Ninth Circuit panel overturns Berkeley ban on gas hookups

[NewYorkExpress]

https://news.bloomberglaw.com/environment-and-energy/berkeley-ban-on-natural-gas-hookups-tossed-by-ninth-circuit

A California city’s ordinance banning natural gas hookups in new buildings was toppled Monday by the Ninth Circuit, which said that the ordinance is preempted by federal law.

The panel’s decision was a win for the California Restaurant Association, which argued the Berkeley, Calif., ordinance was preempted by the Energy Policy and Conservation Act. The city said the ordinance would help control emissions and “eliminate obsolete natural gas infrastructure.” But it effectively amounted to a ban on natural gas appliances, the CRA told the US Court of Appeals for the Ninth Circuit.

“Berkeley can’t bypass preemption by banning natural gas piping within buildings rather than banning natural gas products themselves,” the panel wrote.

The US District Court for the Northern District of California ruled in July 2021 that it couldn’t read the EPCA to preempt the ordinance when the ordinance “does not directly regulate either the energy use or energy efficiency of covered appliances.” Berkeley’s ban on natural gas infrastructure in new buildings is “clearly outside the preemption provision of the EPCA,” the court said.

The justice who wrote the primary opinion, Patrick Bumatay was a Trump appointee, while the other two concurring justices were a Reagan appointee (Diarmuid O'Scannlain) and another Trump appointee (M.Miller Baker).

This one almost certainly will be overturned by the full Ninth Circuit next, and who knows if the Supreme Court takes this one.

[Donerail]

The justice who wrote the primary opinion, Patrick Bumatay was a Trump appointee, while the other two concurring justices were a Reagan appointee (Diarmuid O'Scannlain) and another Trump appointee (M.Miller Baker).

This one almost certainly will be overturned by the full Ninth Circuit next, and who knows if the Supreme Court takes this one.

The Ninth Circuit does not take a ton of cases en banc (certainly not every case that happens to draw a conservative panel), and its unique en banc procedure means that it is very possible to draw a conservative-leaning en banc panel.

[I spent the winter writing songs about getting better]

The justice who wrote the primary opinion, Patrick Bumatay was a Trump appointee, while the other two concurring justices were a Reagan appointee (Diarmuid O'Scannlain) and another Trump appointee (M.Miller Baker).

This one almost certainly will be overturned by the full Ninth Circuit next, and who knows if the Supreme Court takes this one.

The Ninth Circuit does not take a ton of cases en banc (certainly not every case that happens to draw a conservative panel), and its unique en banc procedure means that it is very possible to draw a conservative-leaning en banc panel.

How does its procedure different from other circuits?

[President Punxsutawney Phil]

The justice who wrote the primary opinion, Patrick Bumatay was a Trump appointee, while the other two concurring justices were a Reagan appointee (Diarmuid O'Scannlain) and another Trump appointee (M.Miller Baker).

This one almost certainly will be overturned by the full Ninth Circuit next, and who knows if the Supreme Court takes this one.

The Ninth Circuit does not take a ton of cases en banc (certainly not every case that happens to draw a conservative panel), and its unique en banc procedure means that it is very possible to draw a conservative-leaning en banc panel.

How does its procedure different from other circuits?

The Ninth uses blank draw to get ten justices at random, essentially.
It's too big to be able to operate like the others.

[Donerail]

The justice who wrote the primary opinion, Patrick Bumatay was a Trump appointee, while the other two concurring justices were a Reagan appointee (Diarmuid O'Scannlain) and another Trump appointee (M.Miller Baker).

This one almost certainly will be overturned by the full Ninth Circuit next, and who knows if the Supreme Court takes this one.

The Ninth Circuit does not take a ton of cases en banc (certainly not every case that happens to draw a conservative panel), and its unique en banc procedure means that it is very possible to draw a conservative-leaning en banc panel.

How does its procedure different from other circuits?

The Ninth has twenty-nine active judgeships, so the en banc panel cannot be the entire court (as it can on, f/x, the Tenth, which only has twelve active judgeships). Instead, the en banc panel consists of the Chief Judge, who sits on every en banc panel, and ten randomly chosen circuit judges.

Among active judges, the Ninth is currently only 16-13 in terms of D-R appointees, so that random ten-judge sample can be R-majority pretty easily. For example, in Friends of Alaska Nat’l Wildlife Refuges v. Haaland, the en banc panel is Chief Judge Murguia (an Obama appointee), Judge Christen (an Obama appointee), three Biden appointees (Koh, Sung & Desai), and six Trump appointees (Bennett, Nelson, Forrest, Bade, Bress, Bumatay), or 6-5 R overall.

[Ferguson97]

Whatever merits of the ban itself, this seems like a bad policy. I don't really buy their argument here.

[Vosem]

Whatever merits of the ban itself, this seems like a bad policy. I don't really buy their argument here.

I kind of agree with you here, honestly. It's perfectly plausible that Bumatay reached the correct decision on the law, but preemption jurisprudence is a tangled web of justifications for state power gradually being reworked into a tangled web of justifications against state power and it should probably get a serious rethink from SCOTUS. (My honest opinion is that the Supremacy Clause was never meant to disallow state legislatures from legislating on topics that Congress has also legislated on, so long as the laws did not contradict. I think Hines v. Davidowitz was frankly a very bad case which meaningfully weakened separation of powers and small-d democracy in the United States.)

On a different note, because this is a politics forum, this panel is interesting for being so high-profile. O'Scannlain is way over the hill now but was once a very prominent conservative legal leader and was a SCOTUS finalist for Reagan/Bush Sr., while Bumatay is a very prominent rising star who's likely to be a SCOTUS finalist for whoever the next GOP President is. (He is a very strong contender for both first Asian-American and first openly gay member of SCOTUS.) While I know that they're both active on the Ninth Circuit now (...well, O'Scannlain has taken senior status, but he still hears a full caseload), they belong to profoundly different eras in my mind -- O'Scannlain to the 1980s and Bumatay to the future -- so I found seeing them on the same panel to be kind of strange.

[NewYorkExpress]

Whatever merits of the ban itself, this seems like a bad policy. I don't really buy their argument here.

I kind of agree with you here, honestly. It's perfectly plausible that Bumatay reached the correct decision on the law, but preemption jurisprudence is a tangled web of justifications for state power gradually being reworked into a tangled web of justifications against state power and it should probably get a serious rethink from SCOTUS. (My honest opinion is that the Supremacy Clause was never meant to disallow state legislatures from legislating on topics that Congress has also legislated on, so long as the laws did not contradict. I think Hines v. Davidowitz was frankly a very bad case which meaningfully weakened separation of powers and small-d democracy in the United States.)

On a different note, because this is a politics forum, this panel is interesting for being so high-profile. O'Scannlain is way over the hill now but was once a very prominent conservative legal leader and was a SCOTUS finalist for Reagan/Bush Sr., while Bumatay is a very prominent rising star who's likely to be a SCOTUS finalist for whoever the next GOP President is. (He is a very strong contender for both first Asian-American and first openly gay member of SCOTUS.) While I know that they're both active on the Ninth Circuit now (...well, O'Scannlain has taken senior status, but he still hears a full caseload), they belong to profoundly different eras in my mind -- O'Scannlain to the 1980s and Bumatay to the future -- so I found seeing them on the same panel to be kind of strange.

A Republican President nominating Bumatay to the Supreme Court would instantly cost their party the next election. Bumatay's sexuality is a bigger negative to the base than his conservative bona fides is a positive.

[Vosem]

Whatever merits of the ban itself, this seems like a bad policy. I don't really buy their argument here.

I kind of agree with you here, honestly. It's perfectly plausible that Bumatay reached the correct decision on the law, but preemption jurisprudence is a tangled web of justifications for state power gradually being reworked into a tangled web of justifications against state power and it should probably get a serious rethink from SCOTUS. (My honest opinion is that the Supremacy Clause was never meant to disallow state legislatures from legislating on topics that Congress has also legislated on, so long as the laws did not contradict. I think Hines v. Davidowitz was frankly a very bad case which meaningfully weakened separation of powers and small-d democracy in the United States.)

On a different note, because this is a politics forum, this panel is interesting for being so high-profile. O'Scannlain is way over the hill now but was once a very prominent conservative legal leader and was a SCOTUS finalist for Reagan/Bush Sr., while Bumatay is a very prominent rising star who's likely to be a SCOTUS finalist for whoever the next GOP President is. (He is a very strong contender for both first Asian-American and first openly gay member of SCOTUS.) While I know that they're both active on the Ninth Circuit now (...well, O'Scannlain has taken senior status, but he still hears a full caseload), they belong to profoundly different eras in my mind -- O'Scannlain to the 1980s and Bumatay to the future -- so I found seeing them on the same panel to be kind of strange.

A Republican President nominating Bumatay to the Supreme Court would instantly cost their party the next election. Bumatay's sexuality is a bigger negative to the base than his conservative bona fides is a positive.

It would make no difference; Trump has already supported gay marriage in both of his campaigns and no one cared. The whole issue fell off. (It would be far more relevant that Bumatay is Asian-American and distinctly interprets his support for American conservatism as downstream of his Asian-American identity.)

Also, Bumatay isn't, like, a shoo-in pick or whatever; I think he's in the Top Ten likeliest names but others are ahead of him. (If you want a single name, it would be Allison Jones Rushing.) I also suspect that he's an extremely natural name to succeed Thomas specifically, as an ethnic minority who has spent his career fighting progressive attitudes towards race, and that he would be less likely to succeed a Justice who isn't Thomas, although still possible.

[politicallefty]

Also, Bumatay isn't, like, a shoo-in pick or whatever; I think he's in the Top Ten likeliest names but others are ahead of him. (If you want a single name, it would be Allison Jones Rushing.) I also suspect that he's an extremely natural name to succeed Thomas specifically, as an ethnic minority who has spent his career fighting progressive attitudes towards race, and that he would be less likely to succeed a Justice who isn't Thomas, although still possible.

People overestimate age sometimes as the major factor. Anyone 55 and under is probably good for consideration. Unless Republicans get locked out for the next two presidential terms, I think James Ho gets it. He's certainly been trying to get his name out there. He hits some big checkmarks for Republicans (archconservative, Texan, Asian, JD outside of HYS).

[Vosem]

Also, Bumatay isn't, like, a shoo-in pick or whatever; I think he's in the Top Ten likeliest names but others are ahead of him. (If you want a single name, it would be Allison Jones Rushing.) I also suspect that he's an extremely natural name to succeed Thomas specifically, as an ethnic minority who has spent his career fighting progressive attitudes towards race, and that he would be less likely to succeed a Justice who isn't Thomas, although still possible.

People overestimate age sometimes as the major factor. Anyone 55 and under is probably good for consideration. Unless Republicans get locked out for the next two presidential terms, I think James Ho gets it. He's certainly been trying to get his name out there. He hits some big checkmarks for Republicans (archconservative, Texan, Asian, JD outside of HYS).

Ho turns 55 in 2028, and I think I’d be comfortable saying that he will be too old for any Republican elected at a cycle after 2024, while Bumatay remains a live option for a 2028/2032 winner. Also, even besides age, Ho seems, based on images I’ve seen of him, like a man who struggles with weight, while most recent SCOTUS picks have been in visibly good shape for their ages — which Bumatay also is.

(Ho seems likelier to get picked if the Republican President is deliberately trying to pick someone controversial, but if that’s the case I think he’d have strong competition from Lawrence VanDyke — who interestingly is older. Also a number of politicians with legal degrees. VanDyke is particularly an underrated older possibility if DeSantis wins, IMO, since he’s a close personal friend of Adam Laxalt who is a close personal friend of DeSantis. VanDyke is also a strong possibility for eventual Cabinet service under a GOP President, like Merrick Garland.)