Can we build new housing and not plug into the electricity grid? Recently, the Law Center wanted to help an Oakland-based grassroots group do this, and it brought up some interesting questions about law, about climate justice, and about life.
Here’s the backstory: Our wonderful clients and partners at the Homefulness Project recently completed 4 new units in Oakland, which are now home to several previously unhoused families. Elsewhere, we wrote about the terrible legal saga that nearly prevented Homefulness from completing this project after 10 years of effort. The project faced countless delays and unnecessary costs, and some were the fault of PG&E, our corporate gas and electric utility. Homefulness applied for electrical service in 2015, but the power wasn’t turned on until 2022 (!!). During that time, PG&E delayed inspections, miscommunicated information, and committed an error in the marking of a gas line that resulted in Homefulness doing $16,000 worth of unnecessary work to route construction around what turned out to be a non-existent gas line. On top of that, here’s part of an unintelligible Cost Summary PG&E sent Homefulness, to give you an idea of the mess of expenses they faced to get the power on:
So in 2022, when Homefulness commenced planning for a second multi-unit development for unhoused community members, we all thought it best to avoid connecting to PG&E altogether.
Even without the difficulties Homefulness faced, PG&E has already given Californians ample reasons to unplug from corporate power. The company is enriching investors and executives while the company shuts off power to customers and sets fires across the state. Plus, a study by the Rocky Mountain Institute indicates that grid defection will soon be a cheaper option in many places.
But our question was: Will the City of Oakland issue a Certificate of Occupancy for new housing if it’s not connected to the grid?
It was surprisingly hard to get a direct answer to this question, especially in light of articles like this one in the New York Times claiming that grid defection was becoming a trend in California. Our laws have not caught up to this trend, apparently. Hmm, could that have any relationship to all the money PG&E spends on lobbying?
In any case, we sought help from our friends at People Power Solar Cooperative and from a pro bono team at the Shute, Mihaly & Weinberger law firm. Our pro bono team summarized their research in this very helpful legal memo, also embedded below. We’re sharing this here for anyone else in California who might be exploring this same question.
Here are some takeaways from that research:
First, the City of Oakland’s Chief Building Official told our research team that, to his knowledge, the City has never issued a permit before for off-grid housing. Thus, it’s not even clear what standards the City might apply in approving such a system, or if “grid defection” would even be permissible at all. These questions are governed by both state and city laws, with each city applying its own rules and procedures to the ultimate permitting of projects. It is likely that most cities in California are in the same boat as Oakland: still scratching their heads about off-grid solar. Hopefully this won’t be the case much longer, but it will take some early grid defectors to push cities to get their act together.
Is grid defection even possible? The Building Official cited an Oakland code that says: “Where there is electrical power available within 300 feet of any residential building or structure, such building or structure shall be connected to such electrical power.” On its face, this sounds like any building near the grid must connect to the grid, but our legal team dug into the history of this rule and showed that the legislative intent behind this rule was to meet basic power needs, not to require grid interconnection, specifically. Thus, an off-grid solar electric system could likely meet the requirement for the “electrical power” named in this law.
If we can avoid plugging into the grid, then what requirements must the solar system meet, so that the City will grant a Certificate of Occupancy? One Oakland law requires building owners to provide sufficient heat to maintain a minimum temperature of 68 degrees fahrenheit in habitable spaces. That tells us something about the electric generation capacity requirements of the solar panels, but leaves an open question as to how much battery storage might be needed to plan for unusual weather events, like extended cold and overcast periods. Our researchers discovered that Nevada City, California adopted rules to address this, requiring that off-grid homes have battery storage capacity to cover up to three days of power needs.
Whether or not Oakland and other cities would follow Nevada City’s example is an open question. It almost never freezes in Oakland, so a few days without heat will be uncomfortable, but unlikely to be a life or death situation. Plus, unlike grid-tied systems vulnerable to long-term power outages like those experienced in the tragic Great Texas Freeze, an off-grid system would likely be one of the few places still producing at least some heat. One day’s worth of storage can go a long way. But if a city requires 3 days worth of storage, that will greatly increase costs of the project, not to mention environmental degradation from the mining of minerals for batteries. This questions of generation and storage capacity are ultimately highly complex. They include nerdy calculations that people do in labs, combined with much bigger questions about how much energy do we really NEEEEEEED?
If a group like Homefulness wants to build low-cost, no-rent housing for the unhoused, and if they want to support residents to live in ways that are low-cost and low-impact to the planet, will the City of Oakland allow them to voluntarily choose to have low-capacity electrical systems? Will the City support them to be creative in reducing and managing their electrical needs, or will the City saddle them with high cost electrical system requirements? I worry about how this will play out, because our experience has taught us that the City tends to put up every barrier imaginable to grassroots efforts at sustainable and affordable living. (See my scary cartoon about how hard it is to simply compost in Oakland.)
This past year, I also had the opportunity to spend months in Kenya, Indonesia, Bolivia, and Ecuador – places where the per capita carbon footprint is anywhere from 1/7th to 1/45th that of people in the US. My stomach still turns when I remember seeing with my own eyes towns in Java that are already inundated by sea level rise, while reflecting that it’s the carbon footprint of people in my country that caused it.
I won’t idealize the way of life many are living in those countries, because there is indeed widespread poverty, but what I can attest to is that many people are indeed living fairly stable and happy lives using FAR less energy than we do in the US. And for those people already suffering loss of homes, water, and food in the climate crisis, they would likely plead with affluent societies to find ways to use less energy. But will the law support us to do that?
As we begin what I hope will become a movement to defect from corporate-controlled grids, and as we seek simpler and more sustainable ways of life, I worry about how laws will stand in our way. I think people in the US should be allowed to explore ways of living with less energy, and that includes embracing some unpredictability and risk. It might mean building off-grid systems with only a little bit of storage, then taking our chances, getting creative, and turning to our neighbors to help meet our needs when our batteries don’t.
But building codes and habitability standards have trended toward eliminating most discomforts and risks. On one hand, this is important to health and safety, especially where profit-seeking developers and landlords would otherwise try to cut corners and put residents at risk. On the other hand, many of our grassroots clients experience the laws as paternalistic and oppressive, especially where they may also want to explore straw bale construction, composting toilets, and other down-to-earth, lower-cost, and more sustainable building approaches. Overall, the ever rising standards and costs of building have taken the work of building out of the hands of the people, and put it into the hands of large developers. I’m feeling the tragedy of this more deeply after traveling abroad, where I witnessed that many (or perhaps even most) people in the world take part in building their own homes, whether it is of wood, mud, dung, reeds, or concrete. Hands-on home building is perhaps a deeply instinctive human behavior, and our legal system has increasingly denied us this basic part of being human.
Similarly, managing energy needs and access have long been hands-on and participatory activities for people all over the world. Think about people who gather wood for heat and cooking, have cows to plow fields, shape landscapes to “pump” water, and otherwise sync their daily rhythms with the sun, tides, and other patterns of nature in order to meet their needs. If you think about it, there is almost no part of our life that is not about managing energy. Living off-grid will have its challenges and unpredictabilities, but there is something very human about working it out, managing and adapting our needs, and learning to live with less. We need our laws to recognize and support this.