Late last week, United States District Court Judge Martha Vazquez ruled on a motion for summary judgment filed by the plaintiffs – three trade associations representing manufacturers, distributors, and installers of HVAC products and water heaters, including AHRI, and twelve local distributors who sell and install HVAC products – back in September of 2009. As you will recall, in October of 2008 Judge Vazquez had granted the plaintiffs’ application for a preliminary injunction against the enforcement of Albuquerque’s Energy Conservation Code on the basis that certain portions of the Code are preempted by federal law. A copy of Judge Vazquez’s decision on the summary judgment motion is available here for your download and review.
The decision grants the plaintiffs summary judgment on their claims that the prescriptive compliance paths in Volume I of the Code (which applies to commercial and multi-family buildings) and Volume II of the Code (which applies to one- and two-family detached dwellings and townhouses) are expressly preempted by applicable federal legislation. In her opinion, Judge Vazquez notes that “[t]he plain language of the preemption statute makes clear that Congress intended the preemption to be broad in scope” and that “Congress recognized that the National Appliance Energy Conservation Act ‘preempts state law under most circumstances.’”
However, Judge Vazquez denied (without prejudice) the plaintiffs’ claims that the performance paths contained in each Volume are also preempted. Perhaps most interestingly, on pages 9 and 10 of her opinion, she discusses the plaintiffs’ claims that the LEED Silver and Build Green New Mexico compliance paths in Volume II of the Code should not qualify for the building code exception to preemption. (The building code exception is set forth in 42 U.S.C § 6297(f) and allows state and local governments to set energy efficiency targets for new construction which can be reached with equipment or products whose efficiencies exceed federal standards, provided the enabling legislation also includes other means to achieve the targets with products that do not exceed the federal standards. The building code exception’s preemption analysis is performed under what some have described as a “convoluted” 7-part test that is outlined in 42 U.S.C. § 6297(f)(3)). In denying summary judgment for preemption of these two compliance paths, Judge Vazquez writes that “[t]he preemption statute applies to ‘products.’ Plaintiffs state that LEED Silver and Build Green New Mexico . . . are regulations concerning energy efficiency or energy use of covered products but do not point to the relevant provisions of LEED Silver or Build Green New Mexico.”
We will have much more to say about both this opinion and its implication for the Building Industry Association of Washington et al. v. Washington State Building Code Council litigation, which remains pending in United States District Court for the Western District of Washington, here at GRELJ in the coming weeks; in the meantime, please feel free to chime in with your reactions to the opinion (only 13 pages and a relatively quick read) in the comments below.
Many thanks to my friend and colleague Cullen Howe, who publishes the recently-launched Green Building Law Update Service blog through Columbia Law School’s Center for Climate Change Law, for forwarding me a copy of the decision.