The commercial and residential building sector accounts for 37 percent of U.S. energy consumption, making sector-wide decarbonization a key priority for combating climate change. Yet new building construction continues to ensure the future of nonrenewable energy by placing natural gas infrastructure between building walls instead of all-electric wiring. While many city and municipal governments began crafting building electrification regulations in recent years, a confluence of challenges threatens their progress. Resource-constrained local governments ultimately struggle to compete when well-resourced natural gas interest groups lobby and litigate against building electrification measures, creating both state and federal preemption hurdles for local laws.
One recent Ninth Circuit decision, California Restaurant Association v. City of Berkeley, highlighted the complexity of these problems when the court federally preempted Berkeley’s ban on natural gas piping in new buildings. The roadblocks faced by Berkeley and other localities raise the question: How can the United States alleviate local litigation burdens and bolster building decarbonization moving forward?
This Note argues that Congress can and should pass new federal building electrification legislation to protect, incentivize, and accelerate local electrification efforts. First, this Note explores the potential to establish short-term electrification incentives targeting on-the-ground construction decisionmakers. Second, this Note demonstrates how a long-term incentive should dovetail into the regulatory scheme, leveraging a cooperative federalism framework for disseminating electrification incentives to local governments and preempting state prohibitions on progress. This Note concludes by calibrating this twofold policy against the strengths and weaknesses of tangential federal policies, particularly the recently enacted Inflation Reduction Act.
