The California Apartment Association and its coalition partners have asked the Ninth Circuit Court of Appeals to reconsider a divided ruling that upheld South Coast Air Quality Management District’s zero-emissions appliance rule.

The coalition filed a petition for rehearing en banc on Aug. 13. That process asks the Ninth Circuit’s active judges to decide whether the case should be reheard by a larger panel of judges.

CAA and the coalition are challenging Rule 1146.2, which effectively requires certain gas-fired water heaters, boilers and pool heaters to be replaced with electric alternatives throughout Orange County as well as much of Los Angeles County and the Inland Empire.

The petition argues that the panel’s decision conflicts with the Ninth Circuit’s earlier ruling striking down Berkeley’s natural gas ban. In that case, the court held that Berkeley could not use a ban on gas piping to prevent people from using appliances protected by federal energy law.

CAA and its coalition partners argue that South Coast AQMD’s rule reaches the same result in a different way: instead of banning the gas connection, it bans the combustion emissions produced by the appliance. The petition says both approaches effectively prevent the use of covered gas appliances and are therefore preempted.

The coalition also disputes the panel majority’s conclusion that the Clean Air Act shields the South Coast rule from federal preemption. The petition argues that the Clean Air Act still requires state and local regulations to comply with other federal laws, including the Energy Policy and Conservation Act. Judge Kenneth Lee made similar points in his dissent from the panel ruling, writing that the Berkeley case should control and that the majority had “effectively ma[de] that precedent vanish like smoke.”

The Ninth Circuit will now decide whether to grant en banc review. If it does, the court may request additional briefing, another oral argument, or both before issuing a new decision.