If you attended USGBC’s first-ever Legal Forum last Thursday during Greenbuild 2010 in Chicago, you heard me mention that the Washington State Building Code Council, along with defendant-intervenors NW Energy Coalition, the Sierra Club, Washington Environmental Council and NRDC, has moved for summary judgment in the federal action filed against it by the Building Industry Association of Washington. As you will recall, the suit was filed on May 25, 2010 in United States District Court for the Western District of Washington and alleges that certain amendments to the Washington State Energy Code that were slated to take effect on July 1 are preempted by various federal regulations on the basis that they require homes to have HVAC, plumbing, or water heating equipment whose efficiency exceeds controlling federal standards. A copy of the motion papers are available for download here.
The papers are an important read if you are interested in the mechanics of how the Energy Policy and Conservation Act’s “building code exception” applies to local-level residential building codes. As you will recall, 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 residential 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. What’s most interesting about the motion papers is that the BIAW defendants walk the disputed Washington energy code amendments through each of the prongs of the 7-part building code exception, concluding that the code satsfies its requirements.
The defendants also note on page 41 of their summary judgment motion that there is “only one other federal court opinion that directly addresses the question of federal preemption of a building energy code.” That opinion, of course, is Judge Vazquez’ in AHRI et al. v. City of Albuquerque, which we wrote about here at GRELJ earlier this fall. However, the BIAW defendants do note in their motion that Judge Vazquez’ opinion – which granted summary judgment to the AHRI plaintiffs on the prescriptive compliance paths, and not the performance-based paths – will thus not be all that helpful to the Western District as it considers this motion. “[N]othing in AHRI undermines the conclusion that [the disputed amendments to the Washington code fall] within EPCA’s express exemption from preemption,” they write.
My thanks to Cullen Howe for passing along a copy of the motion papers in BIAW; we’ll be keeping a close eye on both this motion and what’s next in AHRI over the coming weeks here at GRELJ.