11/14/2008 11:01:40 AM EST
Green Federalism--The Rising Conflict Between Local and Federal Regulation of High Performance Buildings
On July 3, 2008, the Air Conditioning, Heating and Refrigeration Institute and other heating/ventilation/air conditioning and water heating equipment trade organizations, contractors and distributors sued the City of Albuquerque in federal district court to stop components of the city''s high performance building code from taking effect. The plaintiffs argued that the Energy Policy and Conservation Act of 1975 ("EPCA"), 42 U.S.C. 6201, et seq., preempted the building code''s provisions related to energy efficiency of HVAC products. The EPCA established nationwide standards for the performance of HVAC equipment, and contain a preemption provision that "prohibits state regulation 'concerning' the energy efficiency, energy use or water use of any covered product with limited exceptions." Adopted in 2007, and set to take effect in June of 2008, the Albuquereque Energy Conservation Code ("Code") was part of the City's attempt to significantly reduce carbon dioxide and green house gas emissions. The Code consisted of two Volumes. Volume I applied to new construction, addition or renovation of commercial and multi-family residential buildings. Volume II applied to new construction, addition or renovation of one- and two-family detached dwellings and townhouses. Both volumes provided a menu of options for reduction of energy use. In both volumes, at least one of the options required energy efficiency requirements for air conditioners, furnaces, heat pumps and water heaters that were more stringent than those required by EPCA as amended. On October 3, 2008, Chief District Court Judge Martha Vazquez not only granted the preliminary injunction, but laid out her opinion that the Albquerque Code was indeed preempted. Judge Vazquez concluded "There is no doubt that Congress intended to preempt state regulation of the energy efficiency of certain building appliances in order to have uniform, express, national energy efficiency standards." The preemption conflict which played itself out in AHRI v. City of Albuquerque is likely to be on the beginning of green federalism issues. According to an American Institute of Architects' study, state/local regulation of green building has exploded in the past five years. Since 2003 the number of counties with green building programs has risen from eight to thirty-nine for an increase of 387.5%. Simultaneously, the federal government has enacted tax incentives to encourage green building practices, regulated the energy efficiency of HVAC equipment, and encouraged green building through federal building programs. Barack Obama has pledged to increase federal regulation of high performance buildings by establishing a goal of making all new buildings carbon neutral by 2030, with a national goal of improving new building efficiency by 50 percent and existing building efficiency by 25 percent over the next decade. [http://www.abanet.org/environ/pubs/nre/fall08/obama_mccain.html] Municipal attorneys need to be wary of preemption issues in drafting high performance building codes. Federal legislators need to consider the value of state and local regulation of high performance buildings. After all, building and land use regulation has historically been the pervue of local governments. To best serve their clients'' needs, all attorneys need to consider both local and federal green regulations and incentives, and suss out any potential conflicts between them.