On July 3, 2008, the Air Conditioning, Heating and Refrigeration Institute and other heating/ventilation/air conditioning and water heating equipment trade organizations, contractors and distributors sued the city of Albuquerque in federal district court to stop components of the city's high performance building code from taking effect.
The plaintiffs argued that the code was preempted by the Energy Policy and Conservation Act of 1975 (EPCA), 42 U.S.C. 6201, et seq.,which establishes nationwide standards for the performance of HVAC equipment, and contains a preemption provision that "prohibits state regulation 'concerning' the energy efficiency, energy use or water use of any covered product with limited exceptions."
On October 3, 2008, Chief District Court Judge Martha Vazquez granted plaintiffs' request to enjoin the code from taking effect and concluded, "There is no doubt that Congress intended to preempt state regulation of the energy efficiency of certain building appliances in order to have uniform, express, national energy efficiency standards."
So, where does the city of Albuquerque go from here?
Option 1 -- Litigation
One route is to continue to litigate the case. However, I think this would be a monumental waste of time and taxpayer dollars. The preemption argument was a very good one, and Judge Vazquez made clear her position that she believes the components of the Albuquerque code that mandate energy efficiency standards for HVAC equipment in excess of those contained in EPCA are invalid.
Option 2 -- Sit and Wait
Albuquerque could sit and wait for Obama to act at the federal level to enhance energy efficiency standards and/or enact federal high performance building standards. During the campaign, Obama pledged to do this by establishing a goal of making all new buildings carbon neutral by 2030, with a national goal of improving new building efficiency by 50 percent and existing building efficiency by 25 percent over the next decade.
Option 3 -- Request a Waiver
EPCA contains a waiver provision only for regulations concerning new construction if seven specific requirements are met. So, the portions of the Albuquerque code which concern replacement or renovations would not be eligible for preemption at all. In order for the new construction portion of the code to be eligible for the waiver provision, it would need to be amended to comply with the seven requirements in section 6297(f)(3) of the EPCA.
Option 4 -- Amend the Code to Exclude Energy Efficiency Standards Which Exceed Those in EPCA
Of course, Albuquerque could amend the High Performance Building Code to exclude energy efficiency standards which exceed those established in EPCA. This is probably the wisest course — it would enable Albuquerque to implement the code, and save its noble legislative purpose of reducing greenhouse gas emissions. However, legislators are often "once burned, twice shy," and they have lost face on a national level with their first efforts.
Shari Shapiro, J.D., LEED AP, is an associate with Obermayer Rebmann Maxwell & Hippel LLP in Philadelphia. She heads the company's green building initiative and writes about green building and the law on her blog at http://www.greenbuildinglawblog.com.