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More Good News About State Energy Codes: The US Court of Appeals (9th Circuit) Affirms the Value of Washington State's Forward-Looking, Energy-Efficient Residential Building Code

Kit Kennedy

Posted June 25, 2012 in Solving Global Warming

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Despite the deadlock in our nation’s capital, states are moving forward with a strong clean energy agenda that saves consumers money and protects the environment. Just a few weeks ago, the California Energy Commission adopted a new building energy code, which will save consumers billions of dollars. NRDC played a major role in advocating for this new code.

And just this morning, the US Court of Appeals for the Ninth Circuit upheld Washington State’s innovative energy-efficiency code for new and renovated homes. The decision affirmed an earlier judgment by the federal district court that the state’s 2009 residential building energy code was not preempted by federal law. NRDC and other efficiency allies intervened in this case to uphold states’ rights to adopt flexible, cost-effective building codes that save consumers money. 

Today’s decision is a victory for Washington homeowners. And it’s a victory for all of us. The building code, which calls for a 15 percent reduction in energy consumption for new homes, will reduce pollution and save homeowners hundreds of dollars a year on energy. Moreover, it’s a flexible code that offers builders a host of options for meeting the state standard, allowing them the freedom to choose how best to improve the energy performance of the homes they build. As such, Washington’s building code is a model for states hoping to bring the benefits of high-efficiency homes to their residents. Today’s decision—the first appellate ruling on the issue of federal preemption and state building codes—recognizes the important role that states play in promoting building efficiency. It provides a helpful roadmap for other states that want to adopt strong, progressive building efficiency codes and avoid the potential quagmires of federal preemption.

Here’s the history of this lawsuit.

Though many builders in the state supported the code, the state’s builders association, the Building Industry Association of Washington, challenged it in May 2010. They claimed that in violation of the federal Energy Policy and Conservation Act, the code required builders to use more efficient heating and cooling equipment than the federal law required. But the district court denied that claim. And today, the Court of Appeals agreed. In fact, Washington’s residential building code has no such requirement for high-efficiency HVAC equipment. Though, it makes sense that high-efficiency HVAC systems are among the choices available to cut energy use. Top performing air conditioning systems alone can save homeowners 20-50 percent of the energy they use on cooling.

But high-efficiency HVAC systems are hardly the only option the Washington building code lays out. Improved insulation, smaller-sized homes, renewable energy systems such as solar and geothermal heating and cooling are also among them. The Appeals Court recognized this today, stating, “[t]he legislature explained that it enacted energy conservation mandates to balance ‘flexibility in building design.’” The court decided a lower court decision on this issue, involving a building code adopted by the City of Albuquerque, New Mexico, did not apply.

All of this is good news for Washington homeowners and for the rest of us nationwide. As the Appeals Court noted, “[b]uildings and fixtures tend to have long lifespans, so choices made at the outset during construction are likely to have far-reaching future effects on energy consumption.” Building codes that prioritize efficiency ensure that homeowners have the opportunity to purchase homes that cost them less in the long run. (Energy bills are often homeowners’ second largest housing expense.) In fact, a study of the 2009 IECC building code, on which Washington’s own code is based, finds that while average upfront costs increase slightly—by about $840 total—energy costs drop by $243 annually, meaning “the simple payback for homeowners would occur in 3.45 years.” After that, the savings are gravy. Better yet, amortized over a 30-year, 20-percent-down mortgage, upfront costs would be significantly lower, with the homeowner realizing “net savings within the first year,” the study’s authors found.

The code also increases demand for energy-efficient building technologies, thereby driving innovation and efficiencies of scale, and making the cost for products like insulation and high-performing HVAC equipment lower for everyone, even those of us who live outside the Evergreen state.

Moreover, many of the energy-saving features available as a result of the Washington building code improve homes’ resale value. Homes with solar panels, for instance, “sold for a premium over comparable homes without [solar power] systems,” according to a 2011 study conducted by Lawrence Berkeley National Laboratory.

Nationwide, homes account for about 40 percent of the global warming pollution our country creates and 70 percent of our electricity use. So building codes like Washington’s are important contributions to the fight against pollution and climate change. A fight that states like Washington and California have stepped up to lead in the face of federal inaction. NRDC is proud to have supported Washington in this legal struggle and stands by to support other states that want to move forward with strong building energy codes.

My colleague Noah Long, former colleague Vivian Wang and I represented NRDC in this case. Washington’s Governor Christine Gregoire and Washington Attorney General Rob McKenna should be commended for their great work in adopting and defending this forward-looking building code, which will save state homeowners money and help to protect the environment. Huge credits goes to Washington State Assistant Attorney Generals Ann Essko and Sanda Adix, who led the defense of the building code. Tom Eckman of the Northwest Planning Commission served as Washington State’s expert and did an excellent job explaining the ins and outs of how the code works and why it complies with federal law. Kudos also to the US Department of Energy and the US Department of Justice, who submitted a friend-of-the-court brief on Washington State’s behalf. I also commend our colleagues at EarthJustice—Amanda Goodin and Kristin Boyles—for their important legal work on behalf of Washington state environmental groups, including the Northwest Energy Coalition, Sierra Club and the Washington Environmental Council. 

The Evergreen State’s building code serves the best interests of its residents, saving homeowners money and cutting back on pollution that harms our children’s health. I look forward to many more such state codes to come.

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Comments

John Wm. BucholzJun 25 2012 07:53 PM

Kit,

This is great news!!

Do you have any insight into why the Ninth Circuit Court found that the ruling in the Albuquerque case did not apply?

I was Albuquerque's first Green Building Program Manager and editor of the Albuquerque Energy Conservation. Like Washington's code, ours did not require heating and cooling equipment to be more efficient than federally prescribed minimums, it was based on the 2009 International Energy Conservation Code, and it provided several different paths to compliance. Federal judge, Martha Vasquez, ruled that by requiring buildings to be, overall, more efficient than the 2009 IECC, Albuquerque's code, de facto, required high-efficiency heating and cooling equipment and was, therefore, preempted by federal law.

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Switchboard is the staff blog of the Natural Resources Defense Council, the nation’s most effective environmental group. For more about our work, including in-depth policy documents, action alerts and ways you can contribute, visit NRDC.org.

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