Seattle, King County & Nonprofits Challenge Washington’s Ballot Initiative Preempting Local Efforts to Phase Out Natural Gas – Climate Law Blog

Over the last five years, at least 25 states have expressly preempted local governments from enacting requirements, or even incentives, to construct new buildings that do not rely on natural gas as a fuel source. On December 6, 2024, two local governments finally fought back in court. Seattle and King County, Washington, along with various nonprofit and individual plaintiffs, brought suit against the state of Washington in Climate Solutions v. State of Washington. In their complaint, plaintiffs argue that the state’s recent ballot initiative, Initiative Measure 2066 (I-2066) is unconstitutional and should be enjoined from taking effect. If successful, the effort would represent the first time a state’s preemption law on natural gas restrictions for buildings was overturned or repealed for any reason, litigation included.

It’s worth noting how I-2066 differs from other states’ preemption laws. While 24 states have preempted local governments via legislation signed into law by the applicable state’s governor, I-2066 was enacted as a ballot initiative, squeaked into law by 51.7% of Washington’s November 2024 voters. As relates to local preemption, I-2066 states that cities, towns and counties “shall not in any way prohibit, penalize or discourage the use of gas for any form of heating, or for uses related to any appliance or equipment, in any building.” While language varies from state to state, this is substantively if not precisely in line with how other states have limited their local governments’ authority to restrict gas use in buildings.

But I-2066 does more than just preempt local governments on gas use in buildings. It similarly prohibits the state’s energy code and state regulatory bodies from “prohibit[ing], penaliz[ing] or discourag[ing]” building gas use, and it repeals zero greenhouse gas building objectives. The Initiative also expands the so-called “obligation to serve” to require that gas companies, combination utilities, and municipal utilities “provide natural gas to all persons and corporations in their service area or territory that demand, apply for, and are reasonably entitled to receive, natural gas… even if other energy services may be available.” In doing so, the Initiative undoes legislation enacted by the Washington State Legislature earlier in the year, allowing utilities to meet their obligation to serve by providing energy services through thermal energy networks (i.e., ground source or geothermal energy). Washington remains one of the only states in the country to change its obligation to serve in this way. I-2066 also repeals and amends requirements that large combination utilities plan for decarbonization and advance electrification. These changes had also recently been enacted during the 2024 legislative session.

It is I-2066’s breadth that underlies plaintiffs’ challenge in Climate Solutions v. State of Washington. The plaintiffs argue that I-2066 violates Washington’s state constitution, which has a “single subject rule” – requiring that “no bill shall embrace more than one subject” – and a “title-in-subject rule” stating that a bill’s subject “shall be expressed in the title” of the legislation. More than forty states have some version of a single subject rule, which in the case of a ballot initiative can help voters better understand what they’re voting for or against.

The Climate Solutions plaintiffs argue that I-2066 violates Washington’s single subject rule “by requiring voters who may support affirming access to natural gas service, to vote for unrelated repeals and other changes to state law provisions that promote clean energy and reduce greenhouse gas emissions (among other unrelated changes).” The plaintiffs further argue that “I-2066 changes state laws regarding emissions regulation and amends the Clean Air Act, but these and other changes in the Initiative are not reflected in the title,” thus violating the subject-in-title rule. Plaintiffs also allege that I-2066 in runs afoul of Washington’s constitution “by failing to state in full each of the state law provisions it would alter.”

State preemption of local law is difficult to meaningfully combat. In legal terms, cities and other local governments are “political subdivisions” of the states in which they are located. They lack authority beyond that delegated to them under state law. When a state legislature wishes to constrain local action, it generally may do so unless it is itself limited by the state or federal constitution or by federal law. Moreover, litigation is costly and time-intensive. Many local governments, when faced with preemption by state law, will weigh the state’s broad legislative authority against their own capacity in choosing not to challenge state law. Whether or not there are state constitutional arguments to challenge other states’ natural gas preemption laws is beyond the scope of this post; rather, it suffices to say that these laws have gone almost entirely untested in court.

I-2066 offers unique visibility into the potential constraints on state preemptive action, and on what pushing back on state authority can look like. State law – whether originated in the legislature or by the voters – may not exceed the state’s own authority under federal or state law. Given the wide reaching nature of some states’ preemption laws, Climate Solutions v. State of Washington may offer a legal framework to contest, or at least question, the limitations on states’ power to preempt. Of course, the Climate Solutions plaintiffs’ claims are perhaps more form than substance: had the provisions of I-2066 been approved by voters in several separate, appropriately-titled ballot initiatives, plaintiffs would not have these claims. But then, that seems to be plaintiffs’ point: voters might not have approved I-2066 had they understood its breadth.

Amy Turner is the Director of the Cities Climate Law Initiative at the Sabin Center for Climate Change Law at Columbia Law School.