New Lawsuit Applies More Pressure On Denver To Change Gas Appliance Restrictions
For the second time in less than four months, a coalition of real estate and hospitality industry groups has filed a lawsuit against the city and county of Denver over regulations that restrict the use of gas appliances in buildings.
The list of plaintiffs in the latest suit includes the Restaurant Law Center, the National Association of Home Builders, the Colorado Restaurant Association, the Home Builders Association of Metropolitan Denver, the American Hotel & Lodging Association, the National Apartment Association and the National Propane Gas Association.
At issue is the Energize Denver ordinance, which is intended to eliminate greenhouse gas emissions in the city by 2040, in part by phasing out gas-fired space and water heating and cooling equipment and replacing them with electrical appliances.
The ordinance targets all buildings with floor areas of 25K SF or more, according to a post by law firm Otten Johnson Robinson Neff + Ragonetti. Buildings between 5K SF and 25K SF will need to reduce their energy use via new lighting density standards.
In their suit, filed in federal court last month, the plaintiffs said the federal Energy Policy and Conservation Act “already regulates the energy use of such appliances and expressly and broadly preempts state and local laws on that subject.”
“Banning the use of gas appliances in new and existing buildings is at odds with the needs of Denver residents and businesses for affordable, resilient, and reliable energy,” the suit says.
In April, a coalition of Colorado business groups filed its own federal lawsuit against Colorado and the city of Denver, claiming the new building performance regulations would create “new and unexpected burdens” on an already challenged real estate sector.
That sentiment was echoed by Angelo Amador, executive director at the Restaurant Law Center, one of the plaintiffs in the July lawsuit. The legal challenge was necessary because of its potentially devastating economic impact on metro Denver restaurants, Amador told Bisnow in an email.
“It would be cost prohibitive for many restaurants in Denver to convert gas water heaters to traditional electric water heaters, that would be less energy efficient than the current gas units they use,” Amador said. “To make such a conversion, you would have to take out the gas units, cap the gas lines, and install electric lines, requiring restaurants to tear open and reconstruct walls, etc.”
The July lawsuit comes down to a matter of choice, according to Thomas Ward, vice president of legal advocacy at the National Association of Home Builders.
His organization is challenging similar bans across the country. NAHB had filed an amicus brief when Berkeley, California, instituted its first-in-the-nation ban on natural gas in new construction in 2020. The 9th U.S. Circuit Court of Appeals in San Francisco overturned the Berkeley ordinance last year.
“We can’t have our natural gas policy, our energy policy, be created by the locality of the different places around the country,” Ward told Bisnow.
He also said his coalition’s lawsuit is only challenging the outlawing of natural gas appliances and believes the Denver ordinance, as well as similar regulations found elsewhere in the U.S., are a gut reaction to climate change.
“These localities think they are having an impact but don’t have that big of an impact,” he said. “Climate change is a planetwide phenomenon. Diminishing the CO2 in one municipality will not have an impact on the amount of CO2 in the atmosphere planetwide. If there is policy, it must be done on a federal level.”
Ward also questioned whether many major municipalities have the infrastructure in place to support a switch to all-electric appliances.
“I don’t know that our grid can support that,” he said. “I think even some of the electric companies say our grid can’t support everything going electric right now. This goes back to the federal level. If we’re going to do it this way, we've got to plan out into the future.”
