Synopsis

A group of industry organizations sued Washington, DC, alleging that the federal Energy Policy and Conservation Act (EPCA) preempts the District’s “net-zero-energy” law. This law mandates the amendment of DC’s energy code to prohibit fuel combustion for thermal energy. This litigation copies the lawsuit challenging Denver’s building-electrification program, and includes several of the same plaintiffs: the Restaurant Law Center, the National Association of Home Builders, and the National Apartment Association.

Why it Matters for Public Health

Fossil fuel combustion is a large and persistent public health threat. Appliances that burn fossil fuels emit a number of air pollutants which can harm health, including particulate matter, nitrogen oxides (NOx), carbon monoxide (CO), methane, and volatile organic compounds (VOCs). NOx and VOCs also combine to create ground-level ozone, the key element of smog. Burning fossil fuels in a building can be particularly bad for the people who live or work in the building.

Requiring new buildings and major renovations to use electric energy instead of burning fuel is an important strategy for reducing this public-health threat. Requiring electrification protects the public in general, and especially people who rent their homes and have little control over the appliances in their building. Energy codes for new construction are a particularly low-cost approach for building owners, since building all-electric initially or electrifying as part of other renovations is generally much cheaper than retrofitting a building as a separate project.

Background

In 2022, the District passed the “Clean Energy DC Building Code Amendment Act (Clean Buildings Act).” This law mandates the creation of regulations requiring certain construction to be “net-zero-energy.” To be “net-zero-energy” a building must not use “[o]n-site fuel combustion…for the provision of thermal energy,” among other elements. These requirements apply to all commercial buildings, including larger residential buildings, whenever they are newly built or subject to “substantial improvement,” meaning construction work that costs at least half of the building’s market value.

The plaintiffs allege that EPCA preempts DC’s law. EPCA preempts state and local (including DC) regulations “concerning the…energy use” of an appliance covered by EPCA. The plaintiffs’ primary argument is that the DC law would prevent the installation of some gas appliances, reducing the gas use of those appliances to zero, and therefore “concerning” the amount of “energy use” by the appliance. This interpretation comes from an opinion by three Ninth Circuit judges in California Restaurant Association v. City of Berkeley, although this court is not obligated to follow the Ninth Circuit, and a group of eleven Ninth Circuit judges have objected to that interpretation, “urg[ing] any future court that interprets the Energy Policy and Conservation Act not to repeat the panel opinion’s mistakes.”

Litigation Status (Open)

The complaint was originally filed October 17, 2024.

On March 26, 2026 the District Court denied the plaintiffs' motion for summary judgment, declaratory relief, and permanent injunction and upheld the Clean Buildings Act, stating is not facially invalid under EPCA.

The plaintiffs appealed this case on April 14, and filed their opening brief with the Court of Appeals on June 8.

The defendant's (District of Columbia) response was due on July 17, and the plaintiffs’ reply was submitted on July 17. On July 24, the Public Health Law Center, Energy and Environmental Law Professors, and several state and local governments submitted amicus briefs in support of the defendant. The appellants filed their reply brief on August 7.

An oral argument is scheduled for September 8.