Climate Activists Take America’s Newest ‘Fuel Choice’ Law to Court

The United States is rapidly dividing into two camps: those that are trying to move away from using natural gas in buildings to fight climate change, and those passing “fuel choice” laws that protect consumers’ rights to keep burning it. On election day, Washington State flipped from the former to the latter as voters narrowly approved a ballot measure that overturned some of the most ambitious decarbonization policies in the country.

Now, a coalition of local governments, environmental groups, and public health advocates are challenging that ballot measure in court, arguing that voters didn’t understand what they were signing up for, and thus that the measure violates parts of the Washington State constitution designed to prevent abuse at the ballot box.

“Among its far-reaching impacts,” the opening of the claim filed at the King County Superior Court on Wednesday reads, “the Initiative jeopardizes the ability of local governments and other entities to establish energy-efficiency standards and reduce greenhouse gas emissions; it threatens programs that require the construction of energy efficient buildings; and it would make the clean energy transition chaotic and more expensive for Washingtonians.”

Initiative 2066 was pitched by its sponsor, the Building Industry Association of Washington, as simply a measure to protect consumer access to natural gas, according to Kai Smith, a lawyer from Pacifica Law Group who is representing the plaintiffs. But the text of the measure goes much further, he said, affecting several state laws and codes designed to reduce carbon emissions and regulate air pollution.

“I don’t think voters would have been aware of that broad of an impact when they looked at the ballot title and they heard the campaign messaging,” Smith told me.

Though Washington has long been a leading state for climate policy, it began taking bigger swings at decarbonizing buildings, in particular, in 2022. That year, the state’s building code council enacted energy codes that required newly constructed buildings to be outfitted with all-electric space heating and hot water systems. The council later amended the rules so that they strongly encouraged — but did not necessarily require — electric appliances after a similar policy in Berkeley, California was overturned by a federal court.

Initiative 2066 invalidates those codes. It also repeals key parts of a law the state legislature passed earlier this year that requires Washington’s biggest utility, Puget Sound Energy, to consider alternatives before replacing aging gas infrastructure or building new gas pipelines. The utility would have had to analyze whether electrifying the homes served by that infrastructure instead would ultimately save ratepayers money.

That’s not all: In a more forward-looking section, the initiative bans counties and local governments from passing any local ordinances that “prohibit, penalize, or discourage” the use of gas in buildings. It also adds a new clause to the Clean Air Act barring state officials from doing the same.

The lawsuit was brought by Climate Solutions, a local climate advocacy group, as well as Washington Conservation Action, Front and Centered, the Washington Solar Energy Industries Association, King County, and the City Of Seattle. It alleges that the measure violates the state’s “single subject” and “subject-in-title” rules, which say that an act can only concern one topic and that the ballot title has to fairly and accurately apprise voters of the content of the initiative.

Although all the pieces of Initiative 2066 are related to protecting consumers’ access to natural gas as an energy source, Smith argued that some of the changes it makes are more broad — for example, sticking a clause in the Clean Air Act to protect natural gas use. The Clean Air Act is about pollution regulations, he said. “While those are tied to natural gas, conceptually and legally, I think they are distinct.” The Initiative also struck a provision in Washington law that required the state’s building code council, as it updates energy codes periodically, to work toward a goal of all new construction being “zero fossil-fuel greenhouse gas emission” by 2031. That strike-out would impact the full range of fossil fuels, not just natural gas, Smith said.

Climate policy in Washington is popular. The majority of voters rejected another measure on the ballot which would have repealed the state’s big umbrella climate law that puts a declining cap on emissions. But perhaps some of those voters haven’t yet made the connection that cutting carbon includes the emissions that come from their homes. The natural gas burned in homes and buildings are responsible for 25% of the state’s carbon footprint. Clearly, the “yes on I-2066” campaign’s messaging — summed up as “stop the gas ban” — resonated.

Smith argued that the message was misleading. “That’s not what these laws are,” he said. “It’s to help facilitate movement towards clean energy in a way that’s thoughtful and methodical, and that doesn’t lead to increased costs for customers.”