Green Building Law Blog : Green Building Lawyer & Attorney : Shari Shapiro: Calliope Communications, LLC

Better air quality or slower adoption of building codes? Like a rebellious teenager, Utah is having an identity crisis over building codes. The answer, of course, is to listen to mom.

According to Ingrid Griffee, executive director of Utah Moms for Clean Air from a KSL.com post:

Waiting at least six years to update our codes means Utahns will not have the energy efficient homes we need to help clean up our air and save money.

Polling indicates that Utahns want better air quality, and the Clean Air Action Team created by Governor issued a formal report that included more stringent energy codes to help achieve this goal.

At the same time, HB 285 was introduced in the Utah legislature which would extend the building code adoption cycle to 6 years (down from the recommendation of a 9 year cycle last session). The bill also requires a cost-benefit analysis of each provision of new codes applicable to 1- and 2- family dwellings and low rise townhouses.

These two efforts are fundamentally incompatible. The 2009 codes were 15% more energy efficient than the 2006 codes, the 2012 codes were 15% more energy efficient than the 2009 codes, and the 2015 codes gave more options for builders to comply.

If Utah had skipped the 2009 or 2012 code cycles, energy efficiency and the air quality benefits would have been missed as well. If the 2015 codes were skipped, builders would miss out on cost savings.

The provision-by-provision cost-benefit requirement has been shown in other states, like North Carolina, to be a tactic to delay or derail adoption of new codes.

From an economic standpoint, the changes have already been subject to an economic analysis by the International Code Council committees that evaluate code changes. For the forthcoming cycles, a new ICC policy change now not only requires advocates to indicate whether a proposed code change will increase the cost of construction, along with a requirement to substantiate the cost increase, but also carries a stipulation that if a cost impact statement or substantiation is not provided, the proposed code will be considered incomplete and not processed.

Second, there were 1900 changes from the 2012 to the 2015 codes. This requirement is onerous and pointless. The new codes should be evaluated as a whole, and based on the safety, environmental and welfare aspects as well as any potential economic cost.

It is always a mistake to argue with mom. Like a heart tattoo with your prom date's name, the Utah legislature should use its better judgment and reject the pointless building code adoption legislation and allow the review and adoption of codes to proceed, benefitting both the environment and increasing the safety and welfare of Utahns.

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A lot of attention has been paid to creating a greener building stock by incorporating green building practices into building codes.  The development of the International Green Construction Code is just one example.

However, there are two primary components to every regulation--policy and process.  Both components are critical to acheiving regulatory goals. Good laws that are not implemented and enforced might as well not exist, and bad laws which are well implemented create a different, but equally bad, outcome. 

The process for approving building codes is arcane at best and impenetrable at worst. To those interested in sustainability, code process may seem like the ultimate "inside baseball" information, like knowing what the Lou Brock's 1967 out statistic was--simply not vital to understanding baseball as a whole.  HB 377, a law signed by Pennsylvania Governor Tom Corbett this week demonstrates how how process changes can impact green building and energy efficiency policy. 

 Generally, the process for adopting building codes is as follows:

1.  The local or state government enacts enabling legislation requiring a building code, often incorporating the International Code Council's model code.  

2.  The International Code Council updates their model building codes on a regular basis, once every three years.

3.  The state or local government has some mechanism, either automatic or through an approval process, for updating its building code to the new version. 

Depending on what level of authority is provided to local governments with respect to their building codes, local governments may adopt additional or different changes to the building code requirements.

Pennsylvania has a state wide building code which, until this week, was an "opt-out" model.  Updates to the International Construction Code were automatically incorporated into the Pennsylvania code unless provisions were specifically rejected by a Governnor-appointed council comprised of builders, architects, code officials and so on. 

The bill enacted this week switches the code adoption to an "opt-in" model.  Any changes to the construction code must be approved by a super-majority vote by the council, otherwise the prior code remains in effect.  In addition, the law adds an additional seat to the 19 member council for:

A GENERAL CONTRACTOR FROM AN ASSOCIATION REPRESENTING THE NONRESIDENTIAL CONSTRUCTION INDUSTRY WHO HAS RECOGNIZED ABILITY AND EXPERIENCE IN THE CONSTRUCTION OF NONRESIDENTIAL BUILDINGS

Policy watchers, like Penn Future , the Delaware Valley Green Building Council, and the Northeast Energy Efficiency Partnerships , anticipate that the super-majority vote of the council will make enacting updates of the ICC very difficult, and that the extra seat for the general contractor will bias the council against upgrading the stringency of the building code. This, of course, includes code changes for greater energy efficiency requirements and incorporating green building practices.

HB 377 said nothing about energy efficiency or green building.  Nonetheless, the changes to the building code adoption process creates a potentially significant barrier to a greener building stock in Pennsylvania.  On a 20 person board, It would require 13 votes to put a code change into effect, and each change must be lobbied for separately.  

Do you know what the code adoption process is in your state or municipality?  Are there any proposed changes?  Let GBLB know what you find out.  It might surprise you.    

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