State Energy Standards Are Tough, but Legal

     (CN) - Federal law cannot stop Washington state legislators from raising the bar on energy efficiency in new building construction, the 9th Circuit ruled.
     The Building Industry Association of Washington and other construction industry groups suedthe state in 2010, claiming the new rules set higher standards than those set by the federal government under the Energy Policy and Conservation Act, in violation of the supremacy and the commerce clauses of the U.S. Constitution.
     Washington's Building Code Council updated the Energy Code in 2009 to require a 15 percent reduction in annual net energy consumption for new construction. The rules went into effect in 2011.
     In setting nationwide energy efficiency standards for certain residential home appliances, the federal law expressly pre-empts state standards requiring greater efficiency than the federal standards.
     State building codes that promote energy efficiency can qualify for exemption, however, so long as those codes meet certain statutory conditions.
     In challenging the state law, the construction groups claimed that two provisions failed to meet those conditions.
     The first requires builders to meet energy savings numbers by incorporating any of various options that correspond to a certain amount of energy savings points.
     A high-efficiency water heater, for example, is worth 1.5 points, while renewable electric energy is worth 0.5 points.
     The builders said such product requirements exceed federal standards in violation of the act. They also claimed that the federal law lets building codes grant energy efficiency credits on a "one-for-one equivalent energy use or equivalent cost," but Washington's rules vary widely.
     After a federal judge foundthat the updated rules met required conditions, the builders appealed to the 9th Circuit.
     A three-judge panel affirmed Monday, finding that Washington's law does not "require" builders to select a particular product or option. Credits also satisfy the one-for-one equivalent energy-use basis, according to the court.
     "The evidence that is in the record supports the district court's conclusion that the state-assigned credit values satisfy the 'one-for-one equivalent energy use' requirement of subsection (C)," Judge Mary Schroeder wrote for the court. "The District Court admitted the state's expert testimony and documentation because the court found the state's computer models for assigning credit values used sound data and methodology, and that they were reliably applied."
     In fighting the equivalents, the trade group relied solely on a declaration from one member, the judges added.
     "The District Court rejected the declaration after finding that the witness was not qualified as an expert to challenge the state's calculations of equivalent energy use savings produced by using particular products or building methods," Schroeder wrote. "We hold there was no abuse of discretion in disallowing that evidence."
     Some approximation is necessary, and Congress and the District Court recognized that "in some cases, exact equivalency is not possible," the decision states.
     "We therefore hold that the Washington Building Code satisfies the conditions Congress established for enforcement of state and local building codes consistent with federal energy law and we affirm the judgment of the district court in favor of the state," Schroeder concluded.
      http://www.ca9.uscourts.gov/datastore/opinions/2012/06/25/11-35207.pdf