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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There is a war on building codes across the United States, and Pennsylvania is ground zero.

After years of regular building code updates, a law was passed in 2011 (Act 1) at the urging of the Pennsylvania Builders Association to make it essentially impossible for building codes to be updated. 

Last Thursday, the Clean Air Council decided to take action, filing suit against the Commonwealth for its failure to adopt both the 2012 and 2015 codes, and challenging Act 1. The Petition in Commonwealth Court is available here, with the extensive exhibits available here. 

In summary, the suit alleges that the Pennsylvania Review and Advisory Council (RAC), the 19 member body charged with reviewing and adopting building codes rejected the 2015 codes for no reason and against the recommendations of its own technical review subcommittees. It also alleges that Act 1 violated the Pennsylvania and Federal constitutions by creating a process that makes code adoption impossible.

Pennsylvania is an example of a nationwide trend. Starting with the 2009 codes, homebuilders associations in many states have sought to delay or derail code updates by taking over administrative building code review councils and lobbying for draconian legislation. North Carolina is another example, where the codes are now on a 6 year cycle, and more legislation is in the works (HB255) to make adoption even more difficult. 

The implications for the built environment in terms of safety, energy efficiency, cost-effectiveness and resilience from natural disaster damage are massive. 

Of course, up-to-date codes save lives. Recently, a 2 year old child fell out of a window that was not built to the current codes. Had the current codes been in effect, the window would not have been able to open as far, preventing this tragedy. 

With natural disasters on the rise, making the built environment more resilient is critical. The Federal Emergency Management Agency (FEMA) determined that $1 spent on preparedness for natural disasters will save $4 in restoration costs. FEMA has also said that up-to-date building codes are among the most cost-effective mitigation measures. 

The 2015 codes include many flood-related provisions, including changes to the 2015 International Residential Code supported by FEMA’s Superstorm Sandy analysis report.

Up-to-date codes save consumers money and benefit the environment through greater energy efficiency. The 2015 codes are 15% more energy efficient than the 2009 codes, and 30% more energy efficient than the 2006 codes. The Department of Energy estimates that consumers will save between $4000-$24,000 over the course of a 30 year mortgage (2009 compared to 2015 codes), as well as reducing air pollution and greenhouse gas emissions. Simple payback will be less than two years. 

The health of the United State's manufacturing sector and the safe and effective installation of new technology also requires regular building code updates. 

Investment:  The investment decisions of electrical manufacturing companies like Eaton, Tyco, Lutron and others in capital equipment, machinery, and jobs are often based upon nationwide adoption of codes.  When those codes are not adopted, or adoption is delayed, decisions to make those investments and hire employees are negatively impacted. 

       Risk management:  Installation codes and product standards work hand in hand to ensure public safety and ensure that products perform in the manner in which the manufacture intends and customer expects.  Not adopting the latest code puts us at risk, first responders at risk, engineers at risk, distributors at risk, general contractors, electrical contractors and citizens at risk.  Liability can be increased for all of the above if up-to-date codes are not adopted.  These companies build products to meet new code requirements, and expect the equipment to be installed in that manner across the United States. 

 Innovation:  New technology, like ground source heat exchange, high-pressure decorative exterior grade compact laminates, dynamic glazing, solar energy systems, electric vehicle charging stations and many others have been gaining traction over the past few years.  Up-to-date codes provide guidance on the safe and effective installation of these new products.  For example, the 2015 codes have updated roofing requirements for installation, wind resistance, fire classification and others.  These changes will protect the lives of homeowners and first responders alike. 

The Clean Air Council chose to take this issue head on, and I will keep you updated on the progress. 

Image courtesy of kdshutterman at FreeDigitalPhotos.net

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As the reaction to EPA's Clean Carbon Plan has demonstrated in living color, environmental regulation is tough in the United States in 2014.  For many years, there has been many efforts to use innovative tools to promote adoption and enforcement of energy efficient building codes.  I think there is a lot to learn from these efforts, as I discuss in my piece at RegBlog, the blog of the University of Pennsylvania Program on Regulation.  

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What if there was a technology that had a 20 year track record of saving 4.8 quads of energy and 41 million tons of carbon, while saving consumers more than $44 billion over the past 20 years, and was anticipated to save consumers up to $230 billion on their utility bills, 53 quads of energy and 3,995 million tons of carbon from 2012-2040? 

What if the return on that technology was $400:$1--for every $1 of government program money spent, the return in cost savings was $400?

You would think that the EPA would have that technology at the top of its list of ways for states to reduce energy use and carbon emissions to comply with its new Clean Power Plan regulations. Instead, the EPA's response was "meh:"  

[Building energy codes*] might have substantial impact[], and the EPA does not want to discourage their implementation in state plans, but they might require development of appropriate quantification, monitoring, and verification protocols. The EPA and its federal partners intend to discuss the development of appropriate EM&V protocols for such measures with states in the coming years.

Federal Register, Vol. 79, No. 117, Wednesday, June 18, 2014 at 34921.

I don't know why the EPA seems to have a thing against energy codes.  Perhaps it is that energy codes do not require cool new technology like carbon capture.  They do not require states to implement new programs or hire new personnel, because all 50 states already have building codes in place, either at the state or municipal level.  Or maybe it is because when you go to a cocktail party and start to talk about building energy codes, people feel compelled to refill their plate of cheez-its.       

But what I do know is that the EPA's concerns about building energy codes seem to run contrary to recent scholarship and state experience with building energy code programs.  

Two recent publications—one from the Pacific Northwest National Laboratory and a joint study by the Northeast Energy Efficiency Partnerships, the Edison Foundation and the Institute for Market Transformation—have protocols for measuring and verifying building energy code program savings.  In addition, over 10 states have included building energy code programs in their utility energy efficiency programs, many of which include M&V protocols.  

Even if the EPA is correct that there is some uncertainty and variability in M&V of building energy codes, the evidence of energy and carbon reductions for other compliance pathways that EPA supports, like carbon capture and storage, are much, much less certain.  

You have until October 16, 2014 to submit a comment on the proposed rule, letting EPA know that building energy codes should be at the top of its list of compliance paths, not the bottom.  

* Building energy codes are  minimum  standards for energy efficient design and construction for new and renovated buildings.  Like all construction codes, building energy codes are adopted as law by states and municipalities, and enforced by building code officials.          

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The Court of Appeals of the State of New Mexico handed down a limited win for energy code advocates, holding that adopting changes to building codes that removed energy conservation provisions without any justification violated administrative procedure. The decision is available here.

Between 2006 and 2012, the construction and energy codes adopted in many jurisdictions have incorporated provisions increasing the energy efficiency of buildings built to code by 30% (15% from the 2006 to the 2009 codes, and an additional 15% from 2009 to 2012). 

As I have posted about previously, there is a trend nationwide to resist adoption of the 2012 codes, in part based on the increased energy conservation requirements. In the case of New Mexico, the state had adopted codes which had energy conservation requirements beyond those in the 2009 energy codes. 

The New Mexico Construction Industries Commission (the "Commission") sought to adopt changes that would have removed any energy conservation provisions from the New Mexico codes that exceeded the 2009 International Energy Conservation Code (IECC).

The Commission held several public meetings and solicited public comments on the code changes.  Then, at a June 2, 2011 meeting, after a brief and (frankly) confusing statement by the Chair of the Commission, the Commission voted to adopt the code changes without further discussion.

Several groups including the Southwest Energy Efficiency Project, Environment New Mexico, several green builders, the Sierra Club and other sued to overturn the Commission's decision for (among other arguments) being "arbitrary and capricious" due to the Commission's lack of discussion and justification for the decision. 

The Court of Appeals held that the Court could not even determine whether the Commission's decision was valid because the Commission failed to provide "what facts and circumstances were considered and the weight given to those facts and circumstances."  Southwest Energy Efficiency Project v. New Mexico Construction Industries Comm'n, No. 313838, April 4, 2013 (N.M. Ct. Appeals) at 10.  The Court remanded the Codes to the Commission for reconsideration, with a justification of its reasons for its decision. 

The reason why I characterize the decision as a "limited win" is that, assuming that the Commissioners are the same, there is no reason why the decision on the code adoption will change. If the code revisions are again adopted, with justification, the Plaintiffs will have to institute another legal action, and demonstrate that the justification provided by the Commission is arbitrary and capricious. 

However there may be value to the plaintiffs simply by filing the suit and making the Commissioners justify to the citizens of New Mexico in writing why the homes they live in should not be energy efficient. 

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The fifty billion dollar (yes, that's $50,000,000,000) Hurricane Sandy Relief Bill (the "Relief Bill") is headed to President Obama's desk for his signature. The Full Text of the bill is available here http://www.gpo.gov/fdsys/pkg/BILLS-113hr152rds/pdf/BILLS-113hr152rds.pdf 

The Relief Bill provides several different opportunities for the Federal government to encourage states to adopt up-to-date building codes by tying distribution of the funds to commitments from the states to adopt the most up-to-date building codes. 

 According to studies by the Multi-Hazard Mitigation Council, for every dollar invested in building code adoption and enforcement, four dollars are saved in recovery costs.  As a result, FEMA has been very public about the critical role building codes play in reducing building damage from natural disasters. 

David Miller, the Associate Administrator for Federal Insurance and Mitigation Administration at FEMA, testified before the House Committee on Transportation and Infrastructure last year on this issue, concluding:

Post-disaster assessments of many communities have shown a direct relationship between building failures, the codes adopted, the resources directed toward implementation and enforcement, and the services available to support those codes.

Tying emergency relief funds to code adoption would not be new.  Department of Energy state energy block grants from the American Reinvestment and Recovery Act (ARRA) were tied to governors' commitments to adopt the 2009 version of the International Energy Conservation Code (IECC) and ASHRAE 90.1-2007, as I posted in greater detail here http://www.greenbuildinglawblog.com/2013/01/articles/codes-1/2009-energy-code-adoptions-required-by-arrawhere-are-they-now/

Two allocations which could logically be tied to building code adoption commitments are the $5.4b allocated to the Federal Emergency Management Agency (FEMA) for the Disaster Relief Fund and the $16b allocated to the Department of Housing and Urban Development (HUD) for "necessary expenses related to disaster relief, long-term recovery, restoration of infrastructure and housing, and economic revitalization..." (Bill at 74)(emphasis added).

However, in tying emergency fund allocations to code adoption, FEMA and HUD should incorporate some lessons learned through the ARRA commitments.  First, the ARRA commitments only related to a one-time adoption of the 2009 energy-related code provisions.  Second, there was no reporting required from the states on their progress with adoption and enforcement of the codes.  Finally, as I posted here (http://www.greenbuildinglawblog.com/2013/01/articles/codes-1/2009-energy-code-adoptions-required-by-arrawhere-are-they-now/), enforcement of the commitments has been weak.  To be effective, any code-related commitments must require regular code updates, and a mechanism for reporting and recapture of funds for failure to fulfill the code commitments.

Hurricane Andrew ushered in a new era of code adoption on the Gulf Coast.  With some encouragement by the Federal government, Hurricane Sandy could have the same effect. 

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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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Kerry and Lieberman are due to unveil their long awaited--and until Lindsay Graham's recent exit, nominally bipartisan--cap-and-trade bill this week.  But in a less heralded move, Harry Reid indicated that he could do a smaller energy bill which would likely include national energy efficiency codes.  According to EENews (subscription required):

The "smaller" proposal Reid referred to centers around legislation (S. 1462) the Senate Energy and Natural Resources Committee approved last June. The bill, which won the votes of four Republicans, would impose a national renewable electricity standard, overhaul federal financing for "clean energy" projects, establish a suite of efficiency measures, mandate new federal electricity-transmission siting power and allow wider oil and gas leasing in the eastern Gulf of Mexico.

So, even if cap-and-trade fails, this year may be a big one for federalizing green  building regulations. 

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Yesterday, I discussed why I thought the ICC Green Building Code project was important enough to put off my knitting lessons for.  But you don't have to take my word for it. 

Maureen Guttman, AIA,  Executive Director of the Pennsylvania Governor’s Green Government Council and Member of the ICC Sustainable Building Technology Committee, agreed to talk to Green Building Law Blog about why she felt the ICC Green Building Code Project was significant to sustainability and the Commonwealth of Pennsylvania.   

Guttman is an active leader in the architecture profession, recently serving as the Pennsylvania representative to the American Institute of Architects Board of Directors. She is a recognized expert on building codes and green building policy, and has been instrumental in the development and passage of several pieces of related legislation in Pennsylvania. 

GBLB: Why are you involved in the ICC Green Building Code Project? 

MG: I have been involved in building code stuff for years. I view it as a major obligation of the professional responsibilities as a licensed architect. Building codes are a playbook for the designers of buildings, so compliance with the codes is one of the very fundamental principles that our license is predicated on.

I believe that all architects should be involved in aggressive code awareness. This was one of the things I pushed for on Board of AIA. I think that architects who are not involved in code development and awareness are missing out on what adds value to our profession.

GBLB:  What makes the Green Building Code Project so important? 

MG: This is an unbelievable opportunity to bring together the rules of the game with respect to health safety and welfare and layer on top the environmental health which we are charged with safeguarding. The idea of tying together the tenets of building health and safety and commitment to sustainability and tie it with regulatory procedure is a very exciting opportunity for me personally and for the Commonwealth of Pennsylvania. It is a good sign in terms of our commitment to codes that there are so many of us on the committee involved in developing the green building code—Pennsylvania is obviously a player.

GBLB:  What is the future of the Green Building Code? 

MG: It’s going to be very controversial. It is such a new way of thinking that there is going to be resistence. But hopefully it will provide some uniformity in what municipalities are enforcing as a ”green building". I hope it will also help the existing rating organizations promote ever more advanced sustainable initiatives—keeping the codes on its toes.

GBLB:  What is the future of the Green Building Code for Pennsylvania? 

MG: I’d like to think the green building i-code can be adopted in Pennsylvania as part of the process for adopting new codes. I envision a lively debate on it. I hope that Pennsylvania will be one of the first states to adopt it. It may be on a roll-in or an incentive basis. I hope that Pennsylvania will be at the forefront of pushing the adoption of this code. This will be a slam dunk measure to make some climate change goals achievable, as sole reliance on market incentives may not get us as far as fast.
 

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In the interests of full disclosure, I am a member of the International Code Council's team crafting a Green Building Code. 

Accoding to the ICC:

The objective of this new project is to develop a Green Building Code for traditional and high-performance buildings that is consistent and coordinated with the ICC family of Codes and Standards.

After LEED, Green Globes, BREEM, Energy Star, NAHB Green and the prospective ASHRAE 189, why on earth do we need another green building standard? Is it simply to give people like me something to do in their spare time (I had thought about taking up knitting)? The answer is definitely not. 

As articulated above, the point of the ICC Green Building Code is to be consistent with the other I-codes which most jurisdictions have adopted (or tweaked) as the basis of their building codes. Thus, builders building green buildings must adhere to two standards at least--the conventional I-Code based building code, and the green building standard.  This has caused many issues, including the waterless urinal fiasco, in which waterless urinals were prohibited under conventional code provisions.  By integrating a green building standard with the building code, these types of headaches can be minimized.

In addition,  code officials and policiticians are comfortable with adopting and utlizing I-Codes as the basis for building regulations.  Thus, municipalities do not have to reinvent the code wheel when looking to implement green building practices.

Finally, a solid compromise green building code can advance green building as the default standard.  In California, which has adopted a green building code, various interest groups, including the California Building Industry Association, have come on board with the code. 

There will always be a place for aspirational green building standards.  LEED, for example, should provide new and innovative and more challenging ways to reduce GHG emissions, materials usage, enhance energy efficiency, etc.  The goal of a code, however, should be to raise the floor of all buildings to a greener baseline.  ICC's Green Building Code effort is a step towards making that happen.  So, for me, knitting will have to wait.

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On July 17, 2009, the Senate Energy and Natural Resources Committee approved the American Clean Energy Leadership Act (ACELA),  Senate Bill 1462 . This is a "bipartisan" markup of the House American Clean Energy and Security Act of 2009, also know as the Waxman-Markey Bill. [A summary of the green building provisions of Waxman-Markey from Green Building Law Blog and Green Building Law Update is available here and the Pew Charitable Trusts' resources on all things Waxman-Markey is here. For a primer on getting bills passed in Congress, School House Rock does an excellent job here.]

Among the most significant provisions for green building interests is the National Energy Efficiency Building Codes, Section 241 (it starts at page 228 of the bill).

•  30% improvement in energy efficiency by 2010 and 50% by 2016 for the National Model Energy Efficiency Codes;
• Within 2 years after the passage of ACELA, States must certify whether they have reviewed and updated the building code of the State regarding energy efficiency;
• To certify, States must show that the code provisions of the State at least meet or exceed 2009 IECC for residential buildings and Ashrae 90.1-2007 for commercial buildings (or acheive equivalent or greater energy savings.). 
• Within two years after the Secretary of Energy establishes a modified national energy efficiency code, State must certify that that the code provisions of the State meet the revised code. 
• Within 3 years of certification with the national energy efficiency code, States must certify that they have acheived compliance with the State building energy code or model code or "made significant progress" toward achieving the goal.
• A State is considered to have made "significant progress" if it has developed and is imlementing a plan for achieving compliance within 8 years.
• The Secretary may reduce the energy targets for renovated buildings to "the highest achievable level." 

 To acheive these goals, ACELA appropriates $100,000,000 for fiscal years 2009-2013 for training, enforcement and implementation.

A brief comparison with Section 201 of the Waxman-Markey bill (from the Pew's excellent summary) shows that ACELA's version is a lot softer on the states.

 After enactment, buildings built to a code meeting the national building code energy efficiency target will have a 30 percent reduction in energy use relative to the baseline code. By 2014 (residential) and 2015 (commercial), buildings built to a code meeting the national target will have a 50 percent reduction; an additional 5 percent reduction will be required every three years thereafter, until 2029 and 2030 for residential and commercial buildings, respectively. The baseline codes are the 2006 IECC (residential) and ASHRAE Standard 90.1-2004 (commercial) codes. National targets may be modified to reflect the Secretary of Energy’s determination of the maximum reduction of energy use that is cost-effective on a life-cycle basis or if successor building codes provide greater reductions.

Within one year of the establishment of a national building code, each state is required to certify that it has either adopted the national code or updated its own building codes to meet or exceed the national target, or certify that local governments representing at least 80 percent of the State’s urban population have either adopted the national code or modified their own codes to meet the target. In states and local governments that do not provide certification, the national building code will apply.

States and/or local governments will be required to demonstrate compliance within two years of adoption of a new code; compliance is achieved if at least 90 percent of new and substantially renovated building space in the preceding year meets the code. For the first seven years after enactment, states may instead demonstrate that they have been making “significant progress” toward compliance by developing a plan for enforcement, taking steps to implement that plan, maintaining funding for enforcement, and demonstrating at least 50 percent of new and renovated buildings meet the code.

In short, ACELA's requirements are lower, and the states have longer to comply.  However, the ACELA does not do what I would have liked to have seen--a true cooperative Federalism model in which the Federal government sets the energy efficiency targets, and allows the states to create codes to meet them, much like the State Implementation Plans in the Clean Air Act. 

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I 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.    

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The great people over at Treehugger had some great additional thoughts on Friday's Waxman-Markey post.

Particularly interesting was Lloyd Alter's insight from his dealing with uniform building codes:

When I practiced architecture, I had to work with a building code that covered a territory that ranged from temperate at the south to arctic at the north, and quite capably handled it with maps and tables that adjusted requirements for degree-days, snow loads and other climactic differences, it's not that difficult.
 

Appendix writers, sharpen your pencils.  Alternatively, the building code could be a performance based code, which sets the standard and allows states and local governments to meet it in different ways. 

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On Earth Day, Mayor Bloomberg announced sweeping new green building regulations for New York City.  The proposed regulations would: 

• mandate energy audits in buildings larger than 50,000 square feet once every decade and require retrofits that are deemed cost effective, which is defined as a five-year payback period
• require property owners to benchmark the energy usage of their buildings
• mandate commercial lighting upgrades by 2022
• require compliance with a new energy code after completing a building renovation of any size

On May 12, the Massachusetts Board of Building Regulations and Standards (BBRS) approved Appendix 120AA as an optional appendix to the 7th edition Massachusetts Building Code 780 CMR. According to the BBRS,

the stretch code would be incorporated into the Massachusetts building code as an optional appendix. Towns and cities in Massachusetts would then be able to choose between remaining on the base energy code or adopting the stretch energy code as their mandatory energy code requirement.

Opponents argue

The “stretch code”...will end decades of statewide uniformity under the existing building code and will be in direct conflict with the goals of the statewide code — to provide uniformity, predictability and clarity.

These sweeping regulations are interesting from a couple of different perspectives.  First, they indicate a political willingness to impose stricter--and potentially costlier--regulations on developers, despite the down real estate market.  Second, they indicate a shift in policy making from independent green regulatins to adaptations of the building and energy codes.  It will be interesting to see how these schemes are implemented, and what effect they have on development in these localities. 

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Last week was a bit quiet here at Green Building Law Blog as I attended a conference in Atlanta hosted by the EPA on greening building codes.  The invitees to the conference were code officials, EPA personnel, developers, architects, non-governmental organization reps, a couple of attorneys and assorted other municipal and state officials.  It was a great group and a well facilitated conference.

The first day of the conference was devoted to identifying barriers to greening the building codes.  The barriers fell into 7 categories:

1. Procedural--lack of communication among stakeholders, lack of integration among agencies and codes (plumbing codes, etc.), no clear process for obtaining variances to statewide building codes, overextended staff resources, lack of enforcement of current codes

2. Capacity--Lack of experts in green building amongst code staff

3. Education/Perception--Green seen as elitist, expensive, difficult; Lack of certification and training amongst code officials, lack of examples

4. Legal--Standards of proof higher for green buildings than standard buildings for approvals, Federal and state preemption, conflicts with other laws (fire code, historical preservation), LEED not designed to be integrated into codes, risk of liability

5. Technical/Research--Lack of performance data on green systems and technologies, lack of definitions of green terminology, lack of clearinghouse of information on best practices, inaccessibility of financial data and cost/benefit analyses

6. Political--Partisanship, status quo interests, unions, property rights advocates, lack of political champion for greening codes

7. Financial--budget shortfalls (especially because of recession), jurisdiction for funding (state vs. local allocation) for code changes

Some of these barriers are more perception than reality, but perception is reality when it comes to making political change.  In addition, most are very real---code changes require policial will and resources, and good communication among stakeholders both within the government and with the regulated community.

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I have been discussing the difficulties of greening building codes with municipal officials nationwide this week.  There are really two problems: 1) legacy codes which inhibit green building practices; and 2) state and federal laws which prevent municipalities from upgrading their building codes.

The East Hampton Star had an article about the problems of legacy codes. The town required asphalt paving, where developers wanted to use greener pervious paving materials.  They had to convince the township to allow the alternate material.  This causes delays and added cost to the building process.

Many municipalities and states (including my very own Philadelphia and Pennsylvania) are looking to revise their building codes to allow for greener practices, and in some cases (like California) require them.  However, many municipalities face state-wide mandated building codes which preempt their efforts to enhance their building codes.  In other localities, there is a resistance to implementing a new mandatory greener code. 

This week I heard from two sources about an interesting way to thread this needle.  Local governments are enacting "voluntary" appendices to their building codes outlining approved green practices.  This has many benefits.  First, it educates builders and municipal officials in green building practices.  Second, it builds municipal capacity slowly to understand, evaluate and approve green practices.  Third, it solves the East Hampton problem by having pre-approved green alternatives to the standard building code. 

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The Department of Energy has a map which identifies the Building Code Energy Codes for each state, along with the ASHRAE energy code standard they are currently using. 

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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.   

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