Standards incorporated into a federal system
When state and local authorities incorporate voluntary codes and standards, they must always be mindful of federal preemption.
The tax incentives of the recently passed Cut Inflation Act should help make significant progress toward the Biden administration’s climate goals. But it also seems unlikely that this will be enough, which raises an important question for the future: how to achieve further climate progress?
The answer in the minds of many policymakers and activists lies outside of Washington, DC, in the centers of state and local governments across the United States. Of course, some federal regulatory options still exist, but they are more limited today due to the United States Supreme Court’s decision last June in West Virginia v. Environmental Protection Agency.
A major opportunity for state and local regulation lies in continued efforts to regulate the built environment.
Historically, state and local governments have assumed responsibility for regulating buildings and their construction. And the country’s office buildings, apartment complexes, shopping malls and single-family homes are all major contributors to greenhouse gas emissions. The places where people live and work generate about 40% of all greenhouse gas emissions in the United States and consume about the same proportion of the country’s energy.
Over the past few decades, national and local building codes have made strides toward promoting sustainable building design and encouraging the use of more energy-efficient heating, ventilation, and air conditioning systems. But in the years to come, expect to see increased interest in these standards and to make them even stricter.
As states and localities use their building codes to promote energy efficiency in the years to come, they will likely continue a long-standing practice known as incorporation by reference, i.e. transposing into binding law standards created by non-governmental standards organizations, such as the American Society for Heating, Refrigeration and Air Conditioning (ASHRAE) and the International Code Council (ICC).
Organizations like these bring together professionals who work collaboratively to set detailed standards for all facets of building construction, including design, structural materials, plumbing and electrical systems, fire protection and earthquakes, as well as heating and air conditioning. These standards organizations regularly update their standards to keep pace with technological advancements.
At the time of their creation, these standards are voluntary. But once they are then incorporated by reference into building codes by state and local legislatures and administrative agencies, they create binding obligations that architects and builders must adhere to.
But by incorporating these standards, states and localities can also create legal risks for themselves. One of the main legal risks stems from the supremacy clause of the US Constitution, which states that federal law generally prevails over the laws of the conflicting states.
When incorporating energy efficiency standards for appliances and equipment used in buildings, state and local governments must manage the risk of federal preemption with special care. Federal laws and regulations passed by the US Department of Energy already govern the energy efficiency of some of the most common appliances and equipment used in commercial and residential buildings. And federal law establishes specific criteria that states must follow to prevent their efforts to improve building energy efficiency from being precluded by federal law.
As detailed later in a collection of case study documents on the Penn Program Resource website on Voluntary Codes and Standards Regulation, failure to be careful when incorporating voluntary building standards and the development of energy efficiency codes can lead to litigation, delays and ultimately the blocking of court orders. national and local codes to take effect.
The city of Albuquerque, New Mexico learned this lesson the hard way. In 2005, Democrat Martin Chávez won what was then an unprecedented second consecutive term as mayor of Albuquerque, hoping to make Albuquerque the “greenest city” in the United States. Building on input from various industry leaders and city officials, Albuquerque adopted a progressive green building code that incorporated into city law some leading standards developed by ASHRAE and ICC.
After the city council approved the new building code, three national trade associations and a dozen local builders and suppliers sued the city, arguing that federal law prevailed over the city code. The New Mexico Federal District Court ruled that the parts of the code that incorporated ASHRAE and ICC standards prescribed the use of equipment that exceeded federal standards — and various other parts of the code could not spare the code from the conflict. created by its prescriptive provisions. The court issued a preliminary injunction prohibiting the implementation of the code. Two years later, in a separate decision, it granted summary judgment to the industry plaintiffs.
If Albuquerque had looked more carefully at a possible federal preemption challenge, it might have seen its code green provisions upheld. In fact, Washington State managed to add tough new energy efficiency standards to its building code a few years after Albuquerque’s attempt. Facing litigation by some of the same types of industry plaintiffs who had sued Albuquerque, Washington State prevailed, both at the trial court and on appeal.
The contrasting results of these two case studies, which are featured on the Penn Program on Regulation website, offer an important lesson for policymakers and activists seeking to make states and localities the center of climate policy in the years to come. This lesson is important even for issues outside of green building codes. In the coming years, federal preemptive arguments are likely to become more prevalent on issues as varied as abortion, drones and fintech.
To move forward wisely and effectively on these issues, as well as to respond to the imperatives created by climate change, States will need to tread the path forward with due caution. Although the Supreme Court’s decision in West Virginia may have reduced federal regulatory authority to some extent, federal law will remain relevant to those seeking to pursue policy objectives through subnational regulation.
Neharika Goyal is a student at the Carey Law School of the University of Pennsylvania.
This essay is part of a six-part series called Codes-and-Standards.org.