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By J. Cullen Howe, Environmental Law Specialist, Arnold & Porter LLP
On February 7, 2011, a federal district court in Washington State held in Bldg. Indus. Ass'n of Wash. v. Wash. State Bldg. Code Council that the Washington State Building Code Council did not violate federal law when it established energy efficiency standards for new residential construction that are more strict than those required under federal statutes.
In 2006, the Washington Building Code Council adopted a building energy code for new construction in the state which did not exceed federal requirements. However, in 2009, the Council revised the building energy code to add a 15% annual net energy consumption reduction requirement to be achieved through a point system whereby credits can be earned by making certain improvements to the efficiency of a building’s shell, heating equipment, and other energy consuming devices. The revised standard is stricter than what is required under the Energy Policy and Conservation Act (EPCA). The revised standards were to take effect July 1, 2010, but were delayed until January 1, 2011.
EPCA sets federal energy efficiency guidelines for residential appliances used in buildings, including heating, ventilation and air conditioning equipment. EPCA also requires that states adopt and periodically revise their building energy codes to comply with the International Energy Conservation Code (IECC). While EPCA prohibits imposing state regulations that are stricter than those set by the IECC, it does allow for exceptions for state energy codes as long as they meet seven enumerated requirements.
The Building Industry Association of Washington (BIAW) sued the Council in federal court, seeking an injunction and a declaration that EPCA preempted the revised code. The court rejected these arguments, holding that the revised code met EPCA’s building code exception, namely because it provides other means for compliance than solely using products that are more energy efficient than federal standards.
The decision referred to a case in New Mexico entitled The Air Conditioning, Heating and Refrigeration Institute v. City of Albuquerque (which this blog previously discussed here) that struck down portions of Albuquerque’s energy code as preempted by EPCA. In that case, the city unsuccessfully argued that prescriptive portions of its revised code (i.e. those portions that set specific standards for certain equipment used in buildings) were not preempted because the code allowed builders to choose other options for compliance. The court disagreed, at least in part, and found that the prescriptive portions of the code unambiguously set standards in excess of those required under federal law and thus were preempted. However, it found that the plaintiffs did not make a sufficient showing that the non-prescriptive portions of the code were preempted under federal law.
Reprinted with permission from Green Building Law Update Service.
Lexis.com subscribers can access the Lexis enhanced versions of Bldg. Indus. Ass'n of Wash. v. Wash. State Bldg. Code Council, 2011 U.S. Dist. LEXIS 12316 (W.D. Wash. Feb. 7, 2011) and Air Conditioning, Heating & Refrigeration Inst. v. City of Albuquerque, 2008 U.S. Dist. LEXIS 106706 (D.N.M. Oct. 3, 2008), with core terms, case and statute links, and Shepard’s.
The Green Building Law Update Service is a 2011 LexisNexis Top 50 Blogs for Environmental Law & Climate Change nominee.
J. Cullen Howe is an environmental law specialist at Arnold & Porter LLP. Much of Cullen's work focuses on climate change, where he attempts to educate lawyers and the public at large on the enormous cooperation necessary to adequately address this problem. In addition to his work on climate change, Cullen is the managing editor of Environmental Law in New York, edits the Environmental Law Practice Guide, Brownfields Law and Practice, the Environmental Impact Review in New York, and has drafted chapters in the Environmental Law Practice Guide on climate change and green building. Mr. Howe is a graduate of Vermont Law School, where he was the managing editor of the Vermont Law Review, and a graduate of DePauw University, where he was a member of Phi Beta Kappa.
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