(The Center Square) – A Thurston County Superior Court Judge on Friday dismissed on technical grounds the Building Industry Association of Washington’s lawsuit against the state regarding a voter-approved natural gas initiative.
The case involves a lawsuit in which BIAW asked the court to direct the Washington State Building Code Council to modify state energy codes to comply with Initiative 2066, passed by voters in November, which ensures natural gas remains an energy choice even as the state moves toward clean energy like electric.
Judge John Skinder did not rule on the merits of the case brought by BIAW but sided with the state’s motion to dismiss over the manner in which the case was filed.
“The motion to dismiss from the state today was all about whether it should be under the Uniform Declaratory Judgement Act or the Administrative Procedures Act,” said BIAW General Counsel Ashli Penner in an interview with The Center Square just after the hearing. “It was not a win for the state because it did nothing other than just say these claims should be decided under the APA and not the UDJA.”
Penner told The Center Square BIAW intends to refile its lawsuit under the Administrative Procedures Act before the end of February.
BIAW contends the SBCC has failed to align the state’s energy codes with I-2066.
“Millions of voters have spoken, and Initiative 2066 is now law,” BIAW Executive Vice President Greg Lane said in a December press release announcing the lawsuit. “Above all else, the members of the State Building Code Council have a duty and obligation to follow state law.”
BIAW wrote a letter to the SBCC on Nov. 13, asking it to take emergency action to comply with the new law, which became effective on Dec. 5.
SBCC has claimed it doesn’t fully understand what is required of it.
“The State Building Code Council is in the process of analyzing and doing the work to determine what the appropriate impact of 2066 is,” said Assistant Attorney General R. July Simpson, arguing on behalf of the building code council.
Simpson told the judge that comments made by building code council members during recent meetings discussing I-2066 do not constitute any policy changes or positions of the council.
“The individual statements of council members are not the statement of the council as a whole or the action of the council as a whole,” she said. “They are statements made in meetings as the council works through the work.”
Penner said the head of SBCC’s technical advisory group has indicated that he doesn’t think I-2066 applies to the current energy code.
“He says it doesn’t penalize natural gas and is just about energy efficiency, but that’s not accurate,” Penner noted. “The energy code does discourage natural gas because it makes it more expensive.”
Penner said the SBCC has also stated it doesn’t believe the changes called for by I-2066 are enforceable because the state Legislature hasn’t directed the SBCC to make adjustments to the energy code.
“They have a misunderstanding of how state law works. Initiatives have the same effect as legislation that passes during session, so they’re using that as a means to get around it,” said Penner.
The judge suggested the lawsuit puts some pressure on the SBCC.
“My hope is that the BIAW filing this does put the council on notice about what the expectations are from their standpoint,” Skinder said.
