Building performance standards, an increasingly popular policy among decarbonization-minded cities and states, are very likely safe from lawsuits arguing such rules are preempted by a federal energy law.
That’s according to Daniel Carpenter-Gold, staff attorney at the Public Health Law Center, speaking at a July webinar hosted by the Institute for Market Transformation. Building performance standards require existing buildings to reduce energy use or greenhouse gas emissions over time.
Concerns about the legal standing of local decarbonization policies rippled across the U.S. in the wake of a federal appeals court’s decision to overturn Berkeley, California’s first-in-the-nation ban on natural gas hookups in new construction. The judges agreed with the California Restaurant Association, which sued the city, that Berkeley’s rule was preempted by the federal Energy Policy and Conservation Act. EPCA preempts state and local standards on appliances that could also have federal standards, Carpenter-Gold explained. The Berkeley decision said the city’s ordinance effectively banned gas-powered appliances by cutting off their energy source, he said.
The same argument is unlikely to knock down building performance standards nationwide, he said. Carpenter-Gold cited numerous reasons for his confidence. Firstly, the Berkeley decision only applies in the Ninth Circuit, which comprises Alaska, Arizona, California, Hawai’i, Idaho, Montana, Nevada, Oregon, Washington, Guam and the Northern Mariana Islands. The Ninth Circuit’s decision is a radical reading of EPCA preemption that other courts may not choose to agree with, Carpenter-Gold said.
“The federal government doesn't have authority through EPCA to create a [building performance standard] or to regulate who can have gas stoves,” he said. “Therefore, most general understanding is that the state and local governments retain that authority.”
Building performance standards also typically have safeguards against the argument that they effectively ban gas-powered appliances, Carpenter-Gold said. Those safeguards include exemptions for cases where buildings can’t effectively reduce energy use or emissions; they also include alternative compliance payments, which allow building owners to make payments rather than comply with the standards.
To defend against potential EPCA preemption challenges, “there should be some policy built into a building performance standard that ensures that you’re not trying to completely eliminate the use of gas appliances,” Carpenter-Gold said. He caveated that statement by encouraging state and local governments not to weaken the policy’s goals when building in those safeguards. Since building performance standards apply to already existing buildings, local and state leaders can increase or decrease the policy’s stringency as the legal landscape requires, Carpenter-Gold said.
Four states and nine localities have adopted building performance standards, according to IMT. The organization leads the National Building Performance Standards Coalition, a group of states and local governments committed to implementing such laws. Right now, IMT is only aware of three pending lawsuits against building performance standards, said Cliff Majersik, senior adviser at IMT.
“The main takeaway is that jurisdictions should go full speed ahead in developing, adopting and implementing building performance standards,” Majersik said at the webinar.
