Can Washington Enforce a Federal Building Energy Code?

Green Building

Can Washington Enforce a Federal Building Energy Code?

I have recently received several questions related to a “federal building energy code” which requires States to adopt the 2010 version of ASHRAE Standard 90.1 by October 2013. I’ve also been asked if this supposed energy code relates to ARRA stimulus funding.

This concept of a federal building energy code is a bit convoluted, but allow me to briefly explain some important aspects of this issue:

Building regulations are a State issue. State and local governments are empowered to enact building codes as part of their police powers under the Tenth Amendment to the U.S. Constitution. That amendment has been interpreted to permit the States to enact legislation designed to protect public health, welfare, and safety. Thus, building regulation is a power reserved to States – not the federal government.

Energy codes are part of building regulation. In a broad sense, the scope of a “building energy code” falls within the rubric of building regulation. Therefore, energy codes are enacted at the State and local level and not at the level of the federal government.

The federal government is pressuring States to update their energy codes. The American Recovery and Reinvestment Act (ARRA) of 2009 distributes what is commonly referred to as “stimulus funds” to States. However, there is a catch: The ARRA language clearly declares that in order for the States to accept their respective allocations (e.g., fiscal year 2009 Recovery Act Funds totaled $3.1 billion), they must do three things:

  1. Adopt an energy code for residential buildings that meets or exceeds the 2009 IECC.
  2. Adopt an energy code for commercial buildings that meets or exceed ASHRAE 90.1-2007.
  3. Develop and implement a plan to achieve 90% compliance by 2017.
Can Washington enforce a federal building energy efficiency code? Public domain image source: Architect of the Capitol

States need money, so they are updating their codes. Indiana’s allocation of the $3.1 billion for FY 2009 was $68,621,000. In 2009, the existing 1992 Indiana Energy Conservation Code was comprised of the 1992 Model Energy Code with Indiana amendments. Indiana’s energy code ranked 49th in terms of stringency (Tennessee’s was ranked 50th). As a result, the 2010 Indiana Energy Conservation Code adopted ASHRAE 90.1-2007 with Indiana amendments for commercial buildings. (The current 2005 Indiana Residential Code with 2011 Amendments based on the 2009 IRC is considered to be as stringent as the 2009 IECC.)

Enter the Federal Building Energy Codes. On October 19, 2011 the US DOE issued a final determination that the 2010 version of Standard 90.1 would achieve over 18% greater energy efficiency in buildings compared to the 2007 version of the standard.
Language from the US DOE’s “Commercial Determinations” page states:

This final determination is being published before the 2 year deadline to file a certification for the 2007 positive determination; therefore, a state may file just one certification to address both determinations. The certification must include a demonstration that the provisions of the State’s commercial building energy code regarding energy efficiency meet or exceed Standard 90.1–2010 and be filed by July 20, 2013.

Certifications or Requests for Extension of Deadlines, with regard to Standard 90.1-2010, will be due to DOE on October 18, 2013. All states have two years to adopt Standard 90.1-2010 or upgrade their existing commercial building codes to meet or exceed its requirements.

What is a code determination? In accordance with Section 101 of EPAct 1992 amended Section of 304 of EPCA, requires :, whenever a new version of Standard 90.1 is released, the Secretary has one year to determine whether or not the revised standard will improve energy efficiency in commercial buildings. If the Secretary determines that the new version will save energy, the Secretary shall issue a formal determination and each State shall certify that it has reviewed and updated the provisions of its commercial building code within 2 years.

In this case, the Secretary issued a determination in October 2011 verifying that 90.1-2010 is over 18% more efficient than 901.-2007. Hence, the 2 year clock is ticking.

What if a State refused to respond to the code determination? The Energy Policy Act is a United States government act that has been promulgated and given the force of law. However, an Act of Congress that violates the Constitution may be declared unconstitutional by the courts.

Regardless of whether or not a federally mandated energy code is good policy, such a mandate could be interpreted as unconstitutional.

A few possible scenarios to consider:

  • If a State does not respond to the code determination and fails to comply with EPAct 1992, would the Attorney General consider filing a lawsuit against the State?
  • If a suit or penalty is enforced on a State, could that State’s Attorney General counter-suit claiming that a federal energy code is unconstitutional?

Since EPAct 1992, there have been four different final determinations regarding the ASHRAE Standard 90.1:

  • July 15, 2002, DOE issued a final determination that Standard 90.1-1999 would achieve greater energy efficiency in buildings than the 1989 edition.
  • December 30, 2008, DOE issued a final determination that Standard 90.1-2004 would achieve greater energy efficiency in buildings than the 1999 edition.
  • July 20, 2011, DOE issued a final determination that Standard 90.1-2007 would achieve greater energy efficiency in buildings than the 2004 edition.
  • October 19, 2011, DOE issued a final determination that Standard 90.1-2010 would achieve greater energy efficiency in buildings than the 2007 edition.

Considering that prior to 2010 Indiana had not updated its energy code since 1992, I am fairly certain that the State failed to comply with the final determination issued in 2002, at least. Same goes for Tennessee and probably several other States.

To the best of my knowledge, the federal government has never brought a suit against any State for non-compliance with EPAct 1992 or subsequent code determinations related to building energy efficiency.

I can only speculate and hypothesize beyond this point. I am all for an economically sensible approach to increased stringency in our energy codes. However, the notion of a federal building energy code is a murky issue. I hope this information provides some clarity.

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