On the same day that the United States Supreme Court issued its decision covered by every single newspaper — including, for instance, The Washington Post and New York Times — on whether Arizona’s immigration laws are preempted by federal immigration policy, the Ninth Circuit issued its opinion on another preemption question that has received only this limited press coverage, at least to date. In Building Industry Association of Washington v. Washington State Building Code Council, the Ninth Circuit agreed with an earlier trial court ruling that energy conservation goals under Washington’s Building Code were not barred by the express preemption provision in the Energy Policy and Conservation Act (EPCA). Even if not generally newsworthy, this decision is worthy of note to those in the construction industry.
Under EPCA, the federal government established energy efficiency standards for certain products, including HVAC systems and water heaters. The Ninth Circuit ruled that WAC 51-11-0900 (Chapter 9), which allows a builder to get “credit” against required energy efficiency standards by installing products that are more efficient than the federal product standards, does not “require” that those products be used even though that choice might be the least expensive one for meeting the energy standards. As such, the Court ruled, the Washington rule is not preempted by the federal standard.
The Court explained, “allowing less expensive, more efficient options does not require builders to use more efficient products within the meaning of the federal statute.” Like the trial court, the Ninth Circuit ruled that a somewhat similar ordinance of Albuquerque, New Mexico was actually different because it essentially mandated use of the more efficient products by imposing direct penalties if those products were not used. The Court concluded, “Here, by contrast, the Washington Building Code itself imposes no additional costs on builders.”
The Court also rejected the BIAW’s alternative challenge to Chapter 9 based on the “one-for-one” rule in EPCA. In short, BIAW contended that Chapter 9 was preempted because it failed to assign equal credit to different options that provided equivalent energy savings. The Ninth Circuit ruled that EPCA, to avoid preemption, does not require that alternatives provide identical results. It explained, “In requiring that credits be awarded on a one-for-one equivalent energy use basis, Congress intended not mathematical perfection, but rather preventing the building code from discriminating between products and building methods. Chapter 9 of the 2009 Washington Building Code achieves this objective by awarding credits for average equivalent energy use for each option in different use situations.”