Open the Floodgates: The Era of Green Building Litigation

Until now, there has been little, if any, active litigation related to the rash of green building regulations passed in the past few years.

That changed July 3 when a new era of environmental litigation began. A group of HVAC and water heating equipment trade organizations, contractors and distributors sued the City of Albuquerque in federal district court to stop parts of the city's high performance building code from taking effect.

The plaintiffs argue the Energy Policy and Conservation Act of 1975 and other federal laws preempt the building code's provisions related to energy efficiency of HVAC products.

Set to take effect last month, the regulations adopted in 2007 established energy efficiency requirements for air conditioners, furnaces, heat pumps and water heaters that were more stringent than those at the federal level.

The plaintiffs contend they will be irreparably harmed if the regulations go into effect because:

1. The regulations will prevent them from selling noncompliant HVAC and water heating products in the city
2. The cost of the equipment will increase and cause consumers and businesses to repair these products rather than replace them
3. The same equipment price increases will drive up the cost of new homes, which could impact new home sales
4. The regulations will also cause confusion among manufacturers, distributors and contractors about the standard they must follow.

The outcome of the case, and others that will surely follow in its wake will have far-reaching implications for addressing climate change and other carbon-based environmental damage. Since the federal government has failed to set climate-based standards, local governments have taken the lead and passed many green building regulations over the past year.

About 14 percent of U.S. cities with populations of more than 50,000 have green building programs, according to recent survey of the American Institute of Architects. The number of counties with green building programs has grown by nearly 400 percent since 2003.

Local laws seeking to set higher green standards will be struck down if the federal government has exclusive authority to regulate energy efficiency. At the very least, many of these regulations will be challenged in court and face years of delays in implementation, hampering our ability to effectively address climate change.

Nonetheless, it isn't surprising a case like this was filed since those who stand to lose always challenge new regulatory schemes. The ultimate solution to challenges like those posed in this case may be federal green building standards, but this will prove challenging.

First, it is extremely difficult to design uniform federal regulations that meet the needs of buildings in environments as diverse as Anchorage and Tampa. Second, the federal level has for years lacked the political capital needed to pass sweeping environmental regulations. Ultimately, the compromises necessary to pass a national bill may result in lower standards than might have resulted from a patchwork of local regulations.

The case, AHRI, et al v. City of Albuquerque, was filed in federal district court for the District of New Mexico. The plaintiffs include the Air Conditioning, Heating and Refrigeration Institute (AHRI), two additional industry groups and 11 distributors and contractors of HVAC products and water heaters.

Shari Shapiro is an associate with Obermayer Rebmann Maxwell & Hippel LLP in Philadelphia, Pa., where she heads the company's green building initiative. She maintains the blog Green Building Law.