would overturn the City of Berkley’s first-in-the-nation electrification ordinance.

After a lawsuit and campaign partially bankrolled by SoCalGas, a panel of the Ninth Circuit court of appeals found the ordinance was preempted by the federal Energy Policy and Conservation Act (EPCA). Despite the ruling, Berkeley’s ordinance, which phases out gas piping in new buildings, remains in effect until proceedings in the case are finalized. The Ninth Circuit’s ruling is not yet final, and Berkeley has petitioned for it to be reheard. Today’s amicus filings by Sierra Club and several other parties express strong support for the city’s petition.

“The immense and complex challenge of climate change, which cuts across all sectors of the economy, requires States and localities to act in the areas where they are uniquely positioned to do so,” said Sierra Club Managing Attorney Gloria Smith. “Berkeley and many other localities have answered the call, adopting clean building policies that make major strides to tackle these sources of climate and air pollution. Nothing in the EPCA suggests that it forecloses this necessary state and local leadership, and the Court must grant rehearing to restore it.”

Sierra Club's filing argues that the panel's misguided decision will set back state and local clean building policies, which are essential elements of strategies to meet climate, air quality, and public health targets. Therefore, it is exceptionally important for the court to rehear the case en banc, a session in which a case is heard before 11 randomly selected judges of the 9th circuit rather than by three-judge panel. We can’t let the panel decision stand in the way of this progress, which is why the City of Berkeley, Sierra Club, and a broad range of amici are continuing this legal battle. 

New details about the lawsuit have emerged in the past week, including that SoCalGas attempted to charge California gas customers more than $1M to pay Reichman Jorgensen, the law firm leading the suit, for legal research on which the case was based.

“As local governments increasingly take climate action into their own hands, the gas industry has been working overtime to fight these policies and slow the transition off of polluting fossil fuels,” said Melissa Yu, Senior Energy Campaigns Representative. “It is untenable for these publicly regulated utilities, which are tasked with acting in the public's interest, to spend tremendous amounts of resources to roll back hard-won progress.” 

The electrification movement has gained steam in the 9th circuit's region, with 76 municipalities in California alone adopting policies to reduce methane gas pollution and phase out outdated fossil fuel infrastructure and appliances. 

The City and supporting amici have made a strong case for a rehearing. Advocates are confident that sound legal reasoning will prevail and this dubious decision will be vacated when reheard by the en banc court.