Ninth Circuit denial fuels legal fight against a natural gas ban
January 4, 2024
The legal fight against a natural gas ban in Washington gained new momentum this week. The Ninth Circuit Court of Appeals denied a request to rehear the case challenging the City of Berkeley’s natural gas ban before a full panel of the Court.
“The Ninth Circuit’s denial to rehear the City of Berkeley decision circumvents attempts by state and local governments to ban natural gas via changes to building codes, unless the US Supreme Court decides otherwise,” said BIAW General Counsel Ashli Tagoai. “This rehearing denial solidifies the City of Berkeley case as binding precedent. This means the federal courts of Washington cannot ignore this decision as we’re under the jurisdiction of the Ninth Circuit.
“Washington’s de facto ban on natural gas as an option for heating and water isn’t just illegal. It’s bad public policy and it’s bad for Washington families,” Tagoai said. “We are fighting for home builders and the families they serve to have choices in the energy sources they use for cooking and heating their homes.”
Legal fight against a natural gas ban
In California Restaurant Association v. City of Berkeley, the Ninth Circuit Court of Appeals determined that federal law preempts the City of Berkeley’s ban on installing natural gas piping in new construction.
In April 2023, the Court ruled the federal Energy Policy and Conservation Act (EPCA) expressly preempts state and local regulations concerning the energy use of many natural gas appliances. This includes those used in household and restaurant kitchens.
Specifically, the Court held that EPCA prevents states and local governments from adopting building codes prohibiting new building owners from extending natural gas piping within their buildings from the point of delivery at the gas meter.
State and federal challenges in Washington
In February 2023, BIAW and other trade associations, union representatives, businesses and homeowners filed a state lawsuit in Thurston County Superior Court. This challenge alleges the State Building Code Council violated state rulemaking laws in approving costly new codes restricting the use of natural gas and propane in new residential and commercial construction. This state rule challenge is ongoing.
In May 2023, a separate group of plaintiffs filed a federal lawsuit in the US District Court for the Eastern District of Washington.
In response, the Washington State Building Code Council (SBCC) announced a delay in implementation to provide the Council time to amend for EPCA preemption violations. Given the implementation delay, the group moved to dismiss the federal suit without prejudice pending the outcome of new rulemaking.
This strategic move allows the plaintiffs to renew the EPCA preemption claims in federal court. This may be forthcoming given that the SBCC failed to amend the state energy code into EPCA compliance. The new building codes go into effect on March 15, 2024.
“The SBCC said they delayed code implementation to develop updated codes that wouldn’t violate EPCA,” Tagoai said. “Then they adopted code modifications that continue to violate federal law by making it so cost-prohibitive to use natural gas they’re essentially banning its use.”
Plaintiffs in the federal case have yet to announce their plans moving forward.
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The Building Industry Association of Washington is the voice of the housing industry. The state’s largest trade association with nearly 8,000 member companies, BIAW promotes and protects the vitality of the building industry so more Washington families can enjoy the American Dream of owning a home. Learn more at: www.biaw.com