To: Board of Supervisors
From: John Kopchik, Director, Conservation and Development
Report Title: Suspend Enforcement of All-Electric Building Requirement
☒Recommendation of the County Administrator ☐ Recommendation of Board Committee
RECOMMENDATIONS:
1. DIRECT the County Building Official to suspend enforcement of the County’s all-electric building requirement (Section 74-4.010 of the County Ordinance Code).
2. DIRECT the Department of Conservation and Development (DCD) to inform the public of the various benefits of constructing all-electric buildings.
3. DIRECT the DCD Director, or designee, to amend the Draft Climate Action Plan to reflect the suspension of the County’s all-electric building requirement, and to evaluate alternative methods of meeting the County’s Climate Action Plan goals.
FISCAL IMPACT:
None.
BACKGROUND:
Section 74-4.010 of the County Ordinance Code requires that any new residential building, detached accessory dwelling unit, hotel, office, or retail building constructed in the unincorporated area of the County be constructed as an all-electric building, i.e., a building without natural gas plumbing. The County is one of approximately 68 California local agencies that have adopted some form of an all-electric building requirement.
On January 2, 2024, the U.S. Ninth Circuit Court of Appeals invalidated a City of Berkeley ordinance that prohibited natural gas infrastructure in new buildings. (California Rest. Ass'n v. City of Berkeley (9th Cir. 2024) 89 F.4th 1094.) The court held that the federal Energy Policy and Conservation Act (“EPCA”), a federal statute that regulates the energy efficiency of several consumer products including water heaters, furnaces, stoves, and HVAC systems, precludes cities and counties from adopting ordinances that prohibit the installation of gas plumbing in buildings.
The County’s all-electric building requirement, like the invalidated City of Berkeley ordinance, prohibits the installation of gas plumbing in new buildings. Accordingly, the Director of the Department of Conservation and Development (DCD) recommends that the Board suspend enforcement of the County’s all-electric building requirement while DCD staff evaluates alternative methods of meeting the County’s Climate Action Plan goals while also complying with the Ninth Circuit’s decision.
If the enforcement of the County’s all-electric building requirements is suspended, building permit applicants may continue to voluntarily design and construct all-electric buildings. DCD staff will continue to inform the public about the benefits of all-electric construction, which include: the environmental and public health benefits of eliminating greenhouse gas (GHG) emissions associated with burning fossil fuels; foregoing the expense of installing gas pipes in new buildings; realizing any available financial incentives for installation of all-electric appliances; and preparing for the potential discontinuation of gas appliances in the future resulting from possible regulatory actions by regional, state or federal agencies.
The County’s Draft Climate Action Plan (Draft CAP), which currently is out for public review, assumes continued enforcement of the County’s all-electric building requirements. With the suspension of the all-electric building requirements, the Draft CAP will need to be modified. However, consistent with the Draft CAP, DCD will continue to operate energy efficiency programs and partner with other agencies to assist property owners in taking advantage of various financial incentives promoting energy efficient design and construction, including the installation of electric appliances, clean energy systems, and battery storage to facilitate the use of electricity as the primary energy source in new and existing buildings. DCD will also continue to evaluate additional alternative mechanisms to incentivize building construction that minimizes GHG emissions and otherwise helps meet the County’s climate goals.
CONSEQUENCE OF NEGATIVE ACTION:
If the Board of Supervisors does not approve the recommended actions, DCD will continue to enforce all-electric building requirements that are not consistent with the decision of the U.S. Ninth Circuit Court of Appeals.