Toward Better and More Uniform Building Efficiency Codes
By Thomas Hutton
INTRODUCTION
“[T]he federal system reinforces [a] delegation of responsibility to the states because, as a quintessential state function, building codes lie outside the province of federal authority.”
“Unfortunately, owners and operators of new residential and commercial buildings in roughly half the states are not assured the benefits of up-to-date minimum energy standards because their states have either no codes at all or outdated standards.”
- Kate McQueen, Executive Director, Department of Energy Building Codes Assistance Project
Both passages accurately reflect the current thinking and law concerning building efficiency regulation. Commentators agree that the settled role of the federal government is limited to coaxing state governments to adopt current standards. This has led to very different experiences among the states: California has demonstrated a deep commitment to energy efficiency, implementing efficiency regulation years before the federal government, and exceeding the federal standards as long as such standards have existed. In Michigan, where the issue has been perennially controversial, a judge finally lifted an injunction on the state building efficiency code in 2008; after years of legal wrangling and calls for legislative repeal, the legality of the 2003 Michigan Uniform Energy Code was vindicated, and the regulations were finally put into effect.
But rising concerns about energy independence and global warming have led to calls for heightened standards at a national level, and forthcoming climate change-related legislation will likely contain efforts in that vein. Should Congress intervene, and if so, how should it treat this area of traditional state regulation, given the decidedly national and international scope of the problem and the diffuse nature of the potential benefits? Any attempt to regulate at the federal level will evoke a familiar but dynamic question about the relationship between federal regulation and state law. Should Congress attempt to create a federal floor on building efficiency? Is there a hidden opportunity for the building industry to secure a preemptive federal ceiling, stymieing state and local regulatory innovation?
This article will consider the ways federal legislation can approach building efficiency codes for maximum impact. If Congress is seduced by the cost-effectiveness of improved building efficiency codes, it may seek ways to circumvent the slow and sometimes troubled state code adoption process. I am interested in exploring the ways it could do just that. I will first argue that improving building efficiency is an attractive tool for reaching national energy efficiency and carbon emissions goals, and second, consider how our federalist structure of government can accommodate federal involvement in the business of building efficiency regulation. I will then consider four potential federal policy routes to improving building efficiency nationwide.
“[T]he federal system reinforces [a] delegation of responsibility to the states because, as a quintessential state function, building codes lie outside the province of federal authority.”
“Unfortunately, owners and operators of new residential and commercial buildings in roughly half the states are not assured the benefits of up-to-date minimum energy standards because their states have either no codes at all or outdated standards.”
- Kate McQueen, Executive Director, Department of Energy Building Codes Assistance Project
Both passages accurately reflect the current thinking and law concerning building efficiency regulation. Commentators agree that the settled role of the federal government is limited to coaxing state governments to adopt current standards. This has led to very different experiences among the states: California has demonstrated a deep commitment to energy efficiency, implementing efficiency regulation years before the federal government, and exceeding the federal standards as long as such standards have existed. In Michigan, where the issue has been perennially controversial, a judge finally lifted an injunction on the state building efficiency code in 2008; after years of legal wrangling and calls for legislative repeal, the legality of the 2003 Michigan Uniform Energy Code was vindicated, and the regulations were finally put into effect.
But rising concerns about energy independence and global warming have led to calls for heightened standards at a national level, and forthcoming climate change-related legislation will likely contain efforts in that vein. Should Congress intervene, and if so, how should it treat this area of traditional state regulation, given the decidedly national and international scope of the problem and the diffuse nature of the potential benefits? Any attempt to regulate at the federal level will evoke a familiar but dynamic question about the relationship between federal regulation and state law. Should Congress attempt to create a federal floor on building efficiency? Is there a hidden opportunity for the building industry to secure a preemptive federal ceiling, stymieing state and local regulatory innovation?
This article will consider the ways federal legislation can approach building efficiency codes for maximum impact. If Congress is seduced by the cost-effectiveness of improved building efficiency codes, it may seek ways to circumvent the slow and sometimes troubled state code adoption process. I am interested in exploring the ways it could do just that. I will first argue that improving building efficiency is an attractive tool for reaching national energy efficiency and carbon emissions goals, and second, consider how our federalist structure of government can accommodate federal involvement in the business of building efficiency regulation. I will then consider four potential federal policy routes to improving building efficiency nationwide.
