Sponsors, opposition each file lawsuit regarding future of voter-approved natural gas initiative

The narrow passage of a statewide initiative intended to enshrine natural gas use in Washington has sparked an old West standoff – but the involved parties are dueling with legal filings rather than hot steel.

It took just one month for the debate over Initiative 2066 to spill into the court system. The initiative, which passed with 51.7% of the statewide vote, took aim at the state’s efforts to transition away from natural gas in the decades to come.

More specifically, the measure does away with recent updates to the state building code that disincentivizes the use of natural gas appliances in favor of electrical ones like heat pumps.

It also repeals portions of a bill signed into law earlier this year that sought to expedite the transition from natural gas for large combination utilities. Under House Bill 1589, large combination utilities are defined as those that provide electricity to more than 800,000 customers and natural gas to more than 500,000 customers, meaning Puget Sound Energy was the only utility in the state large enough to be affected.

The initiative goes on to prohibit state and local governments from banning, disincentivizing or restricting access to natural gas, which opponents say could spell the end for rebate programs that help residents opt for more energy-efficient electric appliances.

The first legal response was filed last week in Thurston County by the Building Industry Association of Washington, one of the prime sponsors of the initiative.

The lawsuit takes aim at the State Building Code Council and seeks to have the courts direct the council to immediately modify state energy codes to comply with the initiative.

The action comes after the association had attempted to lobby the council following the election to use emergency rule making powers to incorporate the initiative’s directives into state code. The association urged the council to either revert the state code back to its 2015 version, which the association’s attorney Ashli Penner argued is the last version “where natural gas heating was not penalized or discouraged,” or pass temporary revisions to the current code that can later be permanently adopted.

The current code was enacted in 2021, and Penner said the initiative should have been in effect as of Dec. 5 under state law regarding voter approved measures.

The council tasked a technical advisory group with reviewing what revisions may need to be made to state codes to be in compliance with the initiative in late November, in what the council described as a good faith effort to comply without causing confusion for local governments and developers, as reported by the Washington State Standard.

Despite the council action, Penner said the code council is not doing anything.

“They are choosing to not do anything now, emergency rulemaking-wise, which they are able to do and would be the appropriate action,” Penner said. “They are choosing not to do that because they think they don’t have to.”

Spokane County Commissioner Al French, an architect by trade who previously served on the council for six years, said he believes the board will slow -walk implementing any changes.

“I’m going to be shocked and amazed if they actually do this in a timely fashion,” French said. “It’s not the nature of the building code council to take advice or seek wisdom on their actions.”

Penner said immediate action is needed so developers and municipalities across the state are able to move forward with their projects and inspections with the understanding of where state codes and laws stand.

“There are people that are wanting to build houses with natural gas now, and as the code is written, they can’t get credits for natural gas appliances,” Penner said. “And it’s also causing a problem because there are many jurisdictions locally that are saying, ‘Well, we don’t know what to do because the state building code hasn’t told us what to do.’ ”

French agreed, adding that a delay in code changes means those who want to move forward with natural gas appliances in their builds may miss the next construction season.

“You want to be wrapping up your drawings and getting ready to submit for building permits, January, February, so that you can start construction March, April, and take advantage of this construction cycle,” French said. “Well, it’s difficult to wrap up drawings if you don’t know what heating system you’re going to have in your home.”

Just shy of a week after the association asked the courts to intervene, a coalition of local governments, climate change advocates and renewable energy proponents did the same.

In a lawsuit filed in King County Superior Court Wednesday, those in opposition to the initiative argued it’s unconstitutional because it violates the state’s single-subject requirement for initiatives, which is meant to provide voters clarity, and for failing to fully cite the elements of state law it would alter.

Plaintiffs in the constitutional challenge include King County, the city of Seattle, Climate Solutions, Washington Conservation Action and the Washington Solar Energy Industries Association.

“It’s not every day you start publicizing a lawsuit,” Seattle Mayor Bruce Harrell said in a Wednesday news conference. “But when we think our planet, our air and our water, and how we are trying to save this planet, is affected, we will come together, and we will fight.”

Harrell said the city agrees the initiative is too broad to be implemented, adding that it could affect a wide range of state laws and regulations pertaining to the environment and public health, as well as those intended to “ensure our building safety and fire protections.”

Members of the “No on 1-2066” campaign, which includes some of the organizations that filed the lawsuit, had raised concerns over the sweeping language in the measure leading up to the election. Their motion includes the request of an injunction to prevent the initiative from taking effect until their case is closed.

“It would also raise the utility bills of families in Seattle and across our state in the coming years, increasing energy costs for those with gas devices in their homes and hurting low-income families,” Harrell said, echoing a common argument levied by the initiative’s opposition leading up to the election.

Climate Solutions spokeswoman Stephanie Noren said she believes the measure never would have passed had the sponsors been clear about what all it could impact, and that the longer the “no” campaign carried on, the more they saw voter support decrease.

Noren thinks the initiative would have failed had they had more time to educate voters, citing the failure of another initiative in November that would have repealed provisions of the Climate Commitment Act. Initiative 2066 didn’t qualify for the ballot until midway through the summer, giving her coalition less time to reach voters than with the other initiatives, she said.

Regarding the sponsors’ legal action, Noren said she appreciates the code council is not enacting emergency powers and doing away with all of the work put into the 2021 version of state code by reverting to the 2015 version.

“They took a lot of very deep and thorough consideration about the impact to both the builders and developers in Washington state, but also knowing what it meant from a climate perspective,” Noren said. “And so we would expect and hope that the code council does the same. Maybe not the same amount of time, but definitely the same intentionality and consideration in looking at the way that the initiative, as written, impacts their work.”

Penner said she believes the code council, the Legislature and those challenging the initiative’s constitutionality are trying to undermine the will of voters.

“We have the State Building Code Council that’s not willing to implement 2066, in the way that it can be implemented immediately, and then you have people who are challenging it, saying that the voters were confused, or that it’s more than one purpose,” Penner said. “It’s unfortunate and flies in the face of our democratic process.”

Neither case is expected to be heard in court until January.