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Hearing on motion to suspend costly new energy code scheduled for March 8

March 5, 2024

A Thurston County Superior Court Judge rescheduled the hearing on the Building Industry Association of Washington’s motion to stay, or suspend, implementation of the state’s new building codes.

Hearing on motion to suspend

The hearing will now take place at 9 a.m. on Friday, March 8, 2024. If the judge grants the motion, the codes will not be effective on March 15, 2024. They will be delayed until a ruling on the underlying case.

The hearing may be accessed via Zoom:

  • Meeting ID:  758 8979 0163
  • Passcode: 080328

With the clock ticking toward the March 15 code implementation date, the motion to stay  warns against letting the codes go into effect while their legitimacy remains undecided.

“Construction is a time-consuming industry that requires months of advanced planning,” the motion reads. “Because future projects must account for expected changes to the codes, (builders) are already facing significantly increased costs of compliance.”

In the motion, the group argues the codes are already two cycles ahead of the legislature’s goals for energy efficiency, so there’s no rush to implement them and cause further uncertainty and added costs for builders.

The underlying challenge

On Jan. 23, 2024, the coalition filed a second amended petition for declaratory judgment asking the Court to invalidate provisions of the state’s new building and energy codes.

The petition alleges the Washington State Building Code Council (SBCC) violated the state Open Public Meetings Act (OPMA), the Regulatory Fairness Act’s requirement for a small business economic impact statement, and the Administrative Procedures Act (APA).

“The SBCC overstepped when it approved these far-reaching new energy codes effectively banning natural gas,” said Ashli Tagoai, General Counsel for the Building Industry Association of Washington (BIAW). “Absent appropriate legislative action, the SBCC does not have the authority to implement Governor Inslee’s environmental agenda through building and energy codes.”

BIAW and the others asked the Court to:

  • Declare the SBCC’s code amendments invalid.
  • Declare null and void its actions during the November and December meetings as violations of the OPMA.
  • Award the coalition its costs and fees.

The state of Washington has filed a Motion to Dismiss the Open Public Meetings Act claim. This motion is scheduled to be heard on Friday, April 5, 2024.

State legal challenge background

In February 2023, BIAW and others filed a state lawsuit in Thurston County Superior Court. This lawsuit alleged the SBCC violated state rulemaking laws in approving costly new codes restricting the use of natural gas and propane in new residential and commercial construction in the first place.

That lawsuit had been on hold because the SBCC delayed code implementation until March 15, 2024. The delay allowed the council to address other legal challenges they faced in federal Court.

Federal challenges to state’s energy codes

These legal challenges stemmed from the Ninth Circuit Court of Appeals’ decision in April 2023.

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.

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 that prohibit new building owners from extending natural gas piping within their buildings from the point of delivery at the gas meter.

In January 2024, the Ninth Circuit denied a request to rehear the case before a full panel of the Court.

That means the decision to invalidate the natural gas ban also applies to other jurisdictions.

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