By Adam Pagnucco.
A coalition of business and labor groups has filed suit in federal court against Montgomery County over Bill 13-22, nicknamed by opponents as “the electrocution bill.” The plaintiffs claim that provisions of the bill banning gas appliances in new construction are preempted by federal law.
Bill 13-22, titled Comprehensive Building Decarbonization, was authored by Council Member Hans Riemer and passed unanimously by the county council in November 2022. The bill requires the county executive to issue all-electric building standards for new construction no later than 12/31/26. Some categories of new construction are exempted, such as buildings used for manufacturing, crematories, life sciences, hospitals, farming and several types of buildings with permit applications prior to 12/31/27.
Before its passage, the bill drew pushback from Pepco and BGE, who alleged that the bill would burden their electric grids and create substantial cost increases for building owners, tenants and ratepayers. The council ignored these claims and passed the bill just days before several council members, including Riemer, were due to leave office.
Late last week, a coalition of business and labor groups filed suit against the law in the U.S. District Court for the District of Maryland. The plaintiffs are:
National Association of Homebuilders
Restaurant Law Center
National Federation of Independent Business
Maryland Building Industry Association
Washington Gas Light Company
Philadelphia-Baltimore-Washington Laborers District Council
Teamsters Local 96
The plaintiffs allege that the law “bans the use of gas appliances in new construction” and claim that “the Energy Policy and Conservation Act (“EPCA”), 42 U.S.C. §§ 6201-6422, already regulates the energy use of such appliances and expressly preempts state and local laws on that subject.” The complaint relates how the 9th Circuit Court of Appeals threw out a ban on gas in new construction by the City of Berkeley on the grounds that it was preempted by federal law earlier this year. The 9th Circuit cited the same federal law discussed in the complaint against Montgomery County. The plaintiffs are seeking a permanent injunction against enforcement of MoCo’s law.
The issue of preemption has arisen several times in recent years as Montgomery County lawmakers have become increasingly aggressive in legislating on progressive priorities. An early instance of this occurred in 2006, when a state judge threw out a law authored by Council Member Tom Perez intended to penalize predatory lending. According to the Washington Post:
In March, Circuit Judge Michael D. Mason issued a temporary injunction against the law. On the same day, the Bush administration released an opinion saying the law bypassed federal authority.
In his decision striking down the law, Mason wrote: “No matter how noble the purpose, a ‘general’ law is beyond the authority of the county to enact and is unconstitutional.” The law “has substantial territorial effect beyond the borders of Montgomery County,” he wrote.
“It concerns matters that are of significant interest to the citizens of the entire state.”
A committee packet on Bill 13-22 contains this footnote on possible preemption:
In a September 27, 2021, letter from Counsel to the General Assembly to Delegate Lorig Charkoudian, Counsel answered whether State law preempts the ability of local governments (county or municipal) to prohibit gas hookups in newly constructed buildings. The advice was that “State law leaves room for local governments to act in this space.” Summarizing the letter, while there is state preemption of public utilities, local governments have broad building code powers.
Note that this footnote does not mention federal law.
We shall see if the plaintiffs’ arguments prevail as they did in California. One also wonders whether such arguments pertain to the county’s Building Energy Performance Standards (BEPS) law, which was also passed in 2022. Regulations on this law are now before the county council.
A copy of the federal complaint against the county can be downloaded below.