By: Phil Crone
HBA of Greater Dallas
Green Vine News Column, February, 2010
A U.S. District Court in New Mexico thinks they could. In AHRI v. City of Albuquerque the court granted a preliminary injunction stopping the city from enforcing its green building ordinance and sending them back to the drawing board. Now it may only be a matter of time before this case makes its way to Texas and perhaps across the country.
The reason why is that the city was attempting to require HVAC equipment that is more efficient than the minimum standards set by the Department of Energy. Thus, the plaintiffs (HVAC contractors, suppliers and manufacturers) are alleging that the ordinance is preempted by federal law; specifically, the Energy Policy and Conservation Act of 1992.
Preemption is the doctrine by which a state (or local) law is invalidated because it conflicts with federal law. It stems from the Supremacy Clause of the U.S. Constitution, which declares the laws of the United States as the “supreme Law of the Land.” Courts apply this doctrine by trying to find evidence of Congress’s intent to displace state and local requirements and then determining the scope and size of what they intended the preemption to be.
In the context of green building there are federal requirements for HVAC SEER ratings, water heater efficiency and fixture flow rates among other things. Congress put these in place for their environmental benefits, but also to establish consistency in the marketplace for manufacturers, suppliers, and contractors realizing that many of them operate nationwide and need this uniformity. Therefore, you can see the policy argument against a city that would try to mandate more restrictive requirements.
The court in New Mexico was clearly troubled by the City of Albuquerque’s attempts to mandate 14 SEER equipment above and beyond the 13 SEER federal minimum. Indeed, ordinances like this would be the easiest to defeat under federal preemption doctrine. A local example would be the City of Dallas’s ordinance, which requires faucet and showerhead flow rates that go beyond federal requirements.
Even more interesting, to me at least, is that the court had similar concerns with the Albuquerque ordinance’s attempts to mandate a 30 percent above code energy efficiency achievement while offering of a choice between the LEED for Homes program and the local HBA’s Built Green New Mexico. These requirements are akin to what you see in almost every green building ordinance across the nation.
From working with energy efficiency software and green building programs such as Green Built Texas, many of you know that they offer a variety of routes for compliance. The court recognized this and also that it was conceivable for someone to use equipment that met the federal minimum and still be 30 percent above code and comply with green building programs. However, “conceivable” was not enough to satisfy the court who noted that it would be cost prohibitive for someone to try to comply using the federal minimums; presumably due to the need for increased insulation, more efficient windows, or other design or performance trade-offs.
While this case is very compelling and I am certain we have not heard the last of it, it needs to be noted that it has yet to be adjudicated on the merits. The plaintiffs have only secured a preliminary injunction meaning that the court feels they have a likelihood of success on the merits and it would be more beneficial for the ordinance not to go into effect until the litigation progresses. At this time, the city is revising their ordinance, but this case will likely continue forward with legal experts around the nation now interested.
As the federal government begins to take on a larger role with regards to building codes, specifically energy efficiency, the application of this case may expand as well. While we are unlikely to see a carbon cap and trade bill anytime soon, we could see an energy efficiency bill with federal building code requirements this year. This would expand the field occupied by the federal government from individual products to the entire building code. While such a bill is certainly not a good thing for our industry, if you extend the logic of the court in this case, it may render cities completely unable to impose even more rigorous above-code requirements.
Depending on how it is decided, the case could do this on its own. Time will tell if this is a landmark case that opens the floodgates of green building litigation or if it is just a flash in the pan of an unsettled area of the law.
