SEATTLE — Climate advocates joined by King County and the city of Seattle filed a lawsuit challenging the constitutionality of a natural gas initiative passed narrowly by voters last month.
Initiative 2066 seeks to explicitly protect access to natural gas in Washington and also weakens building codes that make it more difficult and costly to add natural gas heating in new construction.
The initiative threw a wrench in the state’s long-term plans to ease reliance on climate-warming fossil fuels, and made Washington one of dozens of states that have passed similar laws prohibiting local bans on natural gas.
Around 52% of voters approved the initiative in November. It was supported by the Building Industry Association of Washington, the Washington Hospitality Association and political action committee Let’s Go Washington.
The plaintiffs challenging the initiative include advocacy groups Climate Solutions, Washington Conservation Action and Front and Centered, and the Washington Solar Energy Industries Association and a builder, who is a former member of the State Building Code Council. They are represented by Pacifica Law Group. The plaintiffs gathered at Métier Brewing Company on Wednesday to publicize the lawsuit.
Seattle Mayor Bruce Harrell said, “It’s not every day you start publicizing a lawsuit 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.”
The plaintiffs contend the initiative is illegally broad and addresses more than one subject and targets multiple laws, regulations and programs. Washington’s Constitution states that bills should not include more than one subject and in the past, Washington initiatives have been struck down by courts after passage.
According to a legal memo prepared in September by Pacifica Law Group and University of Washington professor Hugh Spitzer, this requirement is meant to protect against “logrolling” or “combining several different proposals to gather yes votes although a voter might not individually approve all proposals.”
Pacifica Law Group attorney Kai Smith said the lawsuit also alleges the initiative’s title was misleading and its language improperly changes existing laws.
The Washington state attorney general typically defends initiatives passed by voters and the plaintiffs anticipate a hearing to be scheduled next January or February and for the case to escalate to the Washington Supreme Court, Smith said.
In an October interview, BIAW Executive Vice President Greg Lane had said he was “very confident” the initiative would past legal muster and that it was “very tightly written” with legal challenges in mind.
Initiative 2066 adds provisions to state law that explicitly protect access to natural gas and ensure that local governments and the state’s energy code cannot “prohibit, penalize or discourage the use of gas.”
Under the state’s current code, buildings must meet a certain energy performance and those built with electric heat pumps are scored higher than gas appliances.
It also targets legislation intended to help Puget Sound Energy, the state’s largest utility, plan its transition away from natural gas. The initiative takes away requirements for Puget Sound Energy to study electrification efforts and prevents the state utility commission from approving a plan from the utility that incentivizes terminating natural gas service or requires customers to “involuntarily switch fuel.”
The Building Industry Association of Washington, the primary sponsor of the initiative, has also filed a lawsuit asking the courts to direct the State Building Code Council to adapt the current energy codes to comply with the initiative.
“Millions of voters have spoken and Initiative 2066 is now law,” Lane said in a written statement. “Above all else, the members of the State Building Code Council have a duty and obligation to follow state law.
Last month, the State Building Code Council passed a motion directing its energy code technical advisory group to bring forward recommendations to update the current energy code to comply with the initiative, while also complying with federal standards and state energy efficiency requirements.
“We intend to make a good faith effort, through our established process, to achieve the complex and entangled goals with which we have been asked to comply, while minimizing uncertainty in regulation and disruption for the construction industry,” the motion stated.
During the meeting, council member Kjell Anderson acknowledged the uncertain future around the initiative.
“We’re going to get sued no matter what we do and it’s likely the initiative will also face legal challenges, so we need to move thoughtfully,” he said.
The State Building Code Council declined to comment on the BIAW lawsuit since the litigation is pending.
In 2020, an initiative that attempted to lower many state vehicle-registration fees to $30, repeal local car-tab taxes and roll back Sound Transit’s car-tab taxes was struck down after state Supreme Court justices found the measure contained multiple subjects.
