Posted by: Patricia Salkin | February 22, 2011

Federal District Court Denies Summary Judgment Motion on Washington State Energy Code Preemption Provision

A federal district court has denied a summary judgment motion by the Building Industry Association of Washington against the State Building Code Council involving a preemption challenge to the Code.  Specifically, Building Industry asserted that certain sections of the new Building Code were preempted by the federal Energy Policy and Conservation Act, Pub. Law No. 94-163, 89 Stat. 871 (1975) as amended by the National Appliance Energy Conservation Act of 1987, Public Law No. 100-12, and the Energy Policy Act of 1992, Public Law No. 102-486, 42 U.S.C. sec. 6297 which provide for energy efficiency standards for residential appliances.  The Court noted, that the 1992 amendments were enacted, “to reduce the Nation’s consumption of energy and to reduce the regulatory and economic burdens on the appliance manufacturing industry through the establishment of national energy conservation standards for major residential appliances.”

Washington State had recently enacted an amendment to the State Building Code, finding among other things, that:

“…energy efficiency is the cheapest, quickest, and cleanest way to meet rising energy needs, confront climate change, and boost [Washington’s] economy.  More than thirty percent of Washington’s greenhouse gas emissions come from energy use in buildings.  Making homes, businesses, and public institutions more energy efficient will save money, create good local jobs, enhance energy security, reduce pollution that causes global warming, and speed economic recovery while reducing the need to invest in costly new generation.  Washington can spur its economy and assert its regional and national clean energy leadership by putting efficiency first. Washington can accomplish this by: Promoting super efficient, low-energy use building codes; requiring disclosure of buildings’ energy use to prospective buyers; making public buildings models of energy efficiency; financing energy saving upgrades to existing buildings; and reducing utility bills for low-income households.”

After explaining provisions of the 2006 State Building Code and 2009 amendments thereto that require, among other things, a 15% reduction in annual net energy consumption for new construction, and the “pathways”  that could be selected to accomplish the requirement, the Court examined the preemption clause language of the federal Energy Policy and Conservation Act.  The clause provides, in part, that “a regulation or other requirement contained in a State or local building code for new construction concerning the energy efficiency or energy use of such covered product is not superceded” if the code complies with seven requirements.  The Plaintiffs alleged that four of the seven requirements were not met.  The Court then addressed each of these four items, and concluded that the Building Industry failed to meet the required showings for each of these items, and therefore they failed to carry their burden for summary judgment.  

Building Industry Association of Washington v. Washington State Building Code Council, 2011 WL 485895 (W.D. WA 2/7/2011).

The opinion can be accessed at:

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