Last week, we looked at Air Conditioning, Heating, and Refrigeration Institute (ACHRI) v. City of Albuquerque, a case in which a federal court struck down portions of the Albuquerque Energy Conservation Code based on the doctrine of federal preemption.  In a construction code context, federal preemption often means that products and appliances are regulated at the federal level but states regulate building codes.  The decision in the Albuquerque case was not all that surprising as the code clearly went beyond federal efficiency standards for heating, ventilation, and air conditioning (HVAC) products. 

But a more recent case involving similar claims of federal preemption is not so clear. 

On May 25, 2010, the Building Industry Association of Washington (BIAW) and nine HVAC manufacturers and installers, filed a lawsuit in federal court against the Washington State Building Code Council.  The lawsuit alleges that one portion of a new Washington State Energy Code related to single-family residential energy efficiency is preempted by federal law.  The plaintiffs have asked for an injunction against the code. 

Changes to the State Code were passed on November 20, 2009 and the new code went into effect July 1, 2010.  Plaintiffs are particularly concerned with residential energy efficiency requirements under Chapter 9. I would suggest you download a copy of the complaint (PDF) and take a look at the chapter, which is attached as an exhibit starting on page 16.  Here is sample of the table from Chapter 9: 

In order to comply with Chapter 9, a home must achieve one credit from the entirety of Table 9-1.  On its face, the table appears to provide a variety of options for compliance, which would not infringe on federal efficiency requirements.  For example, option 3b in the table requires an efficient building envelope, and does not require specific efficiency for any product. 

According to the plaintiffs, though, the effect of Table 9-1 is that in order to comply, a number of options must be combined with the result that the code mandates product energy efficiency: 

"[T]he menu of ‘options’ in Table 9.1 is not extensive enough and in effect forces homebuilders to install high efficiency HVAC, water heating and plumbing equipment with performance standards in excess of those set by federal law."

Essentially, the plaintiffs are arguing that all compliance paths under table 9 require the installation of HVAC equipment that is more energy efficient than federal law. 

What do you of the builders associations’ challenges of various state energy codes?