Lawsuit over natural gas is latest challenge to Montgomery County environmental laws

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Montgomery County is facing another lawsuit challenging local laws that seek to phase out natural gas appliances.

The owners of two large apartment buildings, three trade groups and a utility sued Maryland’s largest county on Friday, alleging a 2022 law establishing building energy performance standards is preempted by a federal energy law.

The lawsuit is the second seeking to block Montgomery County laws aimed at improving air quality and public health. The first lawsuit came in October against the county’s Decarbonization Law.

Many of the same plaintiffs also sued Maryland’s environment secretary in January over the state’s building energy performance standards, which took effect late last year and seek to phase out gas appliances.

The plaintiffs in the new suit are the Elizabeth Condominium Association of Chevy Chase, Promenade Towers Mutual Housing Corporation of Bethesda, the National Association of Home Builders, the Maryland Building Industry Association, the Restaurant Law Center and Washington Gas Light Company. The Promenade, according to the complaint, has more than 1,000 units. The Elizabeth has 363 units, according to Compass Real Estate.

They sued on March 27 in Maryland federal court, arguing that the law would hurt business and that the federal Energy Policy and Conservation Act prohibits local governments from enacting inconsistent standards.

RELATED: Developers sue over MD regulation on natural gas

The BEPS law applies to commercial and multifamily buildings in the county over 25,000 square feet, requiring them to benchmark their energy use intensity, then decrease that intensity.

“The Montgomery County BEPS fall within the heartland of EPCA’s express preemption provision because they regulate and restrict the energy use and efficiency of these covered appliances by restricting the amount of energy used by covered buildings,” the complaint states.

The law firm Baker Botts is representing the plaintiffs in all three suits.

In all three cases, the plaintiffs cite a recent decision by the U.S. Court of Appeals for the Ninth Circuit, which blocked a ban on gas appliances in Berkeley, California, because it was preempted by the same federal law. The decision prompted Eugene, Oregon, to reverse a similar ban.

The decision states, in part, “EPCA would no doubt preempt an ordinance that directly prohibits the use of covered natural gas appliances in new buildings.”

The county’s decarbonization law — which the October lawsuit challenged — took effect in March 2023, and represented another part of the county’s goal to become carbon-neutral by 2035.

That law requires the county executive to promulgate regulations by the end of 2026 on the use of natural gas in new construction and major renovations. There are several exemptions.

In its motion to dismiss the October lawsuit, the county argued the plaintiffs lacked standing and their claim was not ripe. It argued they could not prove they were harmed by the law, because its regulations are not yet final; the county executive has until the end of next year to issue those regulations.

The Sierra Club, the Chesapeake Climate Action Network and the Public Health Law Center filed amicus briefs in support of the decarbonization law, arguing gas appliances harm human health and contribute to climate change. They noted poor air quality and high rates of asthma among children in households with gas stoves, among other effects.

“There is an established scientific basis and growing public understanding that methane gas-burning appliances inside our homes, schools, and workplaces are making us sick,” the joint amicus brief stated.