Ninth Circuit Upholds State Building Code Provision under EPCA Preemption Exemption

David Erickson and Mark Anstoetter – July 13, 2012

The Ninth Circuit Court of Appeals has upheld energy-efficiency provisions in Washington state’s building code under a preemption-exemption provision in the Energy Policy and Conservation Act (EPCA). Bldg. Indus. Ass’n of Wash. v. Wash. State Bldg. Code Council, No. 11-35207 (9th Cir. 6/25/12). The panel’s unanimous decision affirms a district court ruling that “Washington had satisfied EPCA’s conditions, and therefore was not preempted.”

The state building code gives builders several options for meeting state energy standards, including whether to use higher-efficiency covered fixtures or cut energy use in other ways. Several builders’ groups challenged the state code, arguing that it expressly required efficiency levels that exceeded federal standards and that it favored certain options over others in assigning efficiency credits. They also argued that the state’s method of gauging efficiency and awarding credits was “inconsistent” and “flawed.” The Sierra Club and Natural Resources Defense Council joined the state building code council in defending the efficiency standards.

The appellate court held that defendants had demonstrated that the building code was based on a widely recognized industry standard and that perfect uniformity was not possible. The court found that negligible differences in the efficiency of one project over another that receives the same credit are not inconsistent enough with federal energy law to justify federal preemption.

via Ninth Circuit upholds state building code provision under EPCA preemption exemption – Lexology.

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