Wednesday, June 27, 2012

Building Industry Association of WA v. WA State Bldg Code

Jun 25: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-35207. Appeal from the United States District Court for the Western District of Washington. The Appeals Court explains that the Energy Policy and Conservation Act of 1975 (EPCA), establishes nationwide energy efficiency standards for certain residential home appliances, and expressly preempts state standards requiring greater efficiency than the Federal standards. It nonetheless exempts from preemption state building codes promoting energy efficiency, so long as those codes meet certain statutory conditions. This case is a challenge to the State of Washington's Building Code brought by the Building Industry Association of Washington (BIAW), along with individual builders and contractors.
   The impetus for the challenge is the State's 2009 requirement that new building construction meet heightened energy conservation goals. This is the first case at the appellate level to consider EPCA's preemption-exemption provision. Plaintiffs-
Appellants (Plaintiffs) argue that the Building Code does not satisfy EPCA's conditions for exemption. The district court, however, held that Washington had satisfied EPCA's conditions, and therefore was not preempted. The Appeals Court affirmed the district court decision and explains that to escape preemption, a state's building code must satisfy the seven conditions codified in 42 U.S.C. § 6297(f)(3). The two at issue here are § 6297(f)(3)(B) and (C).
    Under subsection (B), a state's building code cannot require a covered product -- energy consuming fixtures such as water heaters and refrigerators -- to be more efficient than the standards established by the United States Department of Energy
(DOE"). The State of Washington's Building Code requires builders to reduce a building's energy use by a certain amount, and provides a number of options from which a builder may choose how to meet that requirement. Some of the options involve the installation of products that have an efficiency that exceeds the federal standards. These options, according to the builders, also happen to be cheaper than the other options. The builders contend that they are therefore being "required" to use products that exceed the Federal standards, in violation of subsection (B).
    On the subsection (B) issue the Appeals Court rules, "We hold that a builder is not 'required' to select an option, within the meaning of subsection (B), simply because there is an economic incentive to do so. Section 6297(f)(3)(B) is violated when the code requires a builder, as a matter of law, to select a particular product or option. The Supreme Court has recognized this to be what a requirement entails. See Bates v. Dow Agrosciences LLC, 544 U.S. 431, 445 (2005) (rejecting a preemption challenge, and holding that the term 'requirement' in a different statute means 'a rule of law that must be obeyed'). Plaintiffs in this case are thus not 'required' to choose the less expensive, more efficient option."
    Plaintiffs' also challenge under § 6297(f)(3)(C) of the Federal law which the Appeals Court said "is more factual in nature." Subsection (C) provides that a building code must grant credits on the basis of how much each option reduces energy use or cost, without favoring particular products or methods. Plaintiffs argue that the Building Code here does not satisfy this condition, because they contend its credits are not granted on a one-for-one equivalent energy use basis. The Appeals Court says their argument relies solely upon a BIAW member's declaration. The district court rejected the declaration after finding that the witness was not qualified as an expert to challenge the State's calculations of equivalent energy use savings produced by using particular products or building methods.
    The Appeals Court rules, "We hold there was no abuse of discretion in disallowing that evidence. The evidence that is in the record supports the district court's conclusion that the state-assigned credit values satisfy the 'one-for-one equivalent energy use' requirement of subsection (C). . . We therefore hold that the Washington Building Code satisfies the conditions Congress established for enforcement of state and local building codes consistent with federal energy law and we affirm the judgment of the district court in favor of the State."
    Access the complete opinion (click here). [#Energy/Efficiency, #CA9]
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