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Court Grants Summary Judgment to Defendants in BIAW et al. v. Washington State Building Code Council

In a 23-page written decision that was filed earlier today by United States District Judge Robert J. Bryan, the Western District of Washington granted summary judgment in favor of the Washington State Building Code Council and defendants-intervenors NW Energy Coalition, the Sierra Club, Washington Environmental Council and NRDC.  The decision (available for download here) dismisses the claims asserted by the Building Industry Association of Washington and other construction industry plaintiffs that proposed amendments to the Washington State Energy Code are preempted by various federal regulations on the basis that they would require homes to have HVAC, plumbing, or water heating equipment whose efficiency exceeds controlling federal standards.

Specifically, Judge Bryan agreed with the defendants that the Energy Policy and Conservation Act’s “building code exception” applies to the disputed amendments. (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.) Judge Bryan’s decision walks through the four prongs of the building code exception that were in dispute (and under which the defendants alleged the amendments fell), so the full opinion will be of interest to you from that perspective.

I also thought it was interesting that the opinion acknowledges the District of New Mexico’s unpublished opinion in Air Conditioning Heating and Refrigeration Institute v. City of Albuquerque, No. 08-633 MV/RLP, 2008 WL 5586316 (D.N.M. Oct. 3, 2008). There, as you may also recall, the court granted the plaintiffs’ preliminary injunction request on the basis that the disputed code amendments could “not be met with products that meet, but do not exceed, the federal standards.” However, Judge Bryan held that “[p]laintiffs here [in BIAW] have not made any such showing” and observed that “there appear to be substantial differences in the Albuquerque code and Washington’s code.”

Thanks to Cullen Howe for passing along a copy of the decision.

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    [...] catching up on my legal links, my previous post referenced the Gifford LEED lawsuit, but this update might be more significant in terms of regulatory authority: In a 23-page written decision [...]

  2. In First Appellate Decision to Consider EPCA Preemption, Ninth Circuit Upholds Washington State Energy Efficiency Code | Green Real Estate Law Journal - July 19, 2012

    [...] in a 20-page opinion written by Judge Mary M. Schroeder, the Ninth Circuit Court of Appeals upheld the Western District of Washington’s decision in BIAW et al. v. Washington State Building Code Council, a case which we’ve written about [...]

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