Are Challenges to Green Building Codes on the Rise?

Last night I had dinner with a long-time reader of Green Building Law Update.  I was frank with him, and I will be frank with you.  I will be doing two things this year with the blog: 

1.  I am going to stop talking about LEEDigation as much.
2.  I am going to talk more about the green building codes, and the challenges to those codes that are occurring throughout the country.

A trend seems to be developing across the country in the green building world.  Traditional builders and manufacturers are fighting against green building codes and programs.  You can expect an increase in these types of challenges in 2011. 

One of the first reported legal challenges to a green building code occurred in New Mexico with the case Air Conditioning, Heating, and Refrigeration Institute (ACHRI) v. City of Albuquerque.  The case focused on the Albuquerque Energy Conservation Code passed by the city on September 17, 2007.  The goal of the code essentially was to create greater energy efficiency in buildings and products.  As often happens with new regulations, numerous parties were unhappy with the Code.  Three trade associations representing HVAC product manufacturers, distributors and installers challenged the Code, and the case was ultimately decided on September 30, 2010 by Judge Martha Vazquez of the U.S. District Court for the District of New Mexico. 

While the legal challenge focused on many portions of the Code, I am focusing on Volume I, which included requirements for commercial buildings and multi-family buildings. 

In order to comply with Volume I of the code, a building had to satisfy one of three paths:

  1. The building must achieve LEED certification;
  2. The proposed building must be 30 percent more energy efficient than a baseline building; or
  3. The Heating, Ventilation, and Air Conditioning (HVAC) system and equipment must comply with minimum energy efficiency standards.

There is a key difference between the first two compliance paths and the last.  The first two paths can be described as performance-based because the building must perform in a particular manner.  The last path is a prescriptive compliance path, which means it focuses on the products that go into a building. 

Judge Vazquez relied on the legal theory of federal preemption to strike down the code's prescriptive compliance path:

"The Court concludes that the prescriptive provisions of Volume I requiring the use of heating, ventilation, or air conditioning products or water heaters with energy efficiency standards more stringent than federal standards are regulations that concern the energy efficiency of covered products and, therefore, are preempted as a matter of law."

Judge Vazquez pointed to the National Appliance Energy Conservation Act, which expressly preempted product energy efficiency standards: 

"A standard prescribed or established under section 6313(a) of this title shall, beginning on the effective date of such standard, supersede any State or local regulation concerning the energy efficiency or energy use of a product for which a standard is prescribed or established pursuant to such section."

Judge Vazquez went on to uphold performance path one and two because the plaintiffs presented a "cursory argument" and "very few material facts" in support. 

The question remains whether a court could find federal preemption of a LEED-based code if properly argued by a plaintiff. 

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Comments (3) Read through and enter the discussion with the form at the end
Alan Whitson - January 4, 2011 11:36 AM

You are on target.

LEED EBOM is the only LEED product that could be called "performance" based. The other LEED products are clearly "prescriptive" in nature.

Since most codes refer to LEED NC and currently there is no requirement for a LEED NC project to recertify under LEED EBOM - subject to change of course. It's logical that any well presented case could be successful.

The really interesting question is how the USGBC will respond. When LEED is required by any code, it is trumpeted by their PR machine. Yet, when pushed on the topic the USGBC will say LEED was never designed to be a part of any code.

Then again, asking for consistency and common sense in codes and regulations is an ongoing uphill battle in the rain.

Bob Kobet - January 4, 2011 3:30 PM

I would like to gently disagree with Alan as I believe he has reversed the use of "performance" and "prescriptive" in his comment. The energy performance and building systems selection and sizing issues addressed in the Energy and Atmosphere category of LEED NC are generally accepted as performance based, especially if the LEED team is using whole building computer modeling via Option One in EA Credit One.

The other options are somewhat more prescriptive but not in any dictatorial or hierarchal way. There is still room to balance envelope, systems and controls, but the building type and size limits the application of the more prescriptive Energy Performance Documents.

My interest is in the justification for overturning Volume One Option Three of the Albuquerque Energy Conservation Code. I am not familiar with the entire text of the argument and do not pretend to be well informed on the case. But, if it is based on the HVAC / Mechanical Engineering industry interest in maintaining market share for inexpensive, energy inefficient equipment the problem is clearly not the code.

I hope we are past specifying energy efficient HVAC equipment for buildings that should not be built. I also hope we are not succumbing
to industry pressure to install energy inefficient equipment based on first cost or other arguments with equally weak justification. In my eleven years as a LEED consultant I have been on several projects where smaller, right sized energy efficient equipment was installed based on optimizing all aspects of the project through integrated design. The projects were on time and on budget. It is a front end loaded intellectual process that is becoming industry practice.

It troubles me that the ACHRI would lobby for anything less than good, cost effective design and the installation of HVAC equipment that is not going to tax society and the environment for the life of the building. I would rather champion intelligent design, short payback periods for more efficient HVAC equipment (although I have heard arguments that in some cases the payback is immediate) and the environmental and financial benefits that accrue over time.

I am also very interested in how the Judge's order will play out over time. The Federal Government already supports LEED, from the GSA, through our Federal Agencies to the Military and beyond. I did a LEED workshop for the Pentagon where energy efficiency was touted as a matter of national security. While one can argue the issue of government involvement in establishing codes, that precedent has been set. I believe our long term energy security interests must be based on a broad spectrum of strategies. Installing cheap, energy inefficient equipment should not one of them.

The disconnect between the basis for the Judge's ruling, the interest of the lobbyists and the evolution of LEED and the International Green Construction Code seems based on the lag between those promulgating LEED and green building / energy conservation codes and the need to coordinate and update their efforts.

Most of my colleagues believe there will always be a role for LEED but our interest in energy, material and resource efficient buildings is best done through codes. The partnership between ICC, AIA, ASHRAE, the USGBC and others engaged in implementing the International Green Construction Code is intended in part to have the IGCC and LEED resonate with one another. Municipalities have already begun to adopt Version 2 of the IGCC based on ASHRAE 189. It is also based on a commitment to have the IGCC be relevant and applicable to local conditions. IGCC 2012 will be formatted to enable municipalities to choose what degree of energy performance, water conservation, etc., in buildings they wish to enforce.

The IGCC and LEED will continue to evolve and become more refined.
More Federal projects will come online using one or the other. If Municipal law continues to embrace both, it may only be a matter of time before the Judge's argument no longer holds or Volume One, Option Three of the Albuquerque Energy Conservation Code is no longer relevant

Mari Gilligan - January 21, 2011 2:01 PM

I would be interested in understanding the legal difficulties of the code requiring the applicant obtain a certification from a private organization such as when LEED certification is required. While LEED certification is one option in some circumstances it could be the only feasible solution.

A concern is the appropriateness of creating or maintaining a legal monopoly.

If the organization issuing the certification can unilaterally revise the certification criteria or allow deviations has the agency adopting the code improprely delegated regulatory functions to a private enterprise? This would especially be a concern if the adoption ordinance did not reference a specific version of the LEED criteria.

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