The number of court decisions upholding building decarbonization laws against federal preemption challenges is growing. After the Ninth Circuit’s decision in California Restaurant Association v. City of Berkeley (Berkeley), building decarbonization laws effectively prohibiting fossil-fuel appliances covered by the Energy Policy and Conservation Act of 1975 (EPCA) appeared to be on shaky ground. Since that court denied rehearing en banc, however, state and federal courts in other circuits have been consistently issuing decisions upholding similar building decarbonization laws by employing the reasoning of Judge Friedland’s dissenting opinion. Last week, two federal district courts continued that trend, rejecting EPCA challenges to local building decarbonization laws enacted in Montgomery County, Maryland and Washington, D.C. In both cases, the plaintiffs claimed that the building electrification laws are preempted by EPCA, and in support, advanced arguments similar to those accepted by the Ninth Circuit majority. Federal district courts in D.C. and Maryland were less receptive to the arguments.

This blog post provides background on these cases, analyzes the two decisions, and summarizes the state of building decarbonization litigation since Berkeley.

California Restaurant Association v. City of Berkeley: The Decision and Its Aftermath

In 2019, the City of Berkeley, California passed a law banning the installation of gas infrastructure in newly constructed buildings. This ‘natural gas ban’ was the first local ordinance in the country to effectively require all-electric construction of new buildings. The law was quickly challenged by a trade group, which argued that it was preempted by EPCA, a federal law that prohibits state and local regulations “concerning the … energy use” of certain products, including gas appliances. See 42 U.S.C. § 6297(c). At first instance, the U.S. District Court for the Northern District of California ruled that EPCA did not preempt Berkeley’s ordinance. The Ninth Circuit reversed, and Berkeley filed a petition for rehearing en banc, which the Ninth Circuit ultimately denied.

Since then, trade associations, corporations, and other groups have relied on the reasoning adopted by the majority in the Ninth Circuit’s decision to challenge building decarbonization laws in jurisdictions located in other circuits. This is not the end of the story, however. Judge Michelle Friedland dissented from the denial of rehearing, with ten other Circuit Judges. In her dissent, Judge Friedland contended that the majority “misinterpret[ed EPCA’s] key terms to have colloquial meanings instead of the technical meanings required by established canons of statutory interpretation.” When applying the proper technical meaning to EPCA’s operative terms, Judge Friedland concluded that Berkeley’s gas ban was not preempted. Broadly, the majority interpreted EPCA’s preemption provision to encompass regulations that affect a consumer’s ability to use covered gas appliances, whereas the dissent understood the statute as limited to regulations governing the energy efficiency and performance standards of the appliances themselves. Although the Ninth Circuit ultimately denied the petition for rehearing, the dissent’s view has gained additional support in recent court decisions, including in Maryland and D.C.

D.C. District Court Rejects EPCA Preemption: National Association of Home Builders of the United States et al., v. District of Columbia

In 2022, Washington D.C. passed the Clean Energy D.C. Building Code Amendment Act (the Clean Buildings Act). The law is set up to automatically prohibit “[o]n-site combustion of fossil fuels … for the provisions of thermal energy to the building” unless the Mayor issues different regulations that still achieve a net-zero energy standard. See D.C. Code § 6-1453.01(b)(2); Appendix Z of the D.C. Energy Conservation Code, at Z3.1.

In 2024, a group of trade associations, companies, and unions filed a lawsuit in district court contending that EPCA preempts the Clean Buildings Act. The plaintiffs’ main argument was that because the Clean Buildings Act prohibits the installation of some gas appliances, it reduces the energy use of those appliances to zero at the “point of use,” and therefore unlawfully “concern[s]” the “energy use” of EPCA-covered gas products. This argument mirrors the reasoning adopted by Berkeley’s majority.

On March 26, 2026, the D.C. District Court denied the plaintiffs’ motion for summary judgment. Following the logic from Judge Friedland’s dissenting opinion in Berkeley, the court straightforwardly held that “energy use” in EPCA “refers to a fixed measure of an appliance’s performance capacity … it does not concern whether the appliance can be used in a particular context.” Because the Clean Buildings Act prohibits gas appliances from certain buildings, it regulates only the latter. Put another way, the Clean Buildings Act does not affect the energy-related performance standards of an EPCA-covered appliance, i.e., its design. A gas stove has the same energy use wherever used, and even if it is not used at all due to the requirements of the Clean Buildings Act. The court illustrates the point with its own analogy: “No one would say that because Congress sets a chip-to-salsa ratio, it intended to ensure that every restaurant has a right to sell chips and salsa.”

Maryland District Court Follows Suit in National Association of Home Builders of the United States et al., v. Montgomery County, Maryland

In 2022, the Montgomery County Council unanimously passed Bill 13-22, a comprehensive building decarbonization law. It requires the County Executive to issue regulations by the end of 2026 requiring all-electric construction for new buildings and major renovations, and effectively prohibiting gas appliances (within very limited exceptions). According to a 2022 memorandum from Marc Elrich, the County Executive, the building sector accounted for 50% of the County’s emissions, and accordingly, the “[a]ll-electric building standards are a crucial step for the County to achieve its zero-greenhouse gas emissions goal through ensuring future construction is electrified.”

In 2024, an assortment of trade associations and corporations challenged Bill 13-22 as expressly preempted by EPCA. Two of the groups, the National Association of Home Builders (NAHB) and the Restaurant Law Center (RLC), are also plaintiffs in the D.C. case. The main argument raised against Bill 13-22 is the same as in D.C.: the plaintiffs allege that the County is regulating “energy use” by effectively prohibiting the use of gas-powered appliances in new construction. Similar to D.C., the County responded that EPCA preemption cannot reach Bill 13-22 because the bill does not “affect any energy-use standards,” it just prohibits appliances that use natural gas as a fuel source. Drawing heavily from Judge Friedland’s dissent in Berkeley, the court granted summary judgment in favor of the County, explaining that Bill 13-22 “simply does not regulate ‘energy use’ as the term is understood in EPCA.”

Other Courts that Have Rejected EPCA Preemption

As the District Court for the District of Maryland notes at the end of its opinion, its decision comes on the heels of several other lower court opinions adopting Judge Friedland’s technical construction of EPCA’s preemption provisions. In 2025, two district courts in New York upheld two separate building decarbonization laws: (1) the Southern District of New York upheld Local Law 154, which sets indoor air emissions limits for fossil fuel combustion in new buildings; and (2) the Northern District of New York upheld the All-Electric Buildings Act, which required the state to prohibit the installation of fossil-fuel equipment in new construction. Additionally, in July 2025, the United States District Court for the Central District of California held that EPCA did not preempt the South Coast Air Quality Management District’s zero-nitrogen oxide emission standard for water heaters, explaining that Berkeley’s narrow holding did not apply.

Conclusion

Although the Berkeley decision represented a significant win for the gas industry, challengers have faced a series of losses since. The recent decisions upholding Washington D.C.’s and Montgomery County’s laws draw heavily from Judge Friedland’s dissent in Berkeley and nod to other decisions employing a more technical analysis when interpreting EPCA’s preemption provisions. In post-Berkeley litigation, then, Berkeley increasingly looks like the exception, not the rule. With more courts coalescing around a narrower interpretation of EPCA, local governments may have clearer paths to regulate building sector emissions through similar laws.