NEM 3.0 Decision: 1st Appellate District Affirms Original Opinion in Center for Biological Diversity v. Public Utilities Commission

Posted on March 10, 2026 by Joe Kaatz

(Note: Original Draft was updated and edited on 3/10/26 and 3/11/26)

On March 9, 2026, the First Appellate District affirmed in full the CPUC’s D.22-12-026 decision in Center for Biological Diversity v. Public Utilities Commission (Case No. A167721). The First Appellate District original opinion affirming the CPUC decision was appealed to the California Supreme Court, which issued an opinion  in August 2025 not on the questions specific to the CPUC’s action on NEM 3.0’s net billing tariff and related matters (See CPUC D. 22-12-056; See Proceeding Docket for R. 20-08-020), but on how appellate courts are to apply the judicial review standards found in Public Utilities Code §§ 1757 and 1757.1 to the CPUC. The California Supreme Court remanded the case to the First Appellate District, which again affirmed the CPUC decision for the second time but pursuant to the Yamaha standard the California Supreme Court found was the correct standard of review (you can read my analysis on this opinion here and other blogs about this case here). The following discusses this and other appellate case updates.

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Update on Petitions Against the CPUC Since August 2025

Posted on February 3, 2026 by Joe Kaatz
Judge’s gavel, Themis sculpture and collection of legal books on the brown background.

(Updated 3/3/26 at 3pm with additional cases)

This post is an update on previous posts (here and here) related to the remanded petition for the Center for Biological Diversity v. Public Utilities Commission of the State of California in the First Appellate District (Case No. A167721).

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What Questions Will be Answered by the Appeals Court as it Applies a Less Deferential Standard to the CPUC in its Review of the CPUC’s Net Billing Tariff Decision

Posted on December 4, 2025 by Joe Kaatz

This is a follow up to my previous blog post on the California Supreme Court’s Opinion that remitted the Center for Biological Diversity v. CPUC (A167721; S283614) to the 1st Appellate District. With supplemental and responsive briefing filed on November 21, 2025 and supplemental responsive briefing due on January 12, 2026, many questions remain related to net billing tariff (NBT) and how it will shape future cases involving a less deferential judicial review standard when CPUC actions are challenged under Public Utilities Code §§ 1757 and 1757.1.

This post will look at two potential inquiries the Court of Appeals may make as it reviews the supplemental briefs and responses:

  • How will an appellate court apply the Yamaha framework to this case and what can be gleaned for future petitions?
  • Does Public Utilities Code § 1757 or 1757.1 apply to this case and what guidance will this court provide on petitions under these code sections?
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The Recent California Supreme Court Opinion in Center for Biological Diversity v. Public Utilities Commission Upends Decades of Statutory Interpretation Deference to CPUC

Posted on September 2, 2025 by Joe Kaatz
Judge’s gavel, Themis sculpture and collection of legal books on the brown background.
Judge’s gavel, Themis sculpture and collection of legal books on the brown background.

On August 8, 2025, the California Supreme Court issued an opinion (Center for Biological Diversity v. Public Utilities Commission, S284614 (August 7, 2025)) on a single issue of law specific to the degree of deference afforded to the California Public Utilities Commission (CPUC) in interpreting the Public Utilities Code.  Specifically, “whether the highly deferential approach of Greyhound continues to apply…” in light of the Legislature’s acts to revise and expand judicial review of CPUC actions as part of the deregulation process of the 1990s under Public Utilities Code §§ 1757 and 1757.1. Previously, the legal analysis of the 1968 Greyhound Lines, Inc. v. Public Utilities Commission was used to grant highly deferential treatment to CPUC decisions at the superior court and appellate levels shielding the CPUC from scrutiny of how it interprets its own statutes, a long held but striking difference from how all other executive branch regulatory agencies are scrutinized by courts because of its constitutional authority and regulation of investor owned public utilities (electric, natural gas, etc.). This opinion will have far-reaching impacts on litigation against the CPUC and will change CPUC administrative adjudications that are now subject to heightened judicial review. This post, the first of two on this topic, will discuss this opinion.

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EPCA Preemption: What are its limits and How May it Harmonize with the Direct Regulation of Emissions from Appliances

Posted on November 13, 2024 by Joe Kaatz
Efficiency energy rating concept. Ecological house with low consumption on renovation with insulation. Sustainable development and eco house
Efficiency energy rating concept. Ecological house with low consumption on renovation with insulation.Sustainable development and eco house

This is Blog #4 on this this topic that will look at two issues.  First, where is the line between what is preempted and what is not under the Energy Policy and Conservation Act (EPCA)? This will look at rules of thumb and focus on examples at the state and local level.  Second, when local, state, or federal authority to regulate emissions from appliances is used, how is it harmonized with the EPCA and are there potential conflicts?  This will look at what authority exists, how it has been used, and discuss the legislative record of the preemption language of the EPCA to discuss how it may interact with the Clean Air Act and state and local authority over air pollution and greenhouse gas (GHG) emissions from appliances. It will examine authority and approaches used by the City of New York, State of California, local air district regulators in California, and two local governments in California.

You can access the Berkeley Decision blog, EPCA Blog # 1 on the lawsuit against the City of Denver and State of Colorado, EPCA Blog #2 on the building performance standards adopted by the City of Denver and State of Colorado, and EPCA Blog #3 on the what the limited case law can tell us about the EPCA and to extent of its preemption.

You can access all of EPIC’s blogs here.

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Legislative Update: End of 2024 Legislative Session

Posted on October 2, 2024 by Joe Kaatz

The deadline for the Governor to sign or vetoes bills passed on September 30th. The Governor has called an extraordinary session where nine bills were introduced. So far, ABX2-1 and ABX2-9 appear to be active while the other seven may or may not move forward. These are primarily focused on oil and gas and refined fuel supply issues.

This session saw major priorities sidelined, withheld, or amended because of the state of the budget. Overall, there were many issues addressed, including:

-CEQA streamlining or exemption bills;

– continued action on pruning the natural gas distribution system;

-support for hydrogen development;

-streamlining and support for transmission development including the deployment of alternative technologies to increase capacity for existing transmissions;

-several bills addressing tracking and studying utility costs and rates paid by ratepayers.

There were also notable vetoes around virtual net metering for multi-family buildings and schools as well as other dealing with budget or administrative limits.

The full list can be accessed here.

Posted in Air Pollution, All-electric, APCD, CEQA, CPUC, Energy, GHG targets, GHGs, Greenhouse Gas, Legislation, Renewable Energy, Transportation, Vehicle Miles Traveled, VMT | Tagged , , , , , , , | Leave a comment

Blog # 3 on EPCA Litigation: What can the Limited Case Law Tells Us About Interpreting the EPCA?

Posted on September 25, 2024 by Joe Kaatz
Hot Air balloons float through the sky over the Rio Grande River near Albuquerque, New Mexico, as part of the Albuquerque International Balloon Fiesta.

This blog will continue the discussion on the EPCA specific to two past, unpublished EPCA cases that predate the litigation against the City of Berkeley. The first is a building performance regulation that applied to both existing and new construction in which the City of Albuquerque was enjoined from implementing its code because of EPCA preemption. Second, the State of Washington successfully defended a facial constitutional challenge against its adopted statutory building performance standard for new construction. Both cases evaluated a pre-trial record under the EPCA preemption language of 42 U.S.C. § 6297 that sought injunctions against the adopted building code of each jurisdiction. The different outcomes of these cases can be explained by the type of building energy standard adopted, the then existing case law used to analyze the record by the court, and changes to preemption case law that informed the Berkeley decision.

This blog will then look at how a change in express preemption precedent was essential to the City of Berkeley 9th Circuit opinion and has spurred similar lawsuits against the City of New York and New York State under the same narrative and causes of action as the litigation against the City of Denver and State of Colorado. Discussions of this broader view of preemption will be the focus of a future blog.

You can access the Berkeley Decision blog, EPCA Blog # 1 on the lawsuit against the City of Denver and State of Colorado, and EPCA Blog #2 on the building performance standards adopted by the City of Denver and State of Colorado.

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Blog # 2 on EPCA Preemption: Benchmarking as the Basis of Building Performance Standards: What Did the State of Colorado and City of Denver Implement?

Posted on August 21, 2024 by Joe Kaatz
City skyline of Denver Colorado downtown with snowy Rocky Mountains and the City Park Lake.

This is the second blog post in this series looking at the requirements that the State of Colorado and City of Denver adopted to implement building performance standards (Blog # 1 can be accessed here). It will review the benchmarking requirements that determine the scope of the building performance standard through “covered building” definitions that use building type and square footage as parameters. This blog will raise issues on whether and how the Energy Policy and Conservation Act (EPCA) applies to these requirements.

Energy benchmarking is the cornerstone of these regulations to address the energy use and the consequent GHG emission of existing buildings. There is no prohibition to require benchmarking under the EPCA. The following describes the benchmarking requirements.

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Blog #1 on Energy Policy Conservation Act (“EPCA”) Preemption Lawsuit filed Against State of Colorado and City of Denver

Posted on August 7, 2024 by Joe Kaatz
“Aerial view Denver, Colorado” by Carol M Highsmith/ CC0 1.0

On April 22, 2024, the Colorado Apartment Association, Apartment Association of Metro Denver, Colorado and Lodging Association, Inc., and NAIOP Colorado Chapter filed a complaint in federal district court against the State of Colorado and City of Denver challenging building performance standard regulations designed to decrease energy use and consequent GHG emissions in new and existing covered buildings (Colorado Apartment Association, et. all v. Ryan, et. all, Case No. 1:24-cv-01093 (Filed 4/22/24). This litigation follows the same legal challenge used against the City of Berkeley that overturned the City of Berkeley’s new construction natural gas plumbing ban in the 9th Circuit alleging violation of the Energy Policy Conservation Act (“EPCA”) (previous blogs on this issue can be accessed here). Importantly, the 9th Circuit opinion is only persuasive authority in the 10th Circuit and is not binding on the District Court for the District of Colorado. This may result in a different outcome both because of the circuit and because Colorado and the City of Denver took a different approach from the City of Berkeley.

This is the first in a series of blogs that will shed light on several EPCA questions specific to this line of litigation:

  • Does the EPCA preempt all state and local authority to regulate energy use (City of Denver) and GHG emissions (State of Colorado) of buildings by setting performance standards for new and existing buildings?
    • And if not, what is the limit of building performance standards under the EPCA for both new and existing buildings? 
  • Finally, what is the extent of EPCA “concerning energy efficiency, energy use, or water use of a covered product” preemption over state and local government authority to regulate GHG emissions from sources?
    • Is there a distinction between criteria and toxic pollutants and GHG emissions?

This will focus on the complaint itself to then discuss the Colorado statutory language creating the benchmarking and energy reduction regulations and the City of Denver’s adoption of standards that apply across more buildings. This blogs will give an overview of the statutory and regulatory differences between California and Colorado to discuss the litigation approach. Future blogs will discuss how these questions shape local government action in California and look at the only two other unpublished cases on the topic of building performance standards and the EPCA.

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City of Berkeley Files Petition for Rehearing in CRA v. City of Berkeley 9th Circuit Case Regarding Authority to Ban Natural Gas Plumbing in New Construction

Posted on June 1, 2023 by Joe Kaatz

As the previous post discussed here, the City of Berkeley was granted until 5/31/23 to file a petition for rehearing en banc to the full 9th Circuit. Yesterday, the City of Berkeley filed its Petition for Rehearing En Banc.

This sets in motion a period for the 9th Circuit to review and grant or deny rehearing that can range from 21 days to more than 150 days depending on procedural action. To grant rehearing, a majority of the 29 sitting 9th Circuit Judges must vote for rehearing. If granted, the three judge panel opinion issued on 4/17/ 23 is rescinded with the en banc court taking full control of the case to issue a new opinion. The case would then go before a “limited en banc court” composed of 11 judges. The limited en banc court is composed of the chief judge and 10 judges selected by lot There is no defined time frame for the en banc to issue a new opinion.

The docket for this case can be accessed using Pacer. system to track the docket (Case No. 21-16278) and obtain filings. I am also happy to email the petition to any one interested (kaatzj-11@sandiego.edu).

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