9th Circuit Hears Fight Over Energy Standards | Courthouse News Service
Wednesday, November 29, 2023
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9th Circuit Hears Fight Over Energy Standards

(CN) - The Washington construction industry urged a panel of 9th Circuit judges to block the state's new energy efficiency standards as pre-empted by federal law.

In a 2010 lawsuit, the Building Industry Association of Washington and other construction industry groups said the new rules could add up to $15,000 to the price of a new home.

The Washington State 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, which went into effect in 2011, allow builders to choose from several options to obtain a building permit. Each of the options correspond to a certain amount of energy savings points. For example, a high-efficiency water heater is worth 1.5 points while renewable electric energy is worth 0.5 points.

The construction groups say the 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.

U.S. District Court Judge Robert Bryan sided with the state last year, finding the rules did not violate the commerce clause. He also ruled that the challengers failed to identify an equivalency problem with the credits and the measures they represent, or that compliance with the rules results in a "wide disparity of costs."

At a 9th Circuit appellate hearing last week, Building Industry Association attorney Timothy Harris called the updated code "unfair, inequitable and pre-empted by federal law."

Judge Ronald Gould cut to the heart of the issue by asking whether "Congress decided that energy savings, like politics, ultimately requires action at the local level."

Harris replied that Gould's characterization was "absolutely true," but said Congress did not mean to spur a "patchwork of different regulations."

The Washington energy savings rules "vary widely" and don't meet a congressional test, Harris said. Whether the options are subjected to the federal law, they must show a one-to-one equivalency between credits and energy efficiency, he added.

The amount of energy savings for installing an efficient water heater has to be the same for installing a solar panel, because they are both receive the same credit, Harris said. In reality, however, these measures represent different energy savings.

"Get back to the drawing board and come up with some real world solutions that actually save energy and are cost effective," Harris said.

Judge Mary Schroeder asked Harris how many of the options he thought were "out of whack."

"I think they're all out of whack," he replied.

Ann Essko, representing the state, said the new rules were "broad and flexible," based on sophisticated computer modeling. She disputed whether they require builders to exceed federal standards.

"The BIAW has not demonstrated that any other real world options exist or that it's possible for the energy efficiencies for options to be any closer than these," she said.

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