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?
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.
Center for Biological Diversity v. Public Utilities Commission: What was Challenged and What Changed?
The case before the court stems from a challenge to the CPUC’s December 12, 2023 adoption of the net billing tariff (NBT), often referred to as the net energy metering (NEM) 3.0 decision (See CPUC D. 22-12-056; See Proceeding Docket for R. 20-08-020). NBT differs from previous net energy metering decisions and tariffs by significantly decreasing the value of exported energy from customer generation, amongst other changes, by compensating exported energy at the avoided cost instead of the retail cost of electricity (See CPUC NEM Webpage). NBT went into effect on April 15, 2023, meaning that all interconnected distributed energy resources (e.g., solar, solar/batteries, etc.), have taken service on the NBT since then. Between April 15, 2025 and the end of May 2025, per data reported through the California Solar DG Stats website, this potentially impacts approximately 35,145 systems in San Diego Gas & Electric (SDG&E) territory, 79,214 systems in Southern California Edison (SCE) territory, and 75,886 systems in Pacific Gas & Electric (PG&E) territory. The case is now remanded to the Court of Appeals under a new standard of review of CPUC action. This may or may not result in a full or partial overturning of D. 22-12-056.
Past to the Present: Greyhound to Yamaha
What is notable about this opinion is that petitioners led by Center for Biological diversity sought the specific review of whether the Greyhound opinion remained applicable to judicial review of CPUC action, an argument not made in its original appeal. Respondents and real parties in interest did not object, allowing the California Supreme Court to focus its review on this narrow issue of statewide importance.
To understand the expansion of judicial review of CPUC actions, it is important to remember that the CPUC is a state agency of constitutional origin with far reaching duties, functions, and powers (See California Constitution, Article XII, Sections 1-6) where judicial review was expressly limited until the 1990s. The Legislature is granted the sole authority to determine judicial review of CPUC action under Article XII, Section 5. The exercise of this authority began under the Public Utilities Act of 1911, which created a narrow path of judicial review to determine whether “the commission has regularly pursued its authority…” that included a review of whether a petitioner’s rights were violated under the California and United States Constitution. (Stats. 1911, 1st Ex. sess. 1911, ch. 14, Section 67, pp. 55, 56.) This language remained through decades of amendments to the Public Utilities Code and was interpreted by many cases during this time.
Within this statutory framework, the Legislature limits what may be judicially reviewed by disallowing new evidence (See Public Utilities Code § 1757 Bill Cross Reference). Instead, only the certified record of the applicable CPUC action is reviewed. This makes the evidence before –- and the findings and conclusions made by – the CPUC the only basis for review to avoid relitigating in superior or appellate court what was already litigated in CPUC administrative adjudications. This view of CPUC adjudication and record making is long standing in California.
It is important to note here that the CPUC acts with Constitutional authority to create its own procedures, subject to statute and due process per California Constitution Article XIII, Sec. 2. By and large, the CPUC follows statute where applicable but is otherwise left to create its own Rules of Practice and Procedure, including the creation of its own basis for evidence that does not have an underpinning in the Administrative Procedure Act because the CPUC is specifically exempted from the APA by Public Utilities Code § 1701 (b) and because there is no statutory mandate to adhere to the Evidence Code (See Public Utilities Code § 1701 (a)). For all purposes, the CPUC is its own animal with no analogue, besides perhaps the Judicial Branch’s State Bar (see Business and Professions Code § 6001 (e); California Constitution Article VI, Section 9), to how it is scrutinized and challenged.
Until this Center for Biological Diversity opinion, CPUC actions have been reviewed on whether they bear a reasonable relation to the purpose and language of the Public Utilities Code. The Greyhound Lines, Inc. v. Public Utilities Commission (1968) 68 Cal2d 406 created a deferential judicial review standard for review of CPUC actions. Specifically, it found “[t]here is a strong presumption of validity of the commission’s decisions [citations], and the commission’s interpretation of the Public Utilities Code should not be disturbed unless it fails to bear a reasonable relation to statutory purposes and language.” Appellate cases from the 2000s and 2010s used this reasoning in reviewing CPUC actions where the applicable statutory amendments to judicial review in the 1990s, namely Public Utilities Code Sections 1757 and 1757.1, were the basis of the petition for review. These sections grant judicial review of CPUC action based on its type of proceeding (e.g., complaint/enforcement, ratemaking, licensing, or other) and what is being challenged (e.g., CPUC acted without jurisdiction, decision not supported by findings, etc.).
In the recent Center for Biological Diversity opinion, the California Supreme Court focused on the application of Greyhound to these Public Utilities Code Sections. The Court found that the “regularly pursued its authority” standard of deference promulgated in Greyhound is not applicable to cases where CPUC actions are reviewed under Public Utilities Code Sections 1757 and 1757.1 except where these sections expressly specify its applicability to water corporations. This fundamentally changes the standard of review for CPUC actions, aligning judicial review of CPUC action where legislative interpretation is challenged with the judicial review of other state agencies under Code of Civil Procedure Section 1094.5 (Administrative Mandamus) and the Yamaha Corp of America v. State Board of Equalization (1998) 19 Cal.4th 1 opinion. The Supreme Court of California has now fully implemented the statutory amendments adopted during the deregulatory era of the 1990s that granted statutory interpretations of CPUC authority to the courts, independent of CPUC interpretation and deference, and applied the Yamaha framework that grants deference depending on whether the challenge is specific to CPUC statutory interpretation, quasi-legislative action, quasi-adjudicative action, or a combination thereof.
The California Supreme Court did not make a determination on whether the NBT decision was correct or incorrect under Public Utilities Section 2871.1 that governs net energy metering regulation by the CPUC, remanding this next step in the case to the appellate court to determine. We will continue to track this case and provide updates. It is possible that an appellate opinion will be issued this year.
My next post will discuss the potential outcomes of this opinion on the NBT decision. I will then take a broader look at the impacts of this opinion on future litigation against the CPUC and how the CPUC administers proceedings and interprets statutes.
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.
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.
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.
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.
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.
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).
On April 17, 2023, a three judge panel for the Ninth Circuit issued an Opinion in California Restaurant Association v. City of Berkeley finding that the Energy Policy and Conservation Act (EPCA) preempts a City of Berkeley’s ordinance that prohibits the installation of natural gas plumbing in new construction. This opinion is far reaching in its implication for local government authority to adopt municipal code language and amendments to state building codes in California, particularly where these amendments electrify end-uses that are “covered products” for consumer products and commercial products (e.g., hot water heaters, space heaters, driers, cooking appliances, etc.) regulated by the Department of Energy under the EPCA.
This is the first part of a series of blogs looking at the implications of this decision on local government and state authority to regulate natural gas use in buildings, natural gas infrastructure, and Clean Air Act (CAA) and related state air quality authority to regulate natural gas emissions from buildings.
This blog was drafted by Allie Maggart, a 2024 J.D./M.A. joint degree candidate at the University of San Diego School of Law and Joan B. Kroc School of Peace Studies, with minimal edits.
As the legislative calendars move towards the end of the 2022 term with the next major deadline being whether bills reach the governor’s desk, the following provides an update on climate and energy legislative trends from the 2021-2022 sessions based on several interrelated topics: housing, wildfire, greenhouse gas emissions, transportation, energy demand response, and utilities regulation. The Legislature will reconvene on August 1, 2022, with August 31st being the last day for each house to pass bills. The Governor will then have until September 30th to sign or veto.
For a full list of active, enacted, and chaptered bills, please refer to our Legislative Tracking website.
The EPIC Energy Blog 