In December we wrote about the issues with the State Building Code Council (SBCC) adopting amendments to the energy code designed to effectively prohibit natural gas water and space heating in new residential and commercial construction. While monitoring that rulemaking process we noticed the Small Business Economic Impact Statement (SBEIS) included in the CR-102 filing for the amendments did not meet statutory requirements of the Regulatory Fairness Act.

We pointed these errors out to the SBCC during the public hearings so they could resolve the issues before continuing with the rulemaking process. Members of the SBCC chose not to address the noncompliance issues and adopted the amendments anyways (while having to clean up some other errors along the way).

We filed a petition to repeal the amendments and restart the rulemaking process. The SBCC is set to hear our petition at their next regular council meeting this Friday, January 19, at 10 AM. Public comment will be accepted during the meeting. The SBCC will likely need to act on the petitions during the meeting to meet the deadline to respond to our petition by February 6.

Agencies are required to accurately calculate the costs of compliance for small businesses and then mitigate those costs for any new rules they are proposing. The SBCC has failed to accurately calculate those costs and report them as required by the Regulatory Fairness Act. SBCC members can’t say they mitigated the costs of the new requirements because they do not know what the true costs are.

Regulations can provide valuable benefits, as well as tremendous costs. The Regulatory Fairness Act deals with the very specific costs for small businesses required to comply with regulations. The legislature succinctly described the negative impacts regulatory costs can have on small businesses in their findings for the law.

“The legislature finds that administrative rules adopted by state agencies can have a disproportionate impact on the state's small businesses because of the size of those businesses. This disproportionate impact reduces competition, innovation, employment, and new employment opportunities, and threatens the very existence of some small businesses. The legislature therefore enacts the Regulatory Fairness Act with the intent of reducing the disproportionate impact of state administrative rules on small business.”

This energy code cycle has been incredibly controversial and fraught with errors and legal problems. The SBCC has a chance to regain the public’s trust by holding themselves accountable and resolving their noncompliance with the law.

Below is our public letter supporting repeal of the amendments we have submitted to all Building Code Council members ahead of the meeting. If members of the public wish to also submit public comment they can join the SBCC Zoom meeting as linked on the agenda or email the SBCC at sbcc@des.wa.gov.