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Cra
v.
City of Berkeley
21-16278.
Court of Appeals for the Ninth Circuit.
Jan 2, 2024.
Published

FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

CALIFORNIA RESTAURANT No. 21-16278 ASSOCIATION, a California nonprofit mutual benefit corporation, D.C. No. 4:19-cv-07668- Plaintiff-Appellant, YGR

v. ORDER AND AMENDED CITY OF BERKELEY, OPINION

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Yvonne Gonzalez Rogers, District Judge, Presiding

Argued and Submitted May 12, 2022 San Francisco, California

Filed April 17, 2023 Amended January 2, 2024

Before: Diarmuid F. O’Scannlain and Patrick J. Bumatay, Circuit Judges, and M. Miller Baker, * Judge.

* The Honorable M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation.

2 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY

Order; Opinion by Judge Bumatay; Concurrence by Judge O’Scannlain; Concurrence by Judge Baker; Dissent from Denial of Rehearing En Banc by Judge Friedland Statement Respecting Denial of Rehearing En Banc by Judge Berzon

SUMMARY **

Energy Law / Preemption

The panel issued (1) an order amending its opinion, Judge O’Scannlain’s concurrence, and Judge Baker’s concurrence filed on April 17, 2023; denying a petition for rehearing en banc; and ordering that no future petitions will be entertained; and (2) an amended opinion reversing the district court’s dismissal of the California Restaurant Association’s action alleging that the federal Energy Policy and Conservation Act (EPCA) preempts a City of Berkeley regulation that prohibits the installation of natural gas piping within newly constructed buildings. The panel held that the Association, whose members include restaurateurs and chefs, had Article III associational standing to bring this suit.

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 3 Based on its text, structure, and context, the panel held that EPCA preempts building codes like Berkeley’s ordinance that ban natural gas piping within new buildings. The panel wrote that, in dismissing the suit, the district court limited EPCA’s preemptive scope to ordinances that facially or directly regulate covered appliances, but such limits do not appear in EPCA’s text. EPCA’s preemption provision extends to regulations that address the products themselves and building codes that concern their use of natural gas. By enacting EPCA, Congress ensured that States and localities could not prevent consumers from using covered products in their homes, kitchens, and business. EPCA thus preempts Berkeley’s building code, which prohibits natural gas piping in new construction buildings from the point of delivery at the gas meter. Concurring, Judge O’Scannlain wrote that he agreed that EPCA preempts the Ordinance, but he only reached that conclusion because, under Ninth Circuit precedent, he was bound to hold that the presumption against preemption does not apply to the express-preemption provision at issue. He wrote that the issue presents a challenging question in a deeply troubled area of law—namely, which of the apparently conflicting lines of cases the court should follow in applying the presumption against preemption in express- preemption cases. Concurring, Court of International Trade Judge Baker wrote separately to express his reservations about the Association’s standing and to explain his view of why the ordinance invades the core area preempted by EPCA. Judge Friedland, joined (except as to the first sentence and accompanying footnote) by Chief Judge Murguia and 4 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY Judges Wardlaw, Gould, Koh, Sung, Sanchez, and Mendoza, dissented from the denial of rehearing en banc. She wrote to urge any future court that interprets EPCA not to repeat the panel opinion’s mistakes. She wrote that EPCA’s history, text, and structure all show that the Berkeley ordinance is not preempted because it does not affect “energy use” within the meaning of the statute. Respecting the denial of rehearing en banc, Judge Berzon, joined by Judges Paez and W. Fletcher, agreed with Judge Friedland’s dissent from the denial of rehearing en banc. COUNSEL Brian C. Baran (argued), Reichman Jorgensen Lehman & Feldberg LLP, Washington, D.C.; Courtland L. Reichman, Laura Carwile, Ariel C. Green Anaba, and Sarah Jorgensen, Reichman Jorgensen Lehman & Feldberg LLP, Redwood Shores, California; Kylie C. Kim, Massey & Gail LLP, Washington, D.C.; Gary J. Toman, Weinberg Wheeler Hudgins Gunn & Dial, Atlanta, Georgia; for Plaintiff- Appellant. Anthony L. Francois (argued) and Peter S. Prows, Briscoe Ivester & Bazel LLP, San Francisco, California; Sean H. Donahue, Donahue Goldberg & Weaver LLP, Washington, D.C.; Brendan Darrow, Rent Stabilization Board, Berkeley, California; Farima F. Brown, City Attorney, Berkeley Office of the City Attorney, Berkeley, California; for Defendant- Appellee. Angelo I. Amador, Restaurant Law Center, Washington, D.C., for Amicus Curiae Restaurant Law Center. CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 5 Thomas G. Pulham (argued), Deputy Attorney General; Michael S. Raab, H. Thomas Byron, III, and Joseph F. Busa, Appellate Staff Attorneys, Civil Division; Stephanie Hinds, Acting United States Attorney; Ismail J. Ramsey, Unites States Attorney; Brian M. Boynton, Principal Deputy Assistant Attorney General; United States Department of Justice, Washington, D.C.; Emily Hammond, Deputy General Counsel for Litigation, Regulation, and Enforcement; Alexandra Klass, Deputy General Counsel for Energy Efficiency and Clean Energy Demonstrations; Brent Allen, Deputy General Counsel for Environment and Litigation; United States Department of Energy, Washington, D.C.; Samuel T. Walsh, General Counsel; for Amicus Curiae USA. Michael L. Murray and Matthew J. Agen, American Gas Association, Washington, D.C., for Amicus Curiae American Gas Association. Megan Berge, Baker Botts LLP, San Francisco, California; JoAnna Adkisson, Baker Botts LLP, Washington, D.C.; Francesca Eick, Baker Botts LLP, Austin, Texas; for Amici Curiae Air Conditioning, Heating, and Refrigeration Institute; California Building Industry Association, Hearth, Patio, & Barbecue Association; National Association of Home Builders; and National Association of Manufacturers. Michael Burger, Jennifer Danis, and Amy E. Turner, Sabin Center for Climate Change Law, New York, New York, for Amici Curiae National League of Cities; League of California Cities; and California State Association of Counties. Theodore A.B. McCombs, Jonathan A. Wiener, M. Elaine Meckenstock, and Somerset Perry, Deputy Attorneys General; David A. Zonana and Myung J. Park, Supervising 6 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY Deputy Attorneys General; Edward H. Ochoa and Robert W. Byrne, Senior Assistant Attorneys General; Rob Bonta, California Attorney General; California Attorney General’s Office, San Diego, California; Brian E. Frosh, Maryland Attorney General, Maryland Attorney General’s Office, Baltimore, Maryland; Andrew J. Bruck, Acting New Jersey Attorney General, New Jersey Attorney General’s Office, Trenton, New Jersey; Letitia James, New York Attorney General, New York Attorney General’s Office, New York, New York; Robert W. Ferguson, Washington Attorney General, Washington Attorney General’s Office, Seattle, Washington; Georgia Pestana, Corporation Counsel, City of New York, New York, New York; Maura Healey, Commonwealth of Massachusetts Attorney General, Commonwealth of Massachusetts Attorney General’s Office, Boston, Massachusetts; Hector Balderas, New Mexico Attorney General, New Mexico Attorney General’s Office, Santa Fe, New Mexico; for Amici Curiae the states of California, Maryland, New York, New Jersey, New Mexico, New York, Oregon, and Washington, The Commonwealth of Massachusetts, The District of Columbia, and the City of New York. Regina J. Hsu, Earthjustice, San Francisco, California; Timothy R. Oberleiton, Earthjustice, Washington, D.C.; for Amici Curiae Climate Health Now, San Francisco Bay Physicians for Social Responsibility, Physicians for Social Responsibility & American Thoracic Society. Daniel N. Carpenter-Gold, Cara A. Horowitz, and Julia E. Stein, Frank G. Wells Environmental Law Clinic, UCLA School of Law, Los Angeles, California, for Amici Curiae Energy and Environmental Law Professors. CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 7 Kimberley E. Leefatt, Natural Resources Defense Council, Santa Monica, California; Thomas Zimpleman, Natural Resources Defense Council, Washington, D.C.; for Amici Curiae Chef Christopher Galarza and Chef Gerard Kenny II. Gloria D. Smith, Sierra Club, Oakland California, for Amicus Curiae Sierra Club. Daniel J. Becker, Assistant Counsel; John J. Sipos, Deputy General Counsel & Solicitor; New York Public Service Commission, Office of General Counsel, Albany, New York; for Amicus Curiae New York State Public Service Commission. Nathaniel R. Mattison, Guarini Center on Environmental, Energy and Land Use Law, New York, New York, for Amicus Curiae Guarini Center on Environmental, Energy and Land Use Law at New York University School of Law. ORDER The opinion, Judge O’Scannlain’s concurrence, and Judge Baker’s concurrence filed on April 17, 2023, and published at 65 F.4th 1045 (9th Cir. 2023), are amended by the opinion and respective concurrences filed concurrently with this order. Appellants filed a petition for rehearing en banc, Docket No. 92. Judge Bumatay voted to deny the petition for rehearing en banc and Judge O’Scannlain and Judge Baker so recommended. The full court was advised of the petition for rehearing en banc. A judge of the court requested a vote on whether to rehear the matter en banc. The matter failed to receive a 8 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY majority of the votes of the non-recused active judges in favor of en banc consideration. Fed. R. App. P. 35. The petition for rehearing en banc is DENIED. No further petitions for rehearing en banc will be considered. Judge H.A. Thomas did not participate in the deliberations or vote in this case. OPINION BUMATAY, Circuit Judge: By completely prohibiting the installation of natural gas piping within newly constructed buildings, the City of Berkeley has waded into a domain preempted by Congress. The Energy Policy and Conservation Act (“EPCA”), 42 U.S.C. § 6297(c), expressly preempts State and local regulations concerning the energy use of many natural gas appliances, including those used in household and restaurant kitchens. Instead of directly banning those appliances in new buildings, Berkeley took a more circuitous route to the same result. It enacted a building code that prohibits natural gas piping in those buildings from the point of delivery at a gas meter, rendering the gas appliances useless. The California Restaurant Association, whose members include restaurateurs and chefs, challenged Berkeley’s regulation, raising an EPCA preemption claim. The district court dismissed the suit. In doing so, it limited the Act’s preemptive scope to ordinances that facially or directly regulate covered appliances. But such limits do not appear in EPCA’s text. By its plain text and structure, EPCA’s preemption provision also encompasses building codes concerning the energy use of covered products. And thus CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 9 EPCA preempts Berkeley’s building code because it prohibits natural gas piping in new construction buildings from the point of delivery at the gas meter. We thus conclude that EPCA preempts Berkeley’s building code’s effect against covered products and reverse. I. In July 2019, the Council of the City of Berkeley, California, adopted Ordinance No. 7,672-N.S.— “Prohibition of Natural Gas Infrastructure in New Buildings” (“Ordinance”). As its name implies, the Ordinance prohibits, with some exceptions, “Natural Gas Infrastructure” in “Newly Constructed Buildings” in the City of Berkeley. Berkeley Mun. Code (“BMC”) § 12.80.040(A). “Natural Gas Infrastructure” is defined as “fuel gas piping, other than service pipe, in or in connection with a building, structure or within the property lines of premises, extending from the point of delivery at the gas meter as specified in the California Mechanical Code and Plumbing Code.” Id. § 12.80.030(E). And “Newly Constructed Building” refers to “a building that has never before been used or occupied for any purpose.” Id. § 12.80.030(F). These building codes “apply to Use Permit or Zoning Certificate applications” submitted after the Ordinance’s January 1, 2020, effective date. Id. §§ 12.80.020(A), 12.80.080. The Ordinance seeks to “eliminate obsolete natural gas infrastructure and associated greenhouse gas emissions in new buildings where all-electric infrastructure can be most practicably integrated, thereby reducing the environmental and health hazards produced by the consumption and transportation of natural gas.” Id. § 12.80.010(H). By its own terms, the Ordinance “shall in no way be construed . . . 10 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY as requiring the use or installation of any specific appliance or system as a condition of approval.” Id. § 12.80.020(C). The Ordinance also exempts a new construction from its prohibition if it is in the “public interest” or if it is “not physically feasible.” Id. §§ 12.80.040(A), 12.80.050. In November 2019, the Association sued the City of Berkeley, claiming that EPCA and state law preempted the Ordinance. After the City moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), the district court dismissed the EPCA claim. It concluded that EPCA must be “interpreted in a limited manner,” so that the Act doesn’t “sweep into areas that are historically the province of state and local regulation.” Cal. Rest. Ass’n v. City of Berkeley, 547 F. Supp. 3d 878, 891 (N.D. Cal. 2021). Because the Ordinance does “not facially regulate or mandate any particular type of product or appliance” and because its impact is “at best indirect[]” on consumer products, the district court ruled that EPCA does not preempt the Ordinance. Id. It then declined to exercise supplemental jurisdiction and dismissed the state-law claims. Id. The Association timely appealed, and we review de novo. Air Conditioning & Refrigeration Inst. v. Energy Res. Conservation & Dev. Comm’n, 410 F.3d 492, 495 (9th Cir. 2005). II. Before jumping to the merits of this case, we must first assure ourselves of the Association’s Article III standing. To satisfy associational standing requirements, an organization must demonstrate that (1) at least one of its members has suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent, rather than conjectural or hypothetical; (2) the injury is fairly traceable CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 11 to the challenged action; and (3) it is likely, not merely speculative, that the injury will be redressed by a favorable decision. Nat. Res. Def. Council v. EPA, 735 F.3d 873, 878 (9th Cir. 2013). Berkeley contends that the Association lacks standing because it failed to establish that the Ordinance would imminently harm its members. We disagree. When “standing is challenged on the basis of the pleadings,” we must “accept as true all material allegations of the complaint” and “construe the complaint in favor of the complaining party.” Pennell v. City of San Jose, 485 U.S. [1], 7 (1988) (simplified). At this stage, “general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (simplified). In its complaint, the Association explains that restaurants rely on natural gas for preparing certain foods and that many chefs are trained only on natural gas stoves. The Association’s members include restaurateurs and chefs who do business or seek to do business in Berkeley. And the Association alleges that one or more of its members would like to open or relocate a restaurant in a new Berkeley building completed after the Ordinance became effective on January 1, 2020. But those members could not do so because of the Ordinance’s ban on natural gas. The City contends these allegations don’t establish standing because they don’t allege “how soon” in the future an Association member would open or relocate a restaurant. To establish “actual or imminent” injury, the Association must show a “credible threat that a probabilistic harm will 12 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY materialize.” Nat. Res. Def. Council, 735 F.3d at 878 (simplified). The goal of this requirement is “to ensure that the concept of ‘actual or imminent’ harm is not stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes.” Id. (simplified). In Natural Resources Defense Council, we held that it was enough that the government’s action “increases the threat of future harm to [the organization’s] members.” Id. In that case, the imminence prong was satisfied when the Environmental Protection Agency’s conditional registration of two pesticides would “increase[] the odds of exposure” for the organization’s members’ children. Id. Given our precedent, the Association has easily established standing. The Association has alleged that its members would open or relocate a restaurant in a new building in Berkeley but for the City’s ban on natural gas. Thus, because of the Ordinance, the Association’s members cannot open a restaurant in any new Berkeley building and use natural gas appliances. That poses a “credible threat” of a “probabilistic harm,” even if the Association hasn’t provided a date certain for any restaurant’s opening night. We now turn to the merits of this challenge. III. At issue here is the scope of EPCA’s preemption clause. Berkeley argues that EPCA preemption only covers regulations that impose standards on the design and manufacture of appliances, not regulations that impact the distribution and availability of energy sources like natural gas. The federal government, as amicus, offers a slightly different take. It contends that EPCA only preempts “energy conservation standards” that operate directly on the covered CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 13 products themselves. The Association disagrees with both. It believes that EPCA preemption extends to regulations, like Berkeley’s building code, that effectively ban covered products from using available energy sources. As with any express preemption case, our focus is on the plain meaning of the preemption provision. See Puerto Rico v. Franklin Cal. Tax-Free Tr., 579 U.S. 115, 125 (2016). That’s because “the plain wording of the clause . . . necessarily contains the best evidence of Congress’ pre- emptive intent.” Id. In discerning its meaning, we look to EPCA’s text, structure, and context. See R.J. Reynolds Tobacco Co. v. Cnty. of Los Angeles, 29 F.4th 542, 552 (9th Cir. 2022). And we apply this textual analysis “without any presumptive thumb on the scale” for or against preemption. Id. at 553 n.6. Based on its text, structure, and context, we conclude EPCA preempts building codes like Berkeley’s Ordinance that ban natural gas piping within new buildings. Our holding here is limited. We conclude only that EPCA applies to building codes and that Berkeley’s Ordinance falls with the Act’s preemptive scope. A. EPCA’s preemption clause establishes that, once a federal energy conservation standard becomes effective for a covered product, “no State regulation concerning the energy efficiency, energy use, or water use of such covered product shall be effective with respect to such product,” unless the regulation meets one of several categories not relevant here. 42 U.S.C. § 6297(c). For our purposes, we need to determine what constitutes a “regulation concerning the . . . energy use” of a covered product. [14] CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY Of critical importance here is that the structure of the statute indicates that “a regulation concerning the . . . energy use” can include “building code requirements.” § 6297(f) (heading). “A regulation . . . that is contained in a State or local building code for new construction concerning the energy efficiency or energy use of a covered product” is superseded by EPCA unless it complies with various requirements. § 6297(f)(1)–(3) (emphasis added). 1 So subsection (f) demonstrates that EPCA’s preemptive scope extends beyond direct or facial regulations of covered products to at least include building codes “concerning the energy . . . use” of such products. To ascertain what Congress meant by “energy use,” we turn to the statutory definitions. EPCA defines “energy use” as “the quantity of energy directly consumed by a consumer product at point of use.” § 6291(4). 2 “[E]nergy” refers to “electricity” or “fossil fuels,” such as natural gas. § 6291(3). A “consumer product” is “any article” which “consumes, or is designed to consume,” energy or water and is distributed for personal use. § 6291(1). The preemption clause applies to any “covered product,” which is defined as certain “consumer products,” like refrigerators, dishwashers, and kitchen ovens. §§ 6291(2), 6292. 3 And as a matter of ordinary meaning, “point of use” means the “place where First, I am not convinced that we have correctly followed the Supreme Court’s instructions in this admittedly troubled area. The Supreme Court is always free, of course, to change its precedent. But our court does not enjoy such power. As explained, while Franklin declined to invoke the presumption, it also declined expressly to mention—much less to overrule—the many cases where the Court had repeatedly applied the presumption. I do not read Franklin’s passing remark as sub silentio overruling the decades of Supreme Court cases that held—indeed, mandated—that the presumption applies. And I have real doubts about whether Franklin abrogated Ninth Circuit precedents that rested on pre-Franklin Supreme Court decisions. Perhaps Franklin’s rule could be read modestly and reconciled with some of those decisions. See Shuker, 885 F.3d at 771 n.9 (giving Franklin a narrow reading). And perhaps Franklin could be understood to leave intact circuit precedents that were based on Supreme Court decisions that Franklin declined directly to disturb. See, e.g., Air Conditioning, 410 F.3d at 495 (relying on Medtronic, 518 U.S. at 485); Golden Gate Rest. Ass’n v. City & County of San Francisco, 546 F.3d 639, 647 (9th Cir. 2008) (relying on Travelers, 514 U.S. at 661); cf. Dialysis, 938 F.3d at 259 n. 11 (concluding that Franklin did not abrogate circuit precedent predicated on Travelers). In the face of so much law from the Court requiring the

[*1]

CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 35

application of the presumption over the years, I would not rush to read Franklin as categorically establishing that the presumption is inapplicable to express-preemption provisions across the board.

[*2]

Second, whatever the extent of Franklin’s reach, I am concerned that our court has not adequately grappled with this difficult question. I regret that essentially none of our decisions relying on Franklin to jettison our pre-Franklin approach offered any express discussion of the Miller or Agostini doctrines—ordinarily a requirement for us to act in the teeth of old precedent. See, e.g., Miller, 335 F.3d at 900 (holding that a prior circuit authority is only abrogated where it is “clearly irreconcilable” with the “reasoning or theory of intervening higher authority”); Agostini, 521 U.S. at 237 (holding that “lower courts should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions”). Our cases that have addressed Franklin’s scope and effect have said, with all due respect, very little—and, with due respect again, nothing that directly addresses the inquiries Miller and Agostini require us to conduct. See Nat’l R.R. Passenger Corp., 41 F.4th at 1153 n.1; Reynolds, 29 F.4th at 553 n.6; Teamsters, Loc. 2785, 986 F.3d at 853; Atay, 842 F.3d at 699; Connell, 988 F.3d at 1097. Perhaps our court has correctly interpreted the Supreme Court’s instructions, but the lack of any meaningful engagement with the question does not inspire confidence.

[*3]

But I do not write on a blank slate. Even though Air Conditioning applied the presumption to an express- preemption provision in EPCA, I understand the Ninth Circuit precedent since Franklin to instruct that the broad

36 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY

reading of Franklin is now our court’s law—meaning that at least where, as here, we are tasked to interpret the preemptive scope of a new express-preemption provision, the presumption against preemption is inapplicable. See, e.g., Reynolds, 29 F.4th at 553 n.6; supra at 33 (collecting cases establishing this rule). Under this approach, even if Air Conditioning continues to govern the specific preemption provisions it was tasked to construe (42 U.S.C. §§ 6297(a), 6316(a)-(b)), it should not be extended to the neighboring-but-distinct express-preemption provision we are required to interpret today (42 U.S.C. § 6297(c))—and so the presumption does not apply here. Perhaps that is a puzzling and unsatisfying result. But it is the one that Ninth Circuit precedent seems to require. C One final note. I am not alone in my confusion over how to interpret the Supreme Court’s instructions. As others have observed, the Supreme Court’s “somewhat varying pronouncements on presumptions in express preemption cases” have caused divisions in the circuits, in what Judge Wilkinson has described as “the great preemption wars.” Air Evac, 910 F.3d at 762 n.1 (collecting varying Supreme Court instructions); see also Dialysis, 938 F.3d at 258 (collecting circuit split). There is much confusion over how broadly to read Franklin’s passing remark—and what to do with the many cases, unmentioned by Franklin, where the presumption had applied. Some circuits (including ours) have read Franklin broadly to prohibit applying the presumption to express- preemption provisions in future cases. See Atay v. County of Maui, 842 F.3d 688, 699 (9th Cir. 2016); Dialysis Newco, Inc. v. Cmty. Health Sys. Grp. Health Plan, 938 F.3d 246,

CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 37

259 (5th Cir. 2019); Watson v. Air Methods Corp., 870 F.3d 812, 817 (8th Cir. 2017); EagleMed LLC v. Cox, 868 F.3d 893, 903 (10th Cir. 2017). Other courts, however, are not so sure—and the Third Circuit, at least, has read Franklin to permit applying the presumption where an express- preemption provision implicates an area of traditional state concern. See Shuker, 885 F.3d at 771 n.9; cf. Air Conditioning, 410 F.3d at 496 n.1. As inferior-court judges, we ultimately must address the important question about whether Franklin has spoken with sufficient clarity to abrogate existing Supreme Court and circuit precedent—or whether Franklin can be reconciled with at least some of those cases. See, e.g., Miller, 335 F.3d at 900 (abrogation of circuit precedent); Agostini, 521 U.S. at 237 (abrogation of Supreme Court precedent); Khan v. State Oil Co., 93 F.3d 1358, 1363 (7th Cir. 1996) (Posner, J.). While some circuits have given that issue careful attention, Dialysis, 938 F.3d at 259 n.11 (declining to “extend” a pre-Franklin circuit decision that rested on Travelers, but also declining to “abrogate[]” it), the question of Franklin’s abrogating reach remains unsettled—with significant implications for the vast and important areas of law where Congress has sought to extend federal supremacy. * * * We are duty-bound to apply binding precedents of the Supreme Court and the Ninth Circuit. Alas, those precedents “are not always clear, consistent, or coherent.” Separation of Church & State Comm. v. City of Eugene, 93 F.3d 617, 627 (9th Cir. 1996) (O’Scannlain, J., concurring). Here, I believe I am bound by our post-Franklin precedents to hold that the presumption is inapplicable to the express-preemption provision before us today. And for that reason, I join the

38 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY

panel’s opinion. But I remain concerned that this area of law is troubling and confused, with tensions in the Supreme Court’s precedents, splits in the circuits, and important practical questions unanswered. Greater clarity and further guidance from the Court on how to navigate preemption doctrine after Franklin would be most welcome.

BAKER, Judge, concurring:

I write separately to express my reservations about the California Restaurant Association’s standing and to explain my view of why the City of Berkeley’s Ordinance No. 7,672- N.S. (“Ordinance”) invades the core area preempted by the Energy Policy and Conservation Act (“EPCA”), 42 U.S.C. § 6297(c). I To have associational standing, an organization must establish that:

(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

Assoc. Gen. Contractors of Am., San Diego Chapter, Inc. v. Cal. Dep’t of Transp., 713 F.3d 1187, 1194 (9th Cir. 2013) (“AGC”). The second and third elements of this test are not in dispute here.

CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 39

As to the first element, an organization must establish that “a member suffers an injury-in-fact that is traceable to the defendant and likely to be redressed by a favorable decision.” Id. (citing Braunstein v. Ariz. Dep’t of Transp., 683 F.3d 1177, 1184 (9th Cir. 2012)). To do so, the organization must make “specific allegations establishing that at least one identified member had suffered or would suffer harm.” Id. (emphasis by the AGC court and quoting Summers v. Earth Island Inst., 555 U.S. 488, 498 (2009)). This “requirement of naming the affected members has never been dispensed with in light of statistical probabilities.” Id. (quoting Summers, 555 U.S. at 498–99).1 Thus, when an organizational plaintiff asserting associational standing failed at summary judgment to “identify any affected members by name” or “submit[ ] declarations by any of its members attesting to harm they have suffered or will suffer” from the challenged policy, we held that the organization could not rely on “the general allegations in its complaint asserting that its members would suffer harm” and dismissed the appeal for lack of standing. AGC, 713 F.3d at 1194–95. 2 Here, the standing allegations in the California Restaurant Association’s complaint identify no individual member injured by the challenged Berkeley Ordinance:

The CRA’s members include both restaurant owners and chefs. It has members that do

1 The only exception to this rule is “where all the members of the organization are affected by the challenged activity.” Summers, 555 U.S. at 499 (emphasis in original). 2 In Summers, the organizational plaintiff failed to identify any injured members at trial. See 555 U.S. at 500. 40 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY business in Berkeley, California, or who seek to do business in Berkeley, whose interests will be directly affected by this Ordinance. The CRA has one or more members who are interested in opening a new restaurant or in relocating a restaurant to a new building in Berkeley after January 1, 2020, but who cannot do so because of the Ordinance’s ban on natural gas. One or more members would seek to open or relocate a restaurant in a new building in Berkeley but for the ban on natural gas. . . . Under Summers and our decision in AGC, the Association’s failure to identify any specific member injured by the Ordinance could be fatal to its standing. See Summers, 555 U.S. at 499 (“In part because of the difficulty of verifying the facts upon which such probabilistic standing depends, the Court has required plaintiffs claiming an organizational standing to identify members who have suffered the requisite harm . . . .”) (emphasis added). 3 But AGC is not our last word on Summers. More recently, in National Council of La Raza v. Cegavske—as here, on appeal from dismissal at the pleading stage—we rejected the argument “that Summers, an environmental case 3 Relying on circuit precedent, Natural Resources Defense Council v. EPA, 735 F.3d 873 (9th Cir. 2013), the panel correctly holds that the Association’s allegations sufficiently allege a “credible threat” of a “probabilistic harm” for standing purposes at the pleading stage. Opinion at 12. In that case, which came to us on a petition for review of agency action, the organizational petitioner identified some of its injured members by attaching their declarations to its brief. See, e.g., No. 12- 70268, Dkt. No. 18-3. CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 41 brought under the National Environmental Policy Act, stands for the proposition that an injured member of an organization must always be specifically identified in order to establish Article III standing for the organization.” 800 F.3d 1032, 1041 (9th Cir. 2015). Instead, we stated that an organization asserting associational standing need not identify an injured member “[w]here it is relatively clear, rather than merely speculative, that one or more members have been or will be adversely affected by a defendant’s action, and where the defendant need not know the identity of a particular member to understand and respond to an organization’s claim of injury. . . .” Id. I think it is “relatively clear” that at least one of the Association’s members will be harmed by the challenged Ordinance, and the City doesn’t need to know the identity of that member to understand and respond to the Association’s complaint at the pleading stage. Thus, under Cegavske— which is in tension with Summers and our decision in AGC— the Association’s failure to identify in its complaint any member injured by the Ordinance does not defeat its standing. And quite apart from what we said in Cegavske, it’s unclear whether the requirement that an organizational plaintiff specifically identify injured members even applies at the pleading stage. As standing is an “indispensable part of the plaintiff’s case,” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992), it “must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Id. At the pleading stage, an organizational plaintiff need only assert “general factual allegations of injury [to its 42 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY members] resulting from the defendant’s conduct . . ., for on a motion to dismiss [a court] presume[s] that general allegations embrace those specific facts that are necessary to support the claim.” Id. (cleaned up and emphasis added). Here, because we presume that they are true, under Lujan the complaint’s general factual allegations of injury to the Association’s members arguably suffice even though those allegations identify no injured member. 4 But since Lujan, in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Court has “moved us away from a system of pure notice pleading.” In re Century Aluminum Co. Sec. Litig., 729 F.3d 1104, 1107 (9th Cir. 2013) (citing 5 Wright & Miller, Federal Practice and Procedure § 1216, at 71 (2012 supp.)). “In addition to providing fair notice,” id., a complaint “must allege ‘factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,’ ” id. (quoting Iqbal, 556 U.S. at 678). As to jurisdictional allegations, Iqbal and Twombly require that “the plaintiff must allege sufficient facts that, taken as true, ‘demonstrat[e] each element’ of Article III standing.” Jones v. L.A. Cent. Plaza LLC, 74 F.4th 1053, 1057 (9th Cir. 2023) (brackets in original) (quoting Spokeo,
4 AGC appears to imply as much. See 713 F.3d at 1195 (distinguishing Northeastern Fla. Chptr. of Assoc. Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 668–69 (2013), because it involved a verified complaint’s general allegations of injury to an organization’s members that “had to [be] accept[ed] . . . as true” at summary judgment because they were unchallenged, whereas AGC involved an unverified complaint’s general allegations of injury disputed at summary judgment) (emphasis added). Here, even though the Association’s general allegations of injury are disputed, we must accept them as true because we are at the pleading stage. CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 43 Inc. v. Robins, 578 U.S. 330, 338 (2016)); see also id. at 1056 n.1 (observing that circuit precedent holding that Iqbal does not apply in the Federal Rule of Civil Procedure 12(b)(1) context is no longer viable after Spokeo). In the wake of Spokeo, the continuing vitality of Cegavske is an open question. Although whether an organizational plaintiff asserting associational standing need specifically identify an injured member at the pleading stage is unsettled and at the center of a circuit split, 5 no such uncertainty exists at summary 5 Compare Draper v. Healey, 827 F.3d 1, 3 (1st Cir. 2016) (holding that an organizational plaintiff must name at least one injured member in its complaint); N.J. Physicians, Inc. v. President of U.S., 653 F.3d 234, 241 (3d Cir. 2011) (same); and S. Walk at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 184–85 (4th Cir. 2013) (same), with Cegavske, 800 F.3d at 1041, and Bldg. & Constr. Trades Council of Buffalo, N.Y. & Vicinity v. Downtown Dev., Inc., 448 F.3d 138, 145 (2d Cir. 2006) (stating, pre-Summers, that “the defendants cite to no authority—nor are we aware of any—that supports the proposition that an association must ‘name names’ in a complaint in order properly to allege injury in fact to its members”). Cf. Prairie Rivers Network v. Dynegy Midwest Generation, LLC, 2 F.4th 1002, 1010, 1011 (7th Cir. 2021) (holding that an organizational plaintiff failed to show associational standing at the pleading stage when it failed “to allege facts sufficient to show that at least one of its members could sue in their own right,” but reserving the question whether circuit precedent relieving such a plaintiff of the obligation to expressly identify an injured member “survives Summers”). If the Supreme Court ultimately resolves this conflict by holding that an organizational plaintiff alleging associational standing must identify at least one injured member in its complaint, such a plaintiff should ordinarily be given an opportunity to cure any failure to do so, because any such failure merely involves an incomplete “statement[ ] about jurisdiction that actually exists”—assuming there is such a member. 44 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY judgment. There, an organizational plaintiff “must set forth by affidavit or other evidence specific facts” substantiating the allegations of injury to its members. Lujan, 504 U.S. at 561 (cleaned up). “And at the final stage, those facts (if controverted) must be supported adequately by the evidence adduced at trial.” Id. (cleaned up). Thus, under Lujan, Summers, and our decision in AGC, at summary judgment or trial an organizational plaintiff is undoubtedly obligated to identify one or more of its injured members—among other “specific facts” detailing the nature of their asserted injury. 6 Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 831 (1989); see 28 U.S.C. § 1653 (“Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.”). Under this statute, a “district court . . . should . . . allow[ ] amendment if it [is] made aware of the pleading defect.” Snell v. Cleveland, Inc., 316 F.3d 822, 828 n.6 (9th Cir. 2002). A complaint with a jurisdictional pleading defect “should not [be] dismissed without leave to amend . . . unless it is clear, upon de novo review, that the complaint could not be saved by amendment.” Id. And even on appeal from dismissal at the pleading stage, such amendment should ordinarily be allowed. See id. at 828 (noting that this circuit “permit[s] amendment of complaints at the appellate level in order to correct defective jurisdictional allegations”). 6 If an organizational plaintiff asserting associational standing neglects to identify an injured member at summary judgment or trial, it thereby fails to carry an element of its “burden of proof.” Lujan, 504 U.S. at 561. In that instance, 28 U.S.C. § 1653 appears to have no application, because it “speaks of amending ‘allegations of jurisdiction,’ ” Newman- Green, 490 U.S. at 831 (emphasis in original), not curing wholesale failures of proof. Cf. Summers, 555 U.S. at 500 (holding that supplementation of the district court record with affidavits from the organization’s members to establish standing was not permitted “in the circumstances here: after the trial is over, judgment has been entered, and a notice of appeal has been filed”) (emphasis in original). CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 45 II Justice Scalia famously noted—in the context of the Employee Retirement Income Security Act of 1974 (ERISA)’s express preemption clause, 7 which employs broad “related to” language materially similar to EPCA’s, 8 see Lamar, Archer & Cofrin, LLP v. Appling, 138 S. Ct. 1752, 1759 (2018) (equating “ ‘[c]oncerning’ with ‘relating to’ ”); Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992) (defining “related to” as, among others, “to have bearing or concern”) (quoting Black’s Law Dictionary 1158 (5th ed. 1979))—that “applying the ‘relate to’ provision according to its terms was a project doomed to failure, since, as many a curbstone philosopher has observed, everything is related to everything else.” Cal. Div. of Labor Standards Enf’t v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 335 (1997) (Scalia, J., concurring). Thus, the breadth of EPCA’s preemption provision, like ERISA’s, “does not mean the sky is the limit.” Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 260 (2013). For that reason, EPCA preemption is unlikely to reach a host of state and local regulations that incidentally impact “the quantity of [natural gas] directly consumed by a [covered] product at point of use.” 42 U.S.C. § 6291(4).
7 David Santana Ortiz & Mark Allen Bernstein, RAND, Measures of residential energy consumption and their relationships to DOE policy xiii–xiv, 6–7 (1999). 8 Id.; see also 144 Cong. Rec. S12706–07 (Oct. 20, 1998) (letter from senators explaining that DOE currently uses a “point of use” standard and that when EPCA was enacted in 1975, Congress and the President “wisely rejected” an approach to measuring energy use that would account for “exogenous factors like ‘total fuel cycle’ costs, emissions and externalities”). 58 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY natural gas, removing its impurities, and transporting it to the location of the stove. 9 Congress included the term “point of use” in the definition of “energy use” not to protect “the end-user’s ability to use installed covered products at their intended final destinations,” as the panel opinion asserts, but instead to give a technical instruction to DOE and manufacturers. Congress was relying on the technical meaning of the term to convey that the “energy use” of an appliance under EPCA does not include indirect energy consumption upstream in the supply chain. That instruction was needed because other regulators at the time did consider such indirect energy consumption (“source energy”) when adopting energy standards. See Energy Resources Conservation and Development Commission, Staff Report, Energy Conservation Standards for Nonresidential Buildings 5 (May 27, 1977) (report from California’s Energy Resources Conservation and Development Commission explaining that when setting certain standards, the Commission was required by a state statute to “tak[e] into account power plant and distribution losses,” not just “energy delivered to the building boundary”). Industry and regulatory sources consistently use the term “point of use” in this technical sense, and many expressly recognize that EPCA does so as well. The following list illustrates a few examples: • A National Academy of Sciences study, commissioned by Congress, explained that “site (point-of-use)” measures account for only the energy consumed at 9 See Ortiz & Bernstein, supra note 7, at 6. CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 59 the site “based on specified test procedures,” while “source (full-fuel- cycle) measures” include site energy plus the energy consumed in the “extraction, processing, and transport” of fuels to the site. The study further explained as to EPCA that “[c]urrent DOE standards for the energy consumed by operating individual appliances call for measurement at the site (point of use) of the appliance.” 10 • In a notice of proposed policy, DOE explained that, consistent with the National Academy of Sciences study, it “uses point-of-use measures of energy consumption” in administering EPCA. It contrasted “point-of-use” measures with another measure that accounted for “energy consumed on-site, plus energy losses that occur in the generation, transmission, and distribution of electricity.” 11
10 National Research Council, Review of Site (Point-of-Use) and Full- Fuel-Cycle Measurement Approaches to DOE/EERE Building Appliance Energy-Efficiency Standards: Letter Report 1, 3–4, 6 (2009); Energy Policy Act of 2005, Pub. L. No. 109-58, § 1802, 119 Stat. 594, 1123 (2005) (commissioning the study). 11 Energy Conservation Program for Consumer Products and Certain Commercial and Industrial Equipment: Public Meeting and Availability of Statement of Policy for Adopting Full-Fuel-Cycle Analyses Into Energy Conservation Standards Program, 75 Fed. Reg. 51,423, 51,424 (Aug. 20, 2010). 60 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY • A study prepared for the American Gas Foundation stated that the definition of “energy use” under EPCA refers to site energy, rather than source energy (which the study referred to as “real energy”). The study continued, “[F]ederal energy efficiency policies are based upon improving energy efficiency as measured at the point of usage rather than considering the full fuel cycle of energy and natural resources.” 12 • In an advance notice of proposed rulemaking, DOE explained that “EPCA and [the National Appliance Energy Conservation Act] do not permit the regulation of source energy” because those statutes “specify that efficiency must be based on the energy consumption at the point of use.” 13 • In a notice of proposed rulemaking, the Federal Energy Administration (“FEA”) stated that, in considering the impact of potential energy conservation measures 12 American Gas Foundation, Public Policy and Real Energy Efficiency i, v, 7, 14 (2005); see also id. at 50 (stating that the National Appliance Energy Conservation Act, which amended EPCA to establish efficiency standards for appliances, “use[s] site energy as the basis for qualifying appliances”). 13 Energy Conservation Program for Consumer Products: Energy Conservation Standards for Residential Furnaces and Boilers, 69 Fed. Reg. 45,420, 45,426 (July 29, 2004) (citing § 6291(4) (the definition of energy use)). CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 61 on petroleum and natural gas consumption at specific buildings and industrial sites, it would look only to energy consumption “at the point of use on site,” rejecting an approach that would also look to the fuel needed to generate electricity at the power plant level. 14 • In a notice of a final rule, the FEA contrasted a technical measure that represented the energy content of a unit of electricity at “the point of use” with another technical measure that took into account the energy lost in the process of generating that electricity and transmitting it to the point of use. 15 Textualist principles require us to consider such sources when interpreting a technical term, rather than interpreting the term solely based on colloquial meaning. See Scalia & Garner, Reading Law 69, 73; Corning Glass Works v. Brennan, 417 U.S. 188, 201 (1974) (“[W]here Congress has used technical words or terms of art, ‘it [is] proper to explain them by reference to the art or science to which they [are] appropriate.’” (quoting Greenleaf v. Goodrich, 101 U.S. 278, 284 (1880))); Van Buren, 141 S. Ct. at 1658 n.7 (explaining that the Court’s narrow interpretation of the term “access” in the Computer Fraud and Abuse Act of 1986 “tracks the specialized meaning of ‘access’ in the computer context”).
14 Energy Audits, 42 Fed. Reg. 20,012, 20,013 (Apr. 15, 1977). 15 Federal Energy Administration, 42 Fed. Reg. 33,158, 33,159 (June 29, 1977). 62 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY These technical sources demonstrate that “point of use” does not refer to the place where an appliance is used; it refers to a technical way of measuring energy consumption. Given this technical meaning, the fact that Berkeley’s ordinance prevents some consumers from using a natural gas appliance at what we might colloquially refer to as the “point of use” does not affect the “energy use” of those appliances within the meaning of EPCA. C. The preemption provision’s inclusion of the modifier “concerning” does not bring the ordinance within the provision’s scope. See § 6297(c) (“[N]o State regulation concerning the energy efficiency [or] energy use . . . of [a] covered product shall be effective.” (emphasis added)). To be sure, the word “concerning” expands the scope of the preemption provision beyond regulations that directly set energy efficiency or energy use standards. The statute as a whole makes clear that indirect regulations may be preempted if they aim to require consumers to use products with higher efficiency standards than those prescribed by DOE and may ultimately cause manufacturers to change the design of their products to meet those higher standards. For instance, EPCA contemplates preempting building codes that set building-wide energy efficiency standards that can only be met through the use of hyper-efficient appliances. See § 6297(f). Because the terms “energy use” and “energy efficiency” are product-specific, a preemption provision without the word “concerning” might not preempt building codes that set standards by, for example, capping overall energy consumption per apartment or per building. The Supreme Court has said that “concerning” means the same thing as “relating to,” Lamar, Archer & Cofrin, LLP v. CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 63 Appling, 138 S. Ct. 1752, 1759 (2018), and it has recently counseled against reading such words too broadly, Dubin v. United States, 599 U.S. 110, 119 (2023). The Court explained that “[i]f ‘relate to’ were taken to extend to the furthest stretch of its indeterminacy, then for all practical purposes there would be no limits, as really, universally, relations stop nowhere.” Id. (cleaned up) (quoting N.Y. State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995)). The Court has similarly cautioned against “‘uncritical literalism’ that would make pre-emption turn on ‘infinite connections.’” Egelhoff v. Egelhoff, 532 U.S. 141, 147 (2001) (quoting N.Y. State Conf. of Blue Cross & Blue Shield Plans, 514 U.S. at 656). Here, “concerning” cannot transform the meaning of “energy use.” Berkeley’s ordinance obviously concerns natural gas, and natural gas is a type of energy. But to say that the ordinance therefore concerns “energy use,” as defined by EPCA, is to engage in “uncritical literalism.” Berkeley did not adopt its ordinance to require consumers to use appliances with higher efficiency standards than those prescribed by DOE. The ordinance was intended to slow climate change and reduce public safety hazards and health risks associated with the combustion of natural gas. Berkeley Mun. Code § 12.80.010(B) (finding that the ordinance was necessary to address sea level rise and increased wildfires caused by climate change), (C) (finding that the ordinance was necessary to address “asthma and other health conditions associated with poor indoor and outdoor air quality [that are] exacerbated by the combustion of natural gas”). Transitioning from fossil fuels to non- greenhouse-gas-producing energy sources may not decrease total energy consumption. Indeed, some gas appliances are more efficient than electric appliances, so the ordinance may 64 CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY have the indirect effect of increasing energy consumption in new buildings in some circumstances. See, e.g., 10 C.F.R. § 430.32(e)(1)(ii) (setting a more stringent standard for gas furnaces than for electric furnaces). The ordinance also gives manufacturers no reason to change the design of their natural gas products to meet standards higher than those prescribed by DOE. It simply directs consumers to one set of products with one set of federal efficiency standards (electric appliances) over another set of products with different federal efficiency standards (gas appliances). See, e.g., § 6295(e)(1)(A), (C) (setting one standard for gas water heaters and another for electric water heaters). III. EPCA’s history, text, and structure all show that the Berkeley ordinance is not preempted because it does not affect “energy use” within the meaning of the statute. The panel opinion makes much of the notion that a state cannot do indirectly what it could not do directly. But that notion is beside the point because EPCA would not preempt a direct prohibition on natural gas appliances enacted for the reasons Berkeley had here. Even such a direct prohibition would not affect the “energy use” of any appliance. Berkeley adopted its ordinance to address an urgent problem of the highest importance. The panel opinion unnecessarily strikes down the ordinance by entirely misinterpreting a narrow preemption provision about appliance standards. I hope other courts will not repeat the panel opinion’s mistakes. I respectfully dissent from the denial of rehearing en banc. CALIFORNIA RESTAURANT ASS’N V. CITY OF BERKELEY 65 BERZON, Circuit Judge, with whom PAEZ and FLETCHER, Circuit Judges, join, respecting the denial of rehearing en banc: I agree with Judge Friedland’s dissent from the denial of rehearing en banc, including her explanation as to why this is the type of case in which dissent from denial of rehearing en banc is appropriate. See Dissent from Denial of Rehearing En Banc at 50 n.1.