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Lawsuit seeks to block state building code requirements for heat pumps

By Hal Bernton, The Seattle Times
Published: March 3, 2023, 7:29am

SEATTLE — A lawsuit filed earlier this week by the Building Industry Association of Washington and 22 other plaintiffs seeks to overturn state building code requirements approved last year that call for the installation of heat pumps in new residential and commercial buildings.

The complaint alleges the Washington State Building Code Council overstepped its authority in approving the changes, which the lawsuit claims was done “without regard to … the costs imposed on homeowners, workers, businesses, developers and myriad others across the state.”

Heat pumps operate with electricity and are generally far more efficient than electric baseboard heat or electric furnaces. Code changes approved in April and November of last year put Washington on the front lines of a national movement to drive down greenhouse-gas emissions from indoor heating sources that use fossil fuels such as natural gas furnaces.

The plaintiffs in the lawsuit include a labor organization representing four construction unions with an interest in natural gas infrastructure work, the Associated General Contractors, Blue Star Gas-Seattle, which markets and distributes propane for heating, and Energy Saving Products, a wholesale distributor of gas as well as heat pump equipment used in commercial buildings.

The code changes passed last year amid a broader effort in Washington to reduce the state’s greenhouse-gas emissions to net-zero by midcentury. A 2019 state law will force electric utilities to end their reliance on fossil fuels used to generate power and another law passed in 2021 imposes a lowering cap on greenhouse-gas pollution.

The 14-page complaint, filed in Thurston County Superior Court, argues the building code council exceeded its statutory authority in making the changes and that the actions represent an unconstitutional delegation of authority from the Legislature that will raise the costs of new construction. It notes that the Legislature did not pass a bill backed by Inslee in 2021 requiring building code changes to eliminate natural gas for space and water heating in new construction as well as elimination of natural gas systems when construction is undertaken on existing buildings.

“This was an end run around the Legislature by trying to ram his policies through the state building council,” said Jackson Maynard, general counsel for the Building Industry Association of Washington, who in an interview said that ample funding has been raised to wage the legal battle to try to block the code changes.

The lawsuit is part of broader backlash — much of it backed by the natural gas industry — against measures proposed or passed around the country to clamp down on the use of fossil fuels in heating buildings.

Environmental groups strongly supported the state building code changes, and Climate Solutions, Earthjustice and the Sierra Club released a statement this week denouncing the lawsuit.

Stephanie Noren, of Climate Solutions, said that the state building code council is required by law to design the energy code to comply with mandated reductions in emissions and energy consumption.

Environmental groups also say that the code also provides health protections by reducing harmful indoor emissions resulting from the use of natural gas and other indoor appliances.

“Our collective well-being rests on phasing out fossil fuels as fast as possible, and we intend to defend these rules in court,” said Jan Hasselman, senior attorney with Earthjustice, in the statement.

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Building industry officials contend the measure will exacerbate the housing shortage in Washington by increasing costs, which the council estimates to tally at least an additional $9,200 for the heat pump requirement in new residential housing.

In an interview, Andrea Smith, a Building Industry of Washington staffer who is listed as a homeowner plaintiff in the lawsuit, called for alternative code changes that would set standards that would reduce carbon emissions then let builders determine how to meet them.

The lawsuit also takes aim at other changes approved by the state building code council.

The plaintiffs allege the council exceeded its authority in adopting requirements for some homes that may be threatened by wildfire. They allege the council made “drastic changes” that go beyond what is allowed under state law.

The lawsuit also challenges a requirement that effectively requires each carport or garage in new homes to be installed with the means to provide a faster charge for an electric vehicle.

The lawsuit asks the court to declare the changes made by the building code invalid, and award attorney and other legal costs to the plaintiffs.