Tuesday, July 17, 2012

Ninth Circuit holds Washington's energy efficiency regs not preempted by EPCA

Those interested in green building issues will want to check out a June 25, 2012, Ninth Circuit decision, Building Industry Association of Washington v. Washington State Building Code Council, Case No. 11-35207.  In a case of first impression at the appellate level, the court held that the Energy Policy and Conservation Act of 1975 ("EPCA"), 42 U.S.C. § 6295, et seq., did not preempt the State of Washington's 2009 law requiring that new building construction meet heightened energy conservation goals. 

The case is of particular import because Washington's program utilized a credit-based program, like many other green building codes, that did not dictate particular products but added or subtracted credits on the basis of options chosen by builders with the goal of reducing new construction energy use by 15% based on a 2006 baseline. 

Also of interest, the case distinguished itself from a previous district court decision that held the City of Albuquerque's green building standards were preempted by EPCA.  See Air Conditioning, Heating, and Refrigeration Institute v. City of Albuquerque, 2008 WL 5586316 (D. N.M. 2008).  Unlike in the Albuquerque case, Washington offered methods of compliance that did not require purchase of more energy-efficient appliances.  That made all the difference to the court, which held that Washington's law "does not create any penalty or legal compulsion to use higher efficiency products." 

This promises to be an important precedent for those considering the structure of credit-based energy efficiency regimes.

Stephen R. Miller 


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