Will The Separation Of Powers Kill Climate Change Action? Call In the Green Deal Coalition

I promised a post on Obama's State of The Union, but in mulling over my response to the speech and several other events which have occurred in the days that followed, I realized that the issue which needs to be addressed is the degree to which the separation of powers between the executive and legislative branches of the government of the United States will serve to delay or derail real regulatory action on climate change (and green building), even where a strong executive seeks to pursue these goals.

The only hope is for Republican and Democratic senators concerned about climate change to form a coalition with the Obama administration.  This will require pressure from a new New Deal coalition--a "Green Deal" coalition of citizens, corporations concerned about the impact of climate change on their businesses, unions seeking new clean energy and green construction jobs, minorities seeking access to the middle class and political machines seeking a big win. If these factions can align behind climate change regulation, real legislative progress is possible.

Our government is one of limited, separated powers.  The Executive Branch has only three real avenues of power--administrative, diplomatic and rhetorical.

Over the past few months, the Obama administration has been using the administrative tools within the delegation of executive power to boost climate change regulation.  On December 7, 2009, The EPA made an endangerment finding with respect to greenhouse gases. On January 7, 2010, the SEC issued guidelines regarding corporate disclosure of climate change risk.  On October 5, 2009, Obama issued an Executive Order requiring all federal agencies to assess their environmental impact, and setting aggressive green building requirements for federal facilities, followed on January 29, 2010 with an announcement pledging  to reduce the federal government's greenhouse gas pollution by 28 percent by 2020. 

Obama also used his diplomatic authority to forge an international accord at Copenhagen, however limited.  All 55 countries, responsible for more than two-thirds of global greenhouse gas emissions, submitted plans to curb their impacts as of 1/31/10.  

Finally, using his rhetorical power, in Obama's State of The Union, he tied investments in clean energy to economic growth, and encouraged the Senate to pass a clean energy bill:

Next, we need to encourage American innovation. Last year, we made the largest investment in basic research funding in history -– (applause) -- an investment that could lead to the world's cheapest solar cells or treatment that kills cancer cells but leaves healthy ones untouched. And no area is more ripe for such innovation than energy. You can see the results of last year's investments in clean energy -– in the North Carolina company that will create 1,200 jobs nationwide helping to make advanced batteries; or in the California business that will put a thousand people to work making solar panels.

But to create more of these clean energy jobs, we need more production, more efficiency, more incentives. And that means building a new generation of safe, clean nuclear power plants in this country. (Applause.) It means making tough decisions about opening new offshore areas for oil and gas development. (Applause.) It means continued investment in advanced biofuels and clean coal technologies. (Applause.) And, yes, it means passing a comprehensive energy and climate bill with incentives that will finally make clean energy the profitable kind of energy in America. (Applause.)

I am grateful to the House for passing such a bill last year. (Applause.) And this year I'm eager to help advance the bipartisan effort in the Senate. (Applause.)

I know there have been questions about whether we can afford such changes in a tough economy. I know that there are those who disagree with the overwhelming scientific evidence on climate change. But here's the thing -- even if you doubt the evidence, providing incentives for energy-efficiency and clean energy are the right thing to do for our future -– because the nation that leads the clean energy economy will be the nation that leads the global economy. And America must be that nation. (Applause.)

In short, Obama is doing everything within his delegation of authority to enhance climate change regulation.  But, at the end of the day, the President cannot make laws.  He cannot force corporations or citizens or even states to undertake major changes to their actions which would be necessary to make dramatic reductions in greenhouse gas emissions.  He cannot withhold federal funds from states that fail to regulate or curb their own greenhouse gas emissions.  Those powers remain exclusively with Congress.  Only Congress can cap greenhouse gas emissions. Only Congress can tax greenhouse gas emissions.  Only Congress can enact a national enegy efficiency building code, or compel states through withholding funds to update their building codes to promote green building and energy efficient practices. 

In a system of separated powers, significant social change requires cooperation among the branches of government. So, with the partisan bickering in Washington and the recent election of a Republican senator in Massachusetts, the chances of significant progress on climate change regulation have decreased.  Only the Green Deal coalition can save us.

Resolving Federalism Issues Through Form Based Energy Codes

wrote last week about the proposed National Energy Efficiency Building codes contained in Section 201 of Waxman-Markey. 

Section 201 of the Waxman-Markey Act calls for the development and adoption by state and local governments of a national energy efficiency code. A summary of the main provisions are as follows:

1. Establishes a “national energy efficiency building code” for residential and commercial buildings, sufficient to meet each of the national building code energy efficiency targets.

2. Sets energy efficiency targets for the national building code: “on the date of enactment of the American Clean Energy and Security Act of 2009, 30 percent reduction in energy use relative to a comparable building constructed in compliance with the baseline code…effective January 1, 2014, for residential buildings, and January 1, 2015, for commercial buildings, 50 percent reduction in energy use relative to the baseline code; and…January 1, 2017, for residential buildings, and January 1, 2018, for commercial buildings, and every 3 years thereafter, respectively, through January 1, 2029, and January 1, 2030, 5 percent additional reduction in energy use relative to the baseline code.”

3. If consensus based codes provides for greater reduction in energy use than is required under the ACESA, the overall percentage reduction in energy use provided by that successor code shall be the national building code energy efficiency target.

4. Requires that states and local governments comply with or exceed the national energy efficiency building code, and provides for enforcement mechanisms for states which are out of compliance.

The federalism issue looms lage with this provision of Waxman-Markey.  Building codes have historically been a state and local concern, not a national one. Advocates of state and local governance are already objecting  to this proposed transfer of authority.  On the other hand, state and local governments have failed to maintain current building and energy codes, in some cases imposing no building codes whatsoever. How to resolve this situation? 

 The answer, I believe, is form based energy codes. Form-based zoning codes:

are keyed to a regulating plan that designates the appropriate form and scale (and therefore, character) of development rather than only distinctions in land-use types.

By analogy, the Senate version of Waxman-Markey could maintain the targets for energy efficiency of building codes, and allow states and local governments to meet them through any means that fits the state and local needs.  This allows for continuing control of building codes at the state and local level, but mandates that state and local governments must have updated codes.    

State Preemption--When state law kills local green regulation

I have written a lot about federal/local conflicts in green building regulation, particularly in regard to AHRI v. City of Albuquerque.  Today I want to address state law preemption--when state laws prohibit localities from regulating green.

A great example of this is in the Commonwealth of Pennsylvania where I practice law. 

In 2004, Pennsylvania adopted the Uniform Construction Code (UCC), a common building code for all municipalities in Pennsylvania. 


The UCC in itself does not prevent local governments from passing green building regulations related to the building code as long as:

  • the requirements are equal to or more stringent than the UCC,
  • the local government secures approval from Pennsylvania’s Department of Labor and Industry,
  • the local government provides appropriate public notice

L&I provides a web overview of the requirements for making changes to the UCC here.


The legal requirements are Section 503(b-k) of Act 45, 403.102 of the UCC Regulation, both available at PA L&I website.


PA L&I will evaluate the proposed change based on the following criteria:
     (i) that certain clear and convincing local climatic, geologic,
     topographic or public health and safety circumstances or conditions
     justify the exception;
     (ii) the exception shall be adequate for the purpose intended and
     shall meet a standard of performance equal to or greater than that
     prescribed by the Uniform Construction Code;
     (iii) the exception would not diminish or threaten the health, safety
     and welfare of the public; and
     (iv) the exception would not be inconsistent with the legislative
     findings and purpose described in section 102


However, certain court decisions have made it questionable whether green building goals would satisfy the “clear and convincing” standard to justify the exception.  In Schuylkill Twp. v. Pa. Builders Ass'n, 935 A.2d 575 (Pa. Commw. Ct. 2007), the Commonwealth Court held that townships must prove that “the conditions there were so different from the statewide norm that the uniform standards were not appropriate to use in the Township,” in order to satisfy the “clear and convincing” standard for an exception to the UCC.  

This case is currently up on appeal before the Pennsylvania Supreme Court to determine whether the Pennsylvania law implementing the UCC requires a municipality to prove that there are unusual local circumstances or conditions atypical of other municipalities to justify an exception to the UCC.


If the Supreme Court determines that atypicality is required, local governments would have a very difficult time passing green building standards which required building practices different from those in the UCC--it would be very hard to argue that the benefits of green building any different in one township than any other in Pennsylvania.   











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

City of Albuquerque Suit--UPDATE

In July, I first wrote about the HVAC indistry associations suing the City of Albuquerque to invalidate Albuquerque's green building codes in one of the first instances of green building litigation. The HVAC plaintiffs filed a Motion for a Preliminary Injunction to prevent the City from enforcing the green building codes, and a hearing was held yesterday. I spoke with Doug Baker, attorney for the HVAC plaintiffs, who felt the hearing went well. His team of attorneys argued that Albuquerque should be preliminarily enjoined from enforcing the codes because they were preempted by Federal law, and that Albuquerque's attempts to amend the code to circumvent preemption were unsuccessful. Mr. Baker told me that the judge expects to rule on the preliminary injunction motion tomorrow. Stat tuned.

The States Taketh, The Feds Giveth Away

I have written extensively here on the federalism issues associated with regulating green buildings and climate change in general, which I believe is going to be a major factor in whether the United States can effectively manage climate change. In another example of the states regulating and the feds deregulating (or actually just preventing climate change laws from taking effect), Delaware made revisions to its state implementation plan under the Clean Air Act, making carbon dioxide a regulated pollutant. http://ehscenter.bna.com/PIC2/ehs.nsf/id/BNAP-7JEFLD EPA Region 3 approved Delaware's SIP with the carbon dioxide regulation in place. Now, the EPA is reconsidering the approval of Delaware's SIP.

Federalism--Green Building Law Quagmire?

Federalism, one of the founding principals of American democracy by which states (and through the states, cities, counties and municipalities) and the Federal government have there own spheres of governance, may ultimately strangle effective green legislation.

I wrote on the blog earlier this summer about a suit filed by HVAC indsutry associations challenging Albuquerque's green building code claiming that the energy requirements for the HVAC equipment was preempted (i.e. already regulated) by Federal law. http://greenlaw.blogspot.com/2008/07/green-building-litigation-hits-in-new.html

Yesterday, "Following months of debate and squabbling, the House of Representatives just passed a bill that could open America's coasts to offshore drilling, as well as extend the tax credits for clean energy and offer other incentives for clean power and green transportation." http://earth2tech.com/2008/09/16/house-approves-offshore-drilling-extends-clean-energy-credits/ One of the complaints Earth2Tech noted that the Republicans have voiced about the bill is that "the bill also creates a federal renewable portfolio standard that would require 15 percent of the nation's electricity to be generated from renewable sources. Going beyond states' mandates is viewed as a form of "big government" with which Republicans disagree."

In short, the Republicans are saying that the Federal government shouldn't pass sustainability regulations, and certain interest groups are suing to prevent states (and through them, municipalities) from regulating, it could create a quagmire in which no government entity is able to effectively pass sustainability regulations.

Albquerque Green Building Litigation--Column on Greenerbuildings.com

I wrote an extended column on the Albuquerque green building litigation which was published by our friends at greenerbuildings.com.

Please read it here--http://greenerbuildings.com/column/2008/07/11/open-floodgates-the-era-green-building-litigation

Green Building Litigation Hits In New Mexico

Well, I've been writing for a while that the green building litigation wave would hit, and it has. A coalitiion of industry groups and local companies has filed a federal lawsuit claiming that Albuquerque's green building code is pre-empted by federal law. The suit claims, in essence, that Albuquerque's code has set energy requirements for certain appliances like air conditioners "that are already covered in federal law and Energy Department regulations". http://www.abqjournal.com/news/metro/080732metro07-08-08.htm

I am currently gathering intel on the suit and will post more later.

Green Federalism and The Role of Local Government in Environmental Regulation

Since the end of the Clinton administration, environmental regulation in the United States has largely been the domain of the states and local governments. This eventuality is somewhat counter-intuitive. Environmental damage has traditionally been a prime candidate for federal regulation because of its cross-border effects. The pollution which is generated in Mississippi will blow into Alabama, the water which is used in Colorado is unavailable in California. The first federal regulation of the environment in the 1970s and 1980s was basically established on this premise.

However, the lack of federal action on global warming s has created a well-spring of creative legal experimentation with local control of cross-border problems. For example, California is proposing to triple its greenhouse gas regulations over the next few years, proposing regulations requiring trucks and trailers to be fitted with devices to reduce aerodynamic drag, setting standards to reduce perfluorocarbon emissions in the semiconductor industry and having workers at tuneup and oil-change shops check tires for proper inflation as part of the service. Several states have developed anti-sprawl initiatives, including urban growth boundaries, open space preservation requirements and tranditonal neighborhood development zoning plans. SQUARING THE CIRCLE ON SPRAWL: WHAT MORE CAN WE DO? PROGRESS TOWARD SUSTAINABLE LAND USE IN THE STATESNAME, Patricia E. Salkin, 16 Widener L.J. 787 (2007). Most significant may be the regional and even international accords which are developing, including the Regional Greenhouse Gas Initiative in the Northeast--http://www.rggi.org/-- and the Western Climate Initative--http://www.westernclimateinitiative.org/Index.cfm.

But the ultimate question remains--can a non-federal patchwork of environmental regulations effectively combat global warming? I think not. There will be states and regions that lag behind, failing to regulate pollutants. Companies interested in avoiding the regulations will relocate to those areas with fewer regulations. The federal government maintains its ability to preempt any state or regional regulations, so that the federal government can clip the wings of any local or regional regulatory scheme.

However, state and local action may be responsible for shifting the federal government towards further regulation, and providing a pre-tested set of initatives which could be scaled up to the national level under new leadership.