You may recall that, late in 2010, the District of New Mexico ruled on a motion for summary judgment filed by the plaintiffs in Air Conditioning Heating and Refrigeration Institute v. City of Albuquerque, Case No. 08-633 MV/RLP (D.N.M. Oct. 3, 2008). In a written decision, Judge Martha Vazquez agreed with 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 – that the prescriptive compliance paths in Volume I of Albuquerque’s Energy Conservation 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) were expressly preempted by applicable federal legislation.
Late last month, Judge Vazquez ruled again in the plaintiffs’ favor on a series of summary judgment motions that were submitted in the aftermath of her 2010 decision (which also denied without prejudice the plaintiffs’ claims that the performance paths contained in each Volume were similarly preempted). The lynchpin of the decision – which essentially disposed of the case in the plaintiffs’ favor – was the court’s determination that the prescriptive compliance path provisions of Volumes I and II of the Code were not severable from the performance-based compliance path provisions. Accordingly, Judge Vazquez agreed with the plaintiffs that all of the provisions of the Code relating to the energy efficiency of the equipment and products covered by the Code were preempted as a matter of law.
But what’s disappointing about this decision (strictly from an academic perspective, of course) was the court’s ability to avoid confronting the plaintiffs’ arguments that the performance-based compliance path provisions in the Code were independently subject to preemption. “In light of the Court’s ruling that the performance-based compliance path provisions are invalid because they are not severable from the prescriptive compliance path provisions, the Court need not reach the issue of whether the performance-based compliance path provisions are independently subject to preemption,” Judge Vazquez wrote.
This language is important because, as you may recall, on pages 9 and 10 of her 2010 opinion, Judge Vazquez discussed 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 Energy Policy and Conservation Act’s building code exception to federal preemption (42 U.S.C § 6297(f)). In denying summary judgment for preemption of these two compliance paths, Judge Vazquez wrote 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.” At the time, many commentators wondered whether the LEED components of a given piece of state or local legislation would ultimately be subject to preemption challenges if the court revisited this line of argument.
In another interesting twist, it was almost exactly one year ago today that the Western District of Washington reached the opposite result in BIAW et al. v. Washington State Building Code Council, granting summary judgment in the Council’s favor and holding that proposed amendments to the Washington State Energy Code that exceeded federal standards were not, in fact, preempted on the basis that the Energy Policy and Conservation Act’s “building code exception” applied to the amendments.
But it’s important to note that the Western District’s logic in upholding those amendments was quite different to the decision in City of Albuquerque. In the former, Judge Robert J. Bryan walked through the four prongs of the building code exception that were in dispute (and under which the Council maintained the amendments fell); after agreeing with the plaintiffs that the prescriptive requirements could not be severed from the performance requirements, it was unnecessary in the latter for the District of New Mexico to perform that analysis.
Regardless of the distinctions between the codes that were at issue (Judge Bryan also acknowledged in his opinion that “there appear to be substantial differences in the Albuquerque code and Washington’s code”), these two different results in two cases that were closely watched in this particular area are a strong reminder of why preemption issues must be considered carefully when crafting green building policy at the state and local levels.
A copy of the District of New Mexico’s most recent decision is available here.