Trade groups sue to stop Denver’s limits on gas appliances

4.14D Rentals scaled

A drone shot of Denver during March 2020. (Courtesy Guerilla Capturing)

An unlikely alliance of homebuilders, hoteliers, restaurateurs and energy firms is hoping to end Denver’s ban on natural gas furnaces and water heaters in new construction.

On July 3, seven trade groups filed a lawsuit in Denver’s federal court that asks U.S. Magistrate Judge Kathryn Starnella to declare the prohibition void and unenforceable. The groups claim the ban is preempted by federal law and inflicting “serious and irreparable harm.”

“(It) is fundamentally inconsistent with the public interest and consumer choice, exacerbates Denver’s housing crisis, and aims to shift Denver’s energy demand to an electric system that is facing historic and increasing electricity demand,” according to the lawsuit.

The Denver City Attorney’s Office declined to comment on those allegations Monday.

Early last year, the Denver City Council adopted a building code that included the ban. Some restrictions took effect this year and others will roll out between 2025 and 2030.

“Denver has spoken loud and clear that taking climate action is a top priority. Codes like these will help get us to zero emissions by 2040,” then-Mayor Michael Hancock said at the time.

The question before Judge Starnella is not whether the code is a positive change but whether it is lawful. Energy appliances are regulated by a 1970s-era federal law called the Energy Policy and Conservation Act, which limits the power of cities to regulate the appliances.

Last year, a federal court sided with a restaurant group and voided a first-in-the-country ban on natural gas appliances in Berkeley, California, because it ran afoul of the EPCA.

The plaintiffs in last week’s lawsuit are the Restaurant Law Center, National Association of Home Builders, Colorado Restaurant Association, Home Builders Association of Metropolitan Denver, American Hotel & Lodging Association, National Apartment Association and National Propane Gas Association. They are suing the City and County of Denver.

“The ban’s chilling effect is already undermining the plaintiffs’ members’ livelihoods, harming revenues, disrupting long-term business strategy and asset planning, jeopardizing jobs and hiring and training programs, and hampering the ongoing maintenance of existing and development of new desperately needed multifamily homes,” the plaintiffs say.

Their lawyers are Megan Berge and Scott Novak with the national firm Baker Botts.

Their lawsuit is the second to challenge Denver’s new limits on gas appliances. In April, the Colorado Apartment Association, Apartment Association of Metro Denver and Colorado Hotel and Lodging Association sued to stop the city restrictions and a state law that will impose limits next year. The city and state’s motions to dismiss that case are pending.

4.14D Rentals scaled

A drone shot of Denver during March 2020. (Courtesy Guerilla Capturing)

An unlikely alliance of homebuilders, hoteliers, restaurateurs and energy firms is hoping to end Denver’s ban on natural gas furnaces and water heaters in new construction.

On July 3, seven trade groups filed a lawsuit in Denver’s federal court that asks U.S. Magistrate Judge Kathryn Starnella to declare the prohibition void and unenforceable. The groups claim the ban is preempted by federal law and inflicting “serious and irreparable harm.”

“(It) is fundamentally inconsistent with the public interest and consumer choice, exacerbates Denver’s housing crisis, and aims to shift Denver’s energy demand to an electric system that is facing historic and increasing electricity demand,” according to the lawsuit.

The Denver City Attorney’s Office declined to comment on those allegations Monday.

Early last year, the Denver City Council adopted a building code that included the ban. Some restrictions took effect this year and others will roll out between 2025 and 2030.

“Denver has spoken loud and clear that taking climate action is a top priority. Codes like these will help get us to zero emissions by 2040,” then-Mayor Michael Hancock said at the time.

The question before Judge Starnella is not whether the code is a positive change but whether it is lawful. Energy appliances are regulated by a 1970s-era federal law called the Energy Policy and Conservation Act, which limits the power of cities to regulate the appliances.

Last year, a federal court sided with a restaurant group and voided a first-in-the-country ban on natural gas appliances in Berkeley, California, because it ran afoul of the EPCA.

The plaintiffs in last week’s lawsuit are the Restaurant Law Center, National Association of Home Builders, Colorado Restaurant Association, Home Builders Association of Metropolitan Denver, American Hotel & Lodging Association, National Apartment Association and National Propane Gas Association. They are suing the City and County of Denver.

“The ban’s chilling effect is already undermining the plaintiffs’ members’ livelihoods, harming revenues, disrupting long-term business strategy and asset planning, jeopardizing jobs and hiring and training programs, and hampering the ongoing maintenance of existing and development of new desperately needed multifamily homes,” the plaintiffs say.

Their lawyers are Megan Berge and Scott Novak with the national firm Baker Botts.

Their lawsuit is the second to challenge Denver’s new limits on gas appliances. In April, the Colorado Apartment Association, Apartment Association of Metro Denver and Colorado Hotel and Lodging Association sued to stop the city restrictions and a state law that will impose limits next year. The city and state’s motions to dismiss that case are pending.

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