Industry Plaintiffs Drop Lawsuit Challenging Washington State’s Climate-Friendly Building Codes

Gas industry and homebuilding plaintiffs who tried to block implementation of progressive new building codes in Washington state have dropped their legal challenge, asking a federal judge to dismiss their case.

The move follows a victory last month in support of the building codes when the U.S. District Court in Eastern Washington denied a preliminary injunction request from industry plaintiffs to delay implementation of the codes. Washington’s new codes would incentivize electric heat pumps over polluting methane gas in all new commercial and residential buildings.

In his ruling on the preliminary injunction from the bench last month, Chief Judge Stanley Bastian said that the industry’s claimed harms were “purely speculative” and did not outweigh public harms from climate change. Judge Bastian added that he did not want a further delay of an update to Washington State’s statewide building codes to have a “chilling effect” on other states and local communities wrestling with the important issue of climate change.

He noted that the court should stay out of the way of Washington State as it addresses climate change through building code revisions.

If the court accepts the request to dismiss the lawsuit as expected, the State Building Code Council (SBCC) can continue its work updating the statewide building codes to incentivize the use of electric appliances over those that use methane gas, thereby improving public health, saving energy and costs, reducing air pollution, and helping the state meet its statutory climate targets.

The new codes are currently set to take effect in late October, assuming amendments currently being worked on by the State Building Code Council are adopted.

The code update is a critical tool to combat climate change. Buildings are the second largest carbon-producing sector in Washington State after transportation, in part due to the use of methane — a potent greenhouse gas — for heating and cooling buildings, cooking food, and heating water.

The dismissal of the challenge to Washington’s building codes follows another Northwest electrification victory from last week in neighboring Oregon. In a historic settlement in a contested rate case between Oregon’s second largest gas utility and intervening organizations, Avista will phase out fossil fuel subsidies, dramatically expand low-income weatherization programs, and would be prevented from passing on to ratepayers the costs associated with litigation that aimed to undermine state climate law and with gas industry association dues largely used for political lobbying.

This litigation challenging the new codes is part of a broader fossil fuel industry strategy to delay urgently needed climate and public health action across the nation. Climate and health advocates, and other states and local governments hoping to enact similar building codes, see these victories as encouraging forward movement in support of building electrification.

Jan Hasselman, Senior Attorney with Earthjustice: “The gas industry in the Northwest is starting to see the writing on the wall and the sooner they join the transition to clean energy, instead of fighting it, the better for both their customers and our climate.”

Naghmana Sherazi, Climate Justice Program Director with The Lands Council: “Dropping this lawsuit against Washington’s building codes was the right thing to do. With record heat driven by climate change affecting record numbers of people this summer, the gas industry has no business trying to block climate progress.”

Background

According to state law, the Washington State Building Code Council (SBCC) is charged with reaching the goal of zero emissions from fossil fuels for buildings by 2031. Codes must be updated every three years with incremental reductions in emissions. The new codes, passed last year, are among the most progressive in the country.

Washington’s new building codes were initially set to take effect in July of this year. The SBCC sought amendments to the codes in May, along with a delayed implementation date, following a surprise ruling by a federal appeals court in California that overturned a City of Berkeley electrification ordinance. Even though that decision is being appealed and the Berkeley ordinance could be found lawful, the SBCC proactively decided to revise the new building codes to ensure there was no doubt they complied with federal law including the Energy Policy and Conservation Act (EPCA).

EPCA sets national efficiency standards for many household and commercial appliances and prohibits states from setting their own efficiency standards for appliances where they have been set federally to avoid varied efficiency requirements across states. EPCA, however, explicitly allows state and local governments to electrify buildings through building codes by setting overall performance standards that favor electric appliances over burning fossil fuels. States can also establish indoor air quality standards that favor electricity over polluting methane gas.

The code amendments SBCC is currently considering will effectively promote energy-efficient heat pumps for virtually all new construction without banning other forms of energy or technology. If the amendments are adopted, the new codes are set to take effect in October. If the SBCC determines it needs more time, the effective date could be later.

The litigation against these codes is part of a broader strategy by the gas industry to undermine and roll back electrification policy with litigation. Earlier this month, Avista, one of the plaintiffs in the lawsuit, was criticized for using ratepayer money to fund litigation in Oregon against the Climate Protection Program, one of the state’s landmark climate policies. Avista just settled a rate case last week, promising to phase out fossil fuel subsidies and to avoid having its customers foot the bill for political spending that undermines state climate law.

Plaintiffs in the building code case include the state’s three gas-only utilities (NW Natural, Cascade, and Avista) and construction companies. The defendant is the State Building Code Council. Earthjustice is representing climate and public health groups that have intervened on behalf of SBCC to defend the codes. Those groups include Climate Solutions, the Lands Council, NW Energy Coalition, Sierra Club, and Washington Physicians for Social Responsibility.

The Earthjustice attorneys involved in defending Washington’s building codes are Jan Hasselman and Noelia Gravotta.