Posted by: Patricia Salkin | January 12, 2009

District Court in New Mexico Halts Implementation of City Green Code

In October 2008, a federal district court judge issued a preliminary injunction barring enforcement of the City of Albuquerque’s green building code enacted in 2007 [the Albuquerque Energy Conservation Code and High Performance Building Ordinance] pending the outcome of a lawsuit brought by HVAC and water heating equipment trade organizations, contractors and distributors on the grounds that it was preempted by federal law.  Among other things, the Code called for a thirty percent in energy efficiency for new commercial and residential buildings as well as those undergoing substantial renovations [To achieve this goal, the Code provides that single-family homes should have more insulation, more efficient heating, cooling and ventilating, water heating and lighting; and commercial and residential structures would also have to undergo thermal bypass inspections]. The Judge wrote that, “The city’s goals [in enacting the disputed code] 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.” The Judge noted, however, that if there are other provisions of the green code that are not affected by the dispute, parties could submit an order for consideration to narrow the scope of the preliminary injunction.

                                        

AHRI v. City of Albuquerque, 2008 U.S. Dist. LEXIS 42135 (D.N.M. 10/3/2008).

 

For a discussion of green development and federalism issues raised by this case click here.

 

For an article on green development and local comprehensive plans and zoning ordinances click here.


Responses

  1. This is a great blog. The Center for Progressive Reform, a think-tank of legal scholars, is concerned that federal climate change legislation will preempt state and local efforts to combat climate change. Our white paper on the issue is located at http://www.progressivereform.org/articles/federalismClimateChange.pdf

    I look forward to reading your article on green development and local ordinances. Do you think federal climate change legislation may include broader preemption of local and state land use laws?

  2. Thanks Shana for the link to the Center’s research paper. I look forward to reading it. This is an issue obviously open to debate. While at heart I am a home rule advocate, I also believe that in some instances we can’t get passed NIMBY. I am currently researching/writing a paper discussing the appropriate level of government to deal with the siting of wind turbines. Many local residents are opposed to the turbines, yet wind resources can only be accessed in specific areas. If this is a clean green/renewable energy source, should the federal and/or state governments have a role in siting given the climate change crisis? The federal government does not now have a position. Some states explicitly allow local governments to deal with this, other states have preempted the field with state siting boards having jurisdiction over wind. Yet some states have not squarely addressed this conflict.

    I too would be curious as to what others think is most appropiate.

  3. Thank you so much for your response — I look forward to reading your paper, too. I’m not sure if I can answer your question either, but I definitely plan on talking to some of the member scholars at CPR about it, because siting may well be an area where preemption makes sense. Certainly, that seems to be the direction we have been moving in the energy industry generally and the siting of power plants.

  4. After reading the post and the response/paper submitted by Shana Jones, it truly seems that complete preemption by the Federal government in the field of green building would upset the Federalist system. Some level of Federal government action would be effective in making sure that there is at least a minimum level of enviromental protection and would therefore avoid a race to the bottom. However, complete preemption in the field of green building codes would prevent states from acting as labatories for experiment and thereby prevent states from designing effective policies for their particular localities. The United States is a diverse area and a single policy would be both ineffective and inefficient. The American Recovery and Reinvestment Act of 2009 allocated $25 billion dollars for green building and the most practical part of the ARRA is that it has included $3.1 billion dollars for EERE’s State Energy Program. Under this part of the act, the DOE awards funds to states in order to promote innovative energy efficieny programs. This part of the act is representative of how the Federal government should adopt a policy of being involved in the enhancement of green building in the United States, but allow states to design effective policy in their respective areas.


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