9th Cir: Builders Can Spend More, So Homeowners Can Spend More

Federal law may preempt the State of Arizona from enacting most of the key components of its famously-tough immigration law, but it won't keep the State of Washington from promoting tough state energy standards in new building construction.

The Ninth Circuit Court of Appeals ruled on Monday that the state's new building code, which requires a 15 percent reduction in annual net energy consumption for new construction, was not preempted by the Energy Policy and Conservation Act (EPCA), reports Courthouse News Service. This is the first appellate case to consider EPCA's preemption-exemption provision.

The Building Industry Association of Washington challenged the Washington Building Code (Code) in 2010, arguing that it the EPCA preempted the Code because the Code required builders to use more efficient heating and cooling equipment than the federal law required.

To escape preemption, a state's building code must satisfy seven conditions, one of which provides that a state's building code cannot require a covered product -- energy consuming fixtures such as water heaters and refrigerators -- to be more efficient than the standards established by the Department of Energy (DOE).

The State of Washington's Building Code requires builders to reduce a building's energy use by a certain amount, and provides a number of options from which a builder may choose how to meet that requirement. Some of the options involve the installation of products that have an efficiency that exceeds the federal standards; these options, according to the builders, also happen to be cheaper than the other options. The builders therefore complained that they were "required" to use products that exceed the federal standards.

(Yes, they were whining that the more energy-efficient option was cheaper.)

The Ninth Circuit Court of Appeals found no problem with the builders' dilemma, holding that a builder is not "required" to select an option simply because there is an economic incentive to do so.

Rest assured, builders: You are free to spend more money making new construction less efficient, as long as you meet the overall state and federal building code requirements.

Related Resources:

• Building Industry v. Washington State (Ninth Circuit Court of Appeals)
• More Good News About State Energy Codes (NRDC)
• The Homestar Program Encourages Energy Efficient Plans (FindLaw's Law & Daily Life)