Green Building Law Blog

By: Patrick J. Bello, LEED AP, Drexel University Earle Mack School of Law, Class of 2012

As previously posted, on October 3, 2008 in AHRI v. City of Albuquerque, District Court Judge Martha Vazquez issued a preliminary injunction against the City of Albuquerque prohibiting the city from implementing its initial green building regulations because it would require more stringent HVAC energy efficiency regulations than those currently set forth in the Energy Policy and Conservation Act of 1975 (EPCA).

In essence, Judge Vazquez determined that accepting the AECC would mean that builders could be penalized for using federally acceptable standards, and thus the federal EPCA requirements were found to preempt the new State regulations.

In response to and in compliance with the injunction, the City of Albuquerque has since passed the 2009 Interim Albuquerque Energy Conservation Code (IAECC). Led by the Sierra Club and the Southwest Energy Efficiency Project (SWEEP), the IAECC was passed and took effect in December 2009. The Code was drafted so that the areas of regulation at issue in AHRI v. City of Albuquerque remain unchanged at the federal minimums, but maintains other previously enacted energy-reduction legislation and raises standards for additional energy efficiency components such as the building envelope, windows, and lighting in order to stay on track with the City’s energy reduction goals. The IAECC meets the current “Architecture 2030 Challenge” to achieve a 30% overall improvement above and beyond the 2006 International Energy Conservation Code (IECC) baseline.

 In a brief telephone interview with the City of Albuquerque Attorney John Dubois, much light has been shed on the present situation. To date the IAECC has been met with success. The City does in fact meet their planned efficiency goals for attaining the projected 30% energy savings, and they have done so without making any changes to HVAC standards. However, according to Mr. Dubois, without the ability to incorporate restrictions and regulations on HVAC components the IAECC is a “dead end.”

In other words, the City has “squeezed” most of the possible additional energy reductions from various aspects of the building, including lighting, roof reflection and windows, but given the fact that HVAC energy usage encompasses a major component of the energy consumption of any building (whether new construction or renovation) the City will not likely be able to move beyond that 30%, thus putting a stoppage to continued energy reductions in the future.

The IAECC is meant only to be a temporary fix while litigation continues. The City has complied with Judge Vasquez’ preliminary injunction, but upon resolution of the case the IAECC will automatically end. If the City of Albuquerque is to prevail, the original Energy Conservation Code will be reinstated. If AHRI is to prevail, the IAECC will still be taken out of effect, and new standards in further compliance with the decision will be reexamined and implemented.

At present, the litigation is on hold pending Judge Vasquez’ decision to either grant AHRI’s motion for summary judgment, or to allow the case to proceed. Everything is fully briefed and ready to go, and according to Mr. Dubois the decision could come in “any day.” The City is hoping to get the opportunity for discovery and a trial because it still fervently believes that the regulations under litigation are not in fact preempted by the federal standards.

Just to clarify one last commonly misconstrued point following this case, is that the oft quoted idea that the City was “unaware” of federal preemption issues upon the passage of its Energy Conservation Code is actually inaccurate. By the time of the final bill, the City had in fact already made certain changes to address the preemption issues. The Code that is actually under litigation was initially passed with some inconsistencies and points requiring clarification, but the City gave itself a wide berth before the Code would take effect. The drafters gave themselves the time to review the Code and were in fact aware of the preemption argument when they chose to move forward. The reason for doing so is because all standards and requirements in the original Code are “performance based.” Buildings need only meet certain levels of energy efficiency, the manner in which these standards are achieved is not prescribed by the Code. Specific equipment is not mandated, and there are various different ways of achieving the goals. At the time the Code was passed, and still today, the City of Albuquerque strongly believes that the Code is not preempted by federal law and it is sticking by this belief.