Federal Judge Puts Albuquerque's Green Building Code on Hold

Federal Judge Puts Albuquerque's Green Building Code on Hold

Saying its measures infringe on areas preempted by federal law, a U.S. District Court judge has barred enforcement of Albuquerque's green building code pending the outcome of a lawsuit brought by a group of HVAC and water heating equipment trade organizations, contractors and distributors.

Chief District Court Judge Martha Vázquez of New Mexico issued the order on October 3 that grants the plaintiffs' request for a preliminary injunction. The move blocks enforcement of the first and second volumes of the Albuquerque Energy Conservation Code and High Performance Building Ordinance, which were adopted by the City Council in 2007.

The case has been watched closely by the legal community specializing in green building and by other local governments.

As part of Albuquerque's drive to reduce greenhouse gas emissions, its 2007 measures called for a 30 percent increase in energy efficiency for new commercial and residential buildings and those undergoing substantial renovations. Code provisions for single-family homes included use of more insulation, and more efficient heating, cooling and ventilating, water heating and lighting. Commercial and residential structures would also have to undergo thermal bypass inspections.

Proponents hailed the green building code as a key component in the city's campaign to make its communities and structures more eco-friendly by reducing waste, energy use, water consumption and CO2 emissions.

Critics contended that the measures were vague, tough to understand, clashed with federal regulations and would create big problems for people and businesses trying to abide by them.

After extended talks among stakeholders, the date for the code to take effect was delayed from spring to October 1. In July, however, the Air Conditioning, Heating and Refrigeration Institute and 13 other plaintiffs filed suit. They sought a preliminary injunction in the case the following month.

In her 24-page order on Friday, Vázquez wrote, "The city's goals in enacting Albuquerque's Energy Conservation Code and the Albuquerque High Performance Buildings Ordinance are laudable. Unfortunately, the drafters of the code were unaware of the long-standing federal statutes governing the energy efficiency of certain HVAC and water heating products and expressly preempting state regulation of these products when the code was drafted and, as a result, the code, as enacted, infringes on an area preempted by federal law."

"Basically we're on hold until the case itself is resolved," said Albuquerque Environmental Health Director John Soladay.  "The mayor has worked diligently with the council to build one of the greenest cities in the nation. It is unfortunate we're held back in this manner."

Soladay added, however, "Our other green programs and initiatives are still rolling full speed ahead. While this is a temporary setback, it certainly won't dampen our green spirit."

In her conclusion, Vázquez said if there are portions of the city's green code that are not affected by the dispute, the parties can submit a mutually agreed upon order for her consideration to narrow the scope of the preliminary injunction.

"We are evaluating the best route for the city of Albuquerque to take to insure the many progressive provisions of our green building code that were not subject to the litigation can be implemented," Albuquerque Assistant City Attorney John E. DuBois said in a statement provided to GreenerBuildings.

Lead counsel for the plaintiffs did not respond to requests for comment.

However, John Richardson of Gorman Industries, one of the firms that filed suit, told the Albuquerque Journal, "I'm very pleased with the judge's decision. I hope we can get this worked out with the city, so we can save energy and make it a reasonable plan."

According to the U.S. Green Business Council, 103 cities, 34 states and 12 federal departments or agencies have green building policies for government structures; 10 states have eco-friendly construction standards that apply to a range of non-public structures and 69 cities have green building measures on the books for various types of non-government construction.

In view of the range of public policy, GreenerBuildings sought comment from attorney Paul D'Arelli of Greenberg Traurig LLP and asked what impact the Albuquerque case might have on other jurisdictions.

"Part of the difficulty in generalizing about green building ordinances is that with the rapid proliferation of green building ordinances across the country on an ad hoc basis, they vary significantly from jurisdiction to jurisdiction," said D'Arelli, who co-chairs the Green Building & Sustainability Group for Greenberg Traurig, in a statement to GreenerBuildings. "They run the gamut from those that merely incentivize green building practices with expedited permitting, fee reductions, density bonuses and the like, to those that mandate compliance with third-party rating system requirements, and those that go so far as to mandate minimum efficiency standards."

"In light of the wide range of local regulations on the books, whether or not the ruling in the Albuquerque case will foreshadow problems for a particular local government depends on that jurisdiction's regulatory scheme," D'Arelli wrote. "Those that are voluntary in nature, even if the incentives are tied to standards that perhaps could not otherwise be imposed, are certainly less problematic as governments can often get in a bargained-for exchange (e.g., incentives in exchange for green building commitment) what they cannot get by regulatory requirement.

"I think we will definitely see more challenges to mandatory green building regulations over time based on a variety of theories, including preemption, as trade associations and industry groups seek to protect the interests of their members. Often individual builders, developers or companies do not want the negative publicity or expense of single-handedly mounting challenges to perceived overreaching regulations, and they choose to live with the regulation until a trade association or industry group is willing to mount the challenge."

More information about The Air Conditioning, Heating and Refrigeration Institute et al v. City of Albuquerque can be found at Justia.com and a  through the U.S. District Court Case Management/Electronic Case File system.