On Friday, I posted the complaint for BIA v. Washington State Building Council, filed on May 25, 2010 by the Building Industry Association of Washington to enjoin (or, in regular english, stop) the Washington State Energy Code from taking effect on July 1, 2010. The case is structured similarly to AHRI v. City of Albuquerque, which I have written about extensively on GBLB.
The foundation of both AHRI and BIA is in essence one of preemption--that the federal government has enacted laws that prevent lesser governmental authorities from passing laws on the same subject. In BIA, the plaintiffs allege that the requirements of the Washington State Energy Code
in conflict with and preempted by federal law and regulations which govern the energy efficiency of certain residential heating, ventilation air conditioning and plumbing product, including the Energy Policy and Conservation Act of 1975 ("EPCA"), as amended by the National Applicance Energy Conservation Act of 1987 ("NAECA"), Public Law No. 100-12, and the Energy Policy Act of 1992 ("EPACT"), Pubilc Law No. 102-486, 42 U.S.C. Sec. 6297. As a result, Chapter 9 violates the Supremacy Clause in Article VI of the United State Constitution.
What is most interesting about the BIA suit is that the Washington State Energy Code did not mandate enhanced energy efficiency of the HVAC equipment. Rather, it allowed for a point system whereby energy efficienct HVAC components were one path for compliance with an overall energy efficiency target. The BIA complaint alleges that it is essentially impossible to comply with the energy efficiency targets without installing enhanced HVAC equipment. This is an interesting twist on the AHRI case, because here it is possible to comply with the Washington State Energy Code without running afoul of federal HVAC energy requirements.
Another interesting argument is in a footnote. One path for compliance with the Washington State Energy Code is to build a house less than 1500 square feet. The complaint states:
Plaintiffs would submit that a blanket regulation forcing individuals to live in or contruct a home of a certain size runs afoul of constitutional protections against unlawful takings.
Two things are true: 1) the Washington State Energy Code is not a blanket regulation forching individuals to construct or live in a home of a certain size, and 2) even a blanket regulation that did not essentially eliminate all value from a property would not be considered a regulatory taking. So this argument, while appealing at first glance, is probably not very valid.
One time is an anomaly, twice is a pattern. As states and local governments seek to regulate energy efficiency, I believe we will see more suits like AHRI and BIA until the federal government upgrades HVAC energy efficiency requirements (which they are in the process of doing), or a nationwide energy efficiency building code goes into effect.