As Feds Sidestep Siting Decisions for EV Charging, Will Chaos Ensue?
The widespread adoption of electric vehicles (“EVs”) requires the installation of tens of thousands of new public electric charging stations. The federal government has left siting decisions largely to state and local governments, who have been adopting a patchwork of different siting regulations. Will chaos ensue?
In the 2021 Infrastructure Investment and Jobs Act (“IIJA”), Congress authorized $7.5 billion for charging station buildout.[i] Then the Federal Highway Administration (“FHWA”) issued a proposed rule that would establish some technical standards for federally funded stations,[ii] and approved State plans for spending the federal funding.[iii] Beyond that, the federal government has left decisions about siting electric charging stations to states and localities.[iv]
Not surprisingly, the priorities and approaches of different states and localities toward siting EV stations vary widely. Some jurisdictions have rushed to make their communities “EV-ready”[v] by revising their building codes to make siting easier for the private companies that own charging stations. Other states, such as Florida and Missouri, have taken a quite different, protectionist approach favoring traditional gasoline stations. This article analyzes of how different states and localities have approached siting issues associated with EV charging infrastructure and what we might expect to see in the future, as state legislatures and city councils begin their 2023 sessions.
State Pro-Charging Measures
State-Mandated Allowed Use
Some states have taken legislative steps to remove zoning as a potential obstacle to siting of public charging infrastructure. In 2009, Washington passed one of the nation’s first state-level comprehensive EV infrastructure laws. Among other things, the law required many local governments in the Seattle-Tacoma metropolitan area to “allow [EV] infrastructure as a use in all areas except those zoned for residential or resource use or critical areas.”[vi]
The effect of a provision like this one is to make clear that charging infrastructure may be sited in such areas without seeking special approval. The following year, the Washington Department of Commerce and Puget Sound Regional Council published guidance for local governments complying with the law. The guidance noted that Level 1 and Level 2 charging infrastructure was permitted in residential districts “as accessory to a principal outright permitted use or permitted conditional use.”[vii] Washington has also enabled the state energy siting council to preempt local zoning restrictions regarding the siting of facilities that produce EVs or charging stations.[viii] In other words, Washington is making it extremely easy for its local jurisdictions to promote electric charging.
State-Mandated “EV Readiness”
A few states and the District of Columbia are starting to consider and pass “EV Readiness” laws.[ix] Generally speaking, such laws require new or renovated commercial and larger residential buildings to include some amount of EV charging accommodation in the design and construction of any parking spaces. Jurisdictions define different degrees of readiness and mandate set asides for some or all such degrees within a given type of project. For example, an “EV Capable” space could require only the infrastructure (conduit, breaker space, junction box, etc.), but not actual charging equipment, for the future installation of a charging station. “EV Ready” spaces might require both the infrastructure of an “EV Capable” space and a wired outlet. While the charging unit itself is still absent, an EV driver could charge the vehicle using the vehicle’s portable charger. Finally, “EV Installed” spaces could require the infrastructure, outlet, and charging station itself.[x]
Washington is also in the vanguard of using building codes to promote electrification. The same 2009 law discussed above also directed the state building code council to adopt rules for EV charging infrastructure requirements.[xi] Until July 1, 2023, the statewide building code requires that “[w]here parking is provided, ten percent of parking spaces shall be provided with electric vehicle charging infrastructure,” where charging infrastructure means essentially “EV Capable” as defined above. Beginning this July 1, parking areas associated with many new developments must include minimum proportions of EV Capable, EV Ready, and EV Installed spaces.[xii]
State Preemption of HOA Charging Installation Restrictions
Some states have limited the abilities of homeowners’ associations (“HOAs”) and similar community and condominium organizations to put up roadblocks to residential charging. In 2020, Virginia passed a law that prohibits community associations from stopping the installation of EV charging stations within the boundaries of a member’s designated parking space, or, in the case of a property owners’ association, the boundaries of a lot owner’s property. However, a community association still may prohibit or restrict installation of charging stations in common areas or on the exterior of the owner’s property, or at least establish reasonable restrictions as to the manner of their placement.[xiii] Maryland and New York passed similar measures in 2021 and 2022, respectively.[xiv]
State Measures Taking Away Local Pro-Charging Tools
Florida’s Gas Station Law
But then, there are states and localities at the other end of the spectrum, who are stepping in to preserve the traditional retail gasoline market by regulating placement of EV charging stations. In June 2021, the Florida legislature prohibited local governments from requiring a fuel retailer to “install or invest in a particular kind of fueling infrastructure, including, but not limited to, electric vehicle charging stations.”[xv] State Senator Travis Hutson proposed the bill after several California cities took steps to ban new gas stations, saying he did not want Florida cities to “tak[e] away energy they think is bad energy.”[xvi] During committee hearings, State Representative Tom Fabricio, another sponsor, referenced a Tampa City Council resolution that would have a set a goal for the city to move to 100% clean energy by 2030, stating that “we can’t simply eliminate the sale of petroleum, and that’s what this bill seeks to do.”[xvii]
An early draft of the Senate bill would have invalidated local comprehensive plans that prohibit, restrict, or mandate energy-related land use. That broad language was taken out in subsequent drafts, perhaps because, as the Senate staff report noted: “To the extent that the bill may retroactively abrogate [contracts for services relating to energy infrastructure], the bill may impair a local government’s vested rights or contractual obligations or ability to satisfy a contractual obligation,” in contravention of the Florida Constitution.[xviii] In April 2021, the House passed its bill comfortably with primarily Republican support. The Florida Senate passed the House bill by a similar margin days later. In June, Florida Governor Ron DeSantis signed the bill into law, effective immediately.
Missouri’s Building Code Bill
In Missouri, three developments around EV Readiness prompted a legislative response. In January 2021, the St. Louis Board of Aldermen unanimously passed a package of ordinances mandating that parking for new construction and major renovations of certain residential, multi-family, and commercial buildings include both accommodations for easy installation of EV charging capacity and charging stations themselves.[xix] The city’s mayor signed the ordinances into law weeks later.[xx] In March, the City of Richmond Heights—an inner-ring St. Louis suburb—passed two ordinances establishing EV-ready requirements for new residential construction.[xxi] The following October, a divided St. Louis County Council passed an ordinance known as the “Electric Vehicle Charging Code” which imposed similar requirements in somewhat similar circumstances for new and modified construction in areas under its jurisdiction (i.e., the unincorporated areas of the county where one-third of the county’s population resides).[xxii] And in December, the City of Brentwood—Richmond Heights’ nearest neighbor to the southwest—passed its own EV-readiness ordinance concerning new residential construction.[xxiii]
By early 2022, legislators in Jefferson City had decided the St. Louis-area measures had gone too far. In response to these local ordinances, at the start of the 2022 legislative session, State Representative Jim Murphy of St. Louis County introduced a short bill that would require political subdivisions that mandate the installation of EV charging stations at “any nonautomotive fueling station business” to “pay all costs associated with the installation, maintenance, and operation” of such stations.[xxiv] The bill was later broadened to cover mandated charging stations “at any business,” though the local pay condition does not apply to voluntary “grant agreements between business and political subdivisions that include requirements for charging stations.”[xxv] In mid-March, 2022, the bill passed the House along party lines, and the Senate’s Commerce, Consumer Protection, Energy and the Environment Committee advanced it six weeks later, but the legislative session ended before further action could be taken.[xxvi] The bill (or a similar version of it) is expected to pass when the General Assembly reconvenes in 2023.[xxvii]
Between the enactment and extension of generous federal incentives (discussed here) and the adoption of outright bans of the sale of gas powered vehicles in some states, EV adoption is accelerating. The California Air Resources Board (CARB), for example recently approved a rule that requires all vehicles sold in the state to be EVs, plug-in hybrid EVs, or hydrogen fuel cell vehicles by 2035.[xxviii] Washington, Massachusetts, and Virginia are among the states that have followed suit.[xxix] In 2022, the EV share of total light-duty vehicles sold in the United States surpassed 5% for the first time ever.[xxx]
But while the race is on in many states to switch from gas-powered vehicles to EVs, anyone who already owns an EV will tell you that the vehicle is only as good as the convenience of charging it. And anyone old enough to remember the rollout of cellular towers knows how local governments and community groups can impact siting decisions (discussed here). As with any new technology, there will be friction in the switch from your corner gas station to your neighborhood EV station. Companies making EVs or installing the infrastructure to charge them need pay heed.
[i] Pub. L. No. 117-58, Div. A, Tit. I, § 11101(b)(1)(C), 135 Stat. 444–45 (2022); id., Div. J., Tit. VIII, 135 Stat. 1421–26.
[ii]National Electric Vehicle Infrastructure Formula Program, 87 Fed. Reg. 37,262 (proposed June 22, 2022) (to be codified at 23 C.F.R. pt. 680).
[iii] Federal Highway Administration, Historic Step: All Fifty States Plus D.C. and Puerto Rico Greenlit to Move EV Charging Networks Forward, Covering 75,000 Miles of Highway (Sept. 27, 2022), https://highways.dot.gov/
[iv] Within Constitutional limits, zoning laws are traditionally considered within the police power of State and local governments. SeeVillage of Belle Terre v. Boraas, 416 U.S. 1, 4 (1974).
[v] Forward thinking yields future dividends when it comes to EV charging infrastructure. A 2016 study found that the cost of completely retrofitting a charging station from scratch was nearly four times greater than the cost of making a spot EV-ready at the time of construction, then later installing a station. Plug-In Electric Vehicle Infrastructure Cost-Effectiveness Report for San Francisco (Nov. 17, 2016), http://evchargingpros.com/wp-content/uploads/2017/04/City-of-SF-PEV-Infrastructure-Cost-Effectiveness-Report-2016.pdf.
[vi] Electric Vehicles, 2009 Wash. Laws Ch. 459, §§ 9-13 (codified as amended at 35.63 RCW, 35A.63 RCW, 36.70 RCW, 36.70A RCW). The original bill included a section providing: “The state preempts the regulation of electric vehicle infrastructure except as specified in section 21 of this act, provided that local jurisdictions retain their traditional regulatory permitting authority for administrative permit issuance, such as electrical and building permits.” Wash. H.B. 1481 (2009), § 16(1), available athttps://lawfilesext.leg.wa.gov/biennium/2009-10/Pdf/Bills/House%20Bills/1481.pdf?q=20221128090738. That provision was not included in the final bill, as passed.
[vii] Electric Vehicle Infrastructure: A Guide for Local Governments in Washington State 22 (July 2010), https://www.psrc.org/sites/default/files/2022-03/electric-vehicle-guidance.pdf.
[viii] 2022 Wash. Laws Ch. 183, §§ 2, 6, codified at RCW 80.50.020(23) and 80.50.060.
[ix] D.C. Law B23-0193-Electric Vehicle Readiness Amendment Act of 2019; H.B. 3125, 102d Gen. Assemb. (Ill. 2022); H.B. 1218, 73d Gen. Assemb., Reg. Sess. (Colo. 2022).
[x]See, e.g., Charged Future, What Is the Difference Between EV Capable, EV Ready, and EV Installed? (Nov. 23, 2020), https://www.chargedfuture.com/ev-capable-ev-ready-and-ev-installed/.
[xi] Electric Vehicles, 2009 Wash. Laws Ch. 459, § 16 (codified as amended at RCW 19.27.540).
[xii] Wash. Admin. Code § 51-50-0429.
[xiii] Common interest communities; electric vehicle charging stations permitted, ch. 1012 (Va. 2020).
[xiv] Electric Vehicle Recharging Equipment for Multifamily Units Act, ch. 455 (Md. 2021); Electric Vehicles Rights Act, ch. 627 (N.Y. 2022).
[xv] Express Preemption of Fuel Retailers and Related Transportation Infrastructure, H.B. 839, § 1 (2021).
[xvi] News Service of Florida, A ban on new gas stations? Not in Florida, lawmakers say, South Florida Sun Sentinel (Apr. 23, 2021), https://www.sun-sentinel.com/news/politics/fl-ne-nsf-florida-prevents-gas-station-bans-20210423-2agoaswpfbc5ng6laephadjeau-story.html.
[xvii] Haley Brown, Gas station preemption bill ready for House vote, Florida Politics (Apr. 20, 2021), https://floridapolitics.com/archives/422191-gas-station-preemption-bill-ready-for-house-vote/.
[xviii] S.B. 856, Bill Analysis and Fiscal Impact § IV(E) (Mar. 8, 2021), https://flsenate.gov/Session/Bill/2021/856/Analyses/2021s00856.pre.ri.PDF.
[xix] St. Louis, Mo., Electric Vehicle Charging Equipment, Ordinance 71284 (2022), https://www.stlouis-mo.gov/gov... (for new construction); St. Louis, Mo., EV Ready, Ordinance 71285 (2022), https://www.stlouis-mo.gov/government/city-laws/board-bills/boardbill.cfm?bbDetail=true&BBId=13709 (for residences); St. Louis, Mo., Electric Vehicle Charging Equipment Codes, Ordinance 71292 (2022), https://www.stlouis-mo.gov/government/city-laws/board-bills/boardbill.cfm?bbDetail=true&BBId=13728 (for “major” renovations, i.e., those where more than 50% of the building area is being reconfigured). Specifically, parking lots featuring 50 or more spaces associated with new or renovated commercial construction must be EV-Installed for 2% of those spaces and EV-Ready for an additional 5% of those spaces. New businesses with lots of 10-49 spaces need one or two EV-Ready spaces and up to one EV-installed space, depending on the total number of spaces. New businesses where parking turnover is greater, such as restaurants, daycare centers, and gas stations (as well as new places of worship), are exempted. New and renovated apartment buildings and similar multifamily dwellings with five or more parking spaces must meet similar requirements, which double starting in 2025 with respect to the minimum number of EV-Ready spaces. New single dwelling units with a garage, carport, or off-street parking must have one EV-Ready parking space, except where the parking is 50 or more feet from the residence or where the dwelling has “insufficient electrical service capacity.”
[xx]Mayor Krewson Signs Transformative Electric Vehicle Ordinances Into Law, Office of the Mayor (Feb. 11, 2021), https://www.stlouis-mo.gov/government/departments/mayor/news/electric-vehicle-2021.cfm.
[xxi] City of Richmond Heights, Mo., EV Spaces in Multifamily Occupancies, Ordinance No. 5459 (Mar. 1, 2021), https://cms8.revize.com/revize/richmondmo/Document_center/Ordinances/SFINANCE%20CO21033013551.pdf; City of Richmond Heights, Mo., The International Energy Conservation Code, Ordinance No. 5458 (Mar. 1, 2021), https://cms8.revize.com/revize/richmondmo/Document_center/Ordinances/SFINANCE%20CO21033013550%20(1).pdf. The ordinances require new one- and two-family dwellings and townhouses with a dedicated parking garage or on-site parking spaces to include one EV-ready parking space. New multifamily buildings must provide minimum EV-ready and EV-capable (i.e., having electrical panel capacity and physical space to support a branch circuit and electrical raceway necessary for an EV charging station) spaces based on the total number of spaces; for buildings with more than ten spaces, all spaces must be EV-capable or EV-ready.
[xxii] St. Louis, Mo., Electric Vehicle Charging Code, Bill No. 75 (2021), https://www.stlmuni.org/wp-content/uploads/2021/10/STL-County-Commercial-EV-Bill-No.-75-2021.pdf (codified at St. Louis, Mo., Electric Vehicle Charging Code, chapter 1119, https://library.municode.com/mo/st._louis_county/codes/code_of_ordinances?nodeId=TITXIPUWOBURE_CH1119ELVECHCO. The ordinance applies broadly to “Commercial, Industrial, Institutional, Recreation, Entertainment, Cultural, Municipal and Park Land Uses,” with the only exceptions thereto (residential dwellings are omitted in the first instance) being gas stations, buildings without a designated parking space, and parking spaces located in the public right-of-way. The EV charging requirements are triggered for new construction, major remodels, and changes in building use, as well as when existing parking lots are resurfaced or remodeled. The 10% EV-ready and 2% EV-wired parking spaces, where the building has ten or more spaces (rounding up to the nearest whole number). After Representative Murphy’s bill, discussed below passed the house, the county council updated its ordinances to limit their applicability to lots with more than 30 spaces, specifically exempting a number of business types and removing parking lot resurfacing and changes in building use as triggers. Madasyn Lee, County amends legislation requiring businesses to install EV charging stations, West Newsmagazine (Apr. 4, 2022), https://www.westnewsmagazine.com/news/county-amends-legislation-requiring-businesses-to-install-ev-charging-stations/article_63e82294-b095-11ec-9b4b-a3ed5bb8fac4.html; Nassim Benchaabane, St. Louis County Council eases requirements to add new electric vehicle charging stations, St. Louis Post-Dispatch (Mar. 29, 2022), https://www.stltoday.com/news/local/govt-and-politics/st-louis-county-council-eases-requirements-to-add-new-electric-vehicle-charging-stations/article_4666262c-0f26-5fc8-84b4-858bca85395e.html.
[xxiii] Board of Aldermen Regular Meeting Minutes (Dec. 6, 2021), https://www.brentwoodmo.org/AgendaCenter/ViewFile/Minutes/_12062021-1441; City of Brentwood, Mo., Bill No. 6356.1 (2021), https://go.boarddocs.com/mo/cob/Board.nsf/files/C9G3XW090FF2/$file/Bill%20No.%206356.1%20-%2012.06.2021%20-%20Clean%20remove%20Alderman%20Lochmoellers%20name%2012%206%202021.pdf. The Brentwood ordinance is substantially the same as the Richmond Heights ordinances.
[xxiv] H.B. 1584, 101st Gen. Assemb. Reg. Sess. (Mo. 2022).
[xxvii] In comparison, a 2021 Idaho bill would have prevented local governments from enacting their own electrical, mechanical, and plumbing codes, thereby allowing the legislature to preempt local law regarding incorporation of EV charging infrastructure into new buildings. The bill died in committee, apparently due at least in part to the efforts of conservation activists. H.B. 254, 66th Leg. Reg. Sess. (Idaho 2021); Attempts to Undermine Idaho’s Clean Energy Future, Conservation Voters for Idaho (Mar. 11, 2021), https://cvidaho.org/attempts-to-undermine-idahos-clean-energy-future/. Another 2021 Idaho bill would have recodified state energy conservation standards from the state building code to a new chapter, allowing the legislature to “more effectively exercise oversight of changes to energy conservation codes.” H.B. 274, 66th Leg. Reg. Sess. (Idaho 2021); Statement of Purpose. H.B. 274 (Mar. 2, 2021). For a technical brief discussing best practices for energy code updates that reflect the growing need for EV charging infrastructure, see U.S. Dep’t of Energy, Technical Brief: Electric Vehicle Charging for Residential and Commercial Energy Codes (July 2021), https://www.energycodes.gov/sites/default/files/2021-07/TechBrief_EV_Charging_July2021.pdf.
[xxviii] California Air Resources Board, California moves to accelerate to 100% new zero-emission vehicle sales by 2035 (Aug. 25, 2022), https://ww2.arb.ca.gov/news/california-moves-accelerate-100-new-zero-emission-vehicle-sales-2035. Because the rule is a new one, it needs a separate Clean Air Act waiver from EPA before taking effect. 42 U.S.C. § 7543(b).
[xxix] RCW 70A.30.010; An Act Driving Clean Energy and Offshore Wind, ch. 179, §§ 46, 96 (Mass. 2022). https://malegislature.gov/Laws/SessionLaws/Acts/2022/Chapter179; Va. Code § 10.1-1307.04.
[xxx] Mike Colias, Wall Street Journal, U.S. EV Sales Jolted Higher in 2022 as Newcomers Target Tesla (Jan. 6, 2023), https://www.wsj.com/articles/u-s-ev-sales-jolted-higher-in-2022-as-newcomers-target-tesla-11672981834?mod=rsswn; Sean Tucker, Kelley Blue Book, New Car Sales Fell in 2022, But New Electric Car Sales Rose Dramatically (Jan. 17, 2023), https://www.kbb.com/car-news/new-car-sales-fell-in-2022-but-new-electric-car-sales-rose-dramatically/.