Strengthening States' Authority To Enact Tougher Green Building Standards

Treehugger has an article identifying 7 executive orders which Obama should sign to protect the environment.

The one which interested me calls for protecting stronger state laws from weaker federal ones

The next President should [...] should amend the existing Executive Order on Federalism to strengthen provisions setting forth a presumption against preemption; require agencies to provide a written justification for preemption; and require that, when a federal statute allows states to adopt more stringent standards or seek a waiver of statutory preemption (as in EPA's denial of California's Clean Air Act waiver), agencies must provide a written justification to the White House before denying the state's regulatory authority or waiver request. As is the case with the existing Executive Order on Federalism, these recommendations are consistent with the goals of the various statutes under which the environmental, safety, and public health agencies operate, including the National Environmental Policy Act.

The preemption issue has proven to be extremely significant in green building regulatory challenges. In AHRI v. City of Albuquerque, we saw an effective challenge to Albuquerque's green building code based on weaker federal energy standards for HVAC equipment. See my post here for more on the AHRI v. City of Albuquerque case.

However, an executive order will not go very far to prevent federalism challenges to green building regulation. For example, it would not have effected the challenge to Albuquerque's green building code because 1) the City of Albuquerque never applied for a waiver, so the executive order would not have applied in that case, and 2) Congress specifically preempted state regulation of energy efficiency of HVAC equipment.

See related posts on green building law and federalism here
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Kev H - November 12, 2008 10:59 AM

I’m trying to determine where you stand on preemption. I get the sense that you are for the idea of state/local regulations, but have issues with some of the “implementations”. In a follow up comment or another post can you elaborate on this? Also, I’m not sure where you stand on the Treehugger article. Do you feel a call for an executive order an outright bad idea, a wasted effort, or some other shade of grey? Wouldn’t an executive order help show intent?

Shari Shapiro - November 12, 2008 1:19 PM

Thanks for the comment Kev. I don't have a stand on preemption--it is an inherent conflict in the US government system. There are pros to state/local level regulation (local control and variability for local conditions, for example) and for federal regulation (uniformity, no cross-border issues); and cons to both as well. The Executive Order suggested in the TH article is not a bad idea, just not a panacea for the federalism issues related to green building regulations.

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