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Groups request energy code delay after Ninth Circuit ruling on natural gas restrictions

April 20, 2023

The recent ruling by the 9th U.S. Circuit Court of Appeals has prompted 25 businesses and trade associations to ask the State Building Code Council to delay implementing its new energy code.

In California Restaurant Association v. City of Berkeley, the Court ruled that federal law preempts the City of Berkeley’s ban on installing natural gas piping in new construction.

BIAW and 24 others sent a letter requesting the council delay implementing the new energy code to July 1, 2024. The City of Seattle today announced its plans to delay implementation of the codes as well.

“Considering this recent ruling, we’re asking the council to delay implementation to allow ample time to restart the rulemaking process,” said Greg Lane, BIAW’s Executive Vice President. “It just makes sense to pause the implementation of these new codes until all of the questions raised by this case can be resolved.”

Recent ruling applies to Washington

In its decision, the Court ruled the federal Energy Policy and Conservation Act expressly preempts state and local regulations concerning the energy use of many natural gas appliances. This includes those used in household and restaurant kitchens.

The Court further noted that by its plain text and structure, the Act’s preemption provision encompasses building codes that regulate natural gas use by covered products. By preventing such appliances from using natural gas, the Berkeley building code violated the Act. Because Washington is under the jurisdiction of the 9th Circuit Court of Appeals, a final decision on this issue binds this state as well as the parties to the case in California.

Uncertainty hurts housing affordability, availability and more

Washington’s new energy codes add a minimum of $9,200 to the cost of a new home. According to a recent report by the National Association of Home Builders, a median-priced new home in Washington already costs $210,000 more than the national average — $635,131 compared to the national average of $425,786. At that price, nearly 81 percent of Washington’s 3.1 million households can’t afford a home.

The uncertainty not only affects affordability and availability, it also limits family businesses and restaurants that rely on natural gas flame to cook traditional ethnic cuisine.

Legislators poised to act

In light of the Court’s decision and as the legislature enters its final days of session, Sen. Lynda Wilson, R-Vancouver, has introduced SB 5772, suspending implementation of the energy code until the building code council amends the code to comply with federal law.

Update (4/24/2023)

The State Building Code considered this request and rejected it at its regular meeting on Friday, April 21. BIAW is reviewing other options.


The Building Industry Association of Washington is the voice of the housing industry. The state’s largest trade association with 8,000 member companies, BIAW promotes and protects the the building industry so more families can enjoy the American Dream of owning a home.  Learn more at:


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