Washington regulators derailed earlier this year when they tried to mandate electric heat pumps, rather than natural gas, be used to warm newly built homes and apartments.
But now a path is emerging for them to offer builders incentives to choose heat pumps instead of gas and to make obtaining a construction permit more difficult if they don’t.
The move came after a federal appeals court scrapped similar regulations in Berkeley, California, and as opponents to Washington’s policy filed their own legal challenge.
Building Code Council members delayed enforcement of their rules until Oct. 29. In the meantime, they directed a technical advisory group to recommend revisions that could align with federal law and still effectively force builders off natural gas in favor of heat pumps
The council will review the panel’s recommendations at its Sept. 15 meeting in Spokane.
Shifting away from natural gas appliances is part of a broad effort by the state to reduce carbon emissions and increase energy efficiency in residential buildings. Similar changes are required in new commercial building construction as well.
In the California case – California Restaurant Association v. City of Berkeley – the 9th U.S. Circuit Court of Appeals concluded the federal Energy Policy and Conservation Act “expressly preempts state and local regulations concerning the energy use of many natural gas appliances, including those used in household and restaurant kitchens.”
That incited concern that the federal law would also preempt Washington’s rules. The waylaid regulations call for using heat pumps – unless the new construction meets one of a handful of exceptions, such as no access to electricity.
While not a full ban on gas, the state building council decided to rewrite the rules to avoid the potential conflict with federal law.
Meanwhile, a coalition of builders, labor unions and three natural gas providers – NW Natural, Cascade Natural Gas and Avista — filed suit in the U.S. District Court in Eastern Washington contending the federal preemption cited in the California case applies in Washington as well.
A federal judge in July denied a request to block the adopted rules. And last week, the coalition moved to dismiss the case they’d brought but “without prejudice,” assuring it a chance to file a new challenge later.
“This case was not well thought out. I hoped they learned their lesson,” said 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.”
The lead lawyer for the Building Industry Association of Washington cautioned against thinking the fight is done.
“We were all disappointed in the judge’s ruling and frustrated affected industries, trades and individuals will be forced to wait until we learn what the Building Code Council decides in September,” said Jackson Maynard, BIAW general counsel.
“However, this decision, and the plaintiffs decision to voluntarily dismiss the case, allows us to focus our full attention on persuading the state Building Code Council to restore greater access to natural gas in new residential and commercial construction,” he said. “The rumors of the death of the natural gas litigation have been highly exaggerated.”
With legal wrangling ended, the focus turns to the emerging rule changes drawn up by the advisory panel.
Heat pumps get all the credit
The panel, composed of builders, environmentalists, and utility officials, labored through 40 changes, some large, some small.
It erases sections mandating use of heat pumps for heating water and for space heating.
And it revises how credits that builders need to comply with the state building code are awarded. This is a linchpin to this new approach.
The building code sets a credit minimum for a dwelling unit based on its size.
Different amounts of credits are available for installing various appliances and employing building treatments to reduce energy use. The credits are available for such things as heat pumps, solar panels, thermostats and ventilation systems.
Under the proposed changes, a builder would need five credits for a home of less than 1,500 square feet, under the proposed rule change. That’s nearly double the credits they need today.
What Odum also proposed, which cleared the advisory panel, involves significant changes on heating system credits. It provides up to three credits for a system using a heat pump and zero credits for natural gas.
Current law provides one credit for a heat pump and none for most natural gas systems. The rules that are now on hold would’ve dinged natural gas furnaces with a minus-three credit rating and provided up to 1.5 credits for electric heat pumps.
“You need five credits. Put in a heat pump, you get three. Then you need to do something else to get to five,” Odum explained.
Another change the panel agreed to adds options for gas-fired heat pumps which are rare in use and more expensive. This was a request from utilities. And the group provides a half-credit for this appliance.
“The main difference between this (proposal) and what the council had before is it lets builders pitch what they want. They are not requirements,” he said. If they put in a gas furnace, it’ll be more expensive.
Opponents of the original rules say the proposed revisions will drive up the cost of building homes and the price to buy them.
“The number of credits required (for compliance) is so high that it’s going to render new construction even more expensive,” said Andrea Smith, BIAW’s policy and research manager, and an advisory panel member.
It will be “infeasible” to use gas without adding a ton of solar panels to meet the required number of credits. With each half-credit of solar costing about $3,500, the building costs will soar, she said.
Washington is aiming to reduce energy use in buildings by 70% compared to the levels envisioned with the 2006 edition of the state building code. And the building code council has a mandate to get it done by early next decade.
“This proposal is in line with those mandates,” Odum said. “If we put it off, it will be harder to do it later.
— By Jerry Cornfield, Washington State Standard
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