Shari Shapiro, J.D., LEED AP Who Should Regulate?  Federalism and Conflict In Regulation of Green Buildings
The Federalism Question <ul><li>&quot;But as the plan of the [Constitutional] convention aims only at a partial union or c...
Change In Legal Trends <ul><li>Historically, environmental regulations has relied on national “command and control” approa...
Green Building Regulations Are On A Meteoric Rise <ul><li>Green practices are being incorporated into state and local zoni...
Recent Green Building Codes Enacted <ul><li>July 17, 2008—California adopts green building code for all new construction s...
Albuquerque Adopts Green Building Code <ul><li>Adopted in 2007, set to take effect in June of 2008, the Albuquerque Energy...
Conflict Between Local & Federal Regulation–  AHRI v. City of Albuquerque <ul><li>July 3, 2008--Air Conditioning, Heating ...
EPCA <ul><li>Energy Policy and Conservation Act of 1975 (“EPCA”), 42 U.S.C. 6201,  et seq. , as amended by the National Ap...
Court Grants Preliminary Injunction <ul><li>October 3, 2008, Chief District Court Judge Martha Vazquez granted the prelimi...
Should the federal government set uniform national high performance building standards?  <ul><li>Pros </li></ul><ul><ul><l...
Should green building regulation be left to states and local governments?  <ul><li>Pros </li></ul><ul><ul><li>Building and...
What will new administration bring?  <ul><li>Cap-and-trade </li></ul><ul><li>Making all new buildings carbon neutral, or p...
State Preemption <ul><li>In 2004, Pennsylvania adopted the Uniform Construction Code (UCC), a common building code for all...
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Federalism and Conflict In Regulation of Green Buildings: Who Should Regulate?

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Federalism and Conflict In Regulation of Green Buildings: Who Should Regulate?

  1. 1. Shari Shapiro, J.D., LEED AP Who Should Regulate? Federalism and Conflict In Regulation of Green Buildings
  2. 2. The Federalism Question <ul><li>&quot;But as the plan of the [Constitutional] convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States.“ </li></ul><ul><li>-- Alexander Hamilton </li></ul>
  3. 3. Change In Legal Trends <ul><li>Historically, environmental regulations has relied on national “command and control” approach to compliance </li></ul><ul><li>Federal environmental enforcement and stewardship in decline since 2000. </li></ul><ul><li>Trend is reversing due to: </li></ul><ul><ul><li>2008 election cycle </li></ul></ul><ul><ul><li>Public awareness and concern about Global Warming </li></ul></ul><ul><ul><li>Energy price spike </li></ul></ul><ul><ul><li>State and Local Action </li></ul></ul>
  4. 4. Green Building Regulations Are On A Meteoric Rise <ul><li>Green practices are being incorporated into state and local zoning and building codes and ordinances </li></ul><ul><ul><li>14 percent of U.S. cities with populations of more than 50,000 have green building programs </li></ul></ul><ul><ul><li>The number of counties with green building programs has grown by nearly 400 percent since 2003 </li></ul></ul><ul><li>Federal statutes require federal agencies to procure recycled material, reduce energy consumption and prevent pollution. </li></ul>
  5. 5. Recent Green Building Codes Enacted <ul><li>July 17, 2008—California adopts green building code for all new construction statewide </li></ul><ul><ul><li>Targets for energy efficiency, water consumption, dual plumbing systems for potable and recyclable water, diversion of construction waste from landfills and use of environmentally sensitive materials in construction and design </li></ul></ul><ul><li>2007--Boston, Washington, San Francisco, Los Angeles mandate green building requirements for new construction above a specified square footage </li></ul>
  6. 6. Albuquerque Adopts Green Building Code <ul><li>Adopted in 2007, set to take effect in June of 2008, the Albuquerque Energy Conservation Code was part of the City’s attempt to significantly reduce carbon dioxide and green house gas emissions. </li></ul><ul><li>Two volumes-- Volume I applied to new construction, addition or renovation of commercial and multi-family residential buildings. Volume II applied to new construction, addition or renovation of one- and two-family detached dwellings and townhouses. </li></ul><ul><li>Both volumes provided a menu of options for reduction of energy use. In both volumes, at least one of the options required energy efficiency requirements for air conditioners, furnaces, heat pumps and water heaters that were more stringent than those required by EPCA as amended. </li></ul>
  7. 7. Conflict Between Local & Federal Regulation– AHRI v. City of Albuquerque <ul><li>July 3, 2008--Air Conditioning, Heating and Refrigeration Institute and other HVAC trade organizations, contractors and distributors sued the City of Albuquerque to stop components of the city's high performance building code from taking effect. </li></ul><ul><li>Argue that the Energy Policy and Conservation Act of 1975 (“EPCA”), 42 U.S.C. 6201, et seq. , preempt the building code's provisions related to energy efficiency of HVAC products. </li></ul>
  8. 8. EPCA <ul><li>Energy Policy and Conservation Act of 1975 (“EPCA”), 42 U.S.C. 6201, et seq. , as amended by the National Appliance Energy Conservation Action (“NAECA”), Pub.L. No. 100-102 (1987), and the Energy Policy Act of 1992 (“EPACT”), 42 U.S.C. § 6311-17 </li></ul><ul><li>Together, these laws establish nationwide standards for the performance of HVAC equipment, and contain a preemption provision that “prohibits state regulation ‘concerning’ the energy efficiency, energy use or water use of any covered product with limited exceptions.” </li></ul>
  9. 9. Court Grants Preliminary Injunction <ul><li>October 3, 2008, Chief District Court Judge Martha Vazquez granted the preliminary injunction, and laid out her opinion that the Albuquerque Code was indeed preempted. </li></ul><ul><ul><li>“ There is no doubt that Congress intended to preempt state regulation of the energy efficiency of certain building appliances in order to have uniform, express, national energy efficiency standards.” </li></ul></ul><ul><ul><li>“ At the time the Code was drafted the Green Building Manager, by his own admission, was unaware of federal statutes governing the energy efficiency of HVAC products and water heaters and the City attorneys who reviewed the Code did not raise the preemption issue.” </li></ul></ul>
  10. 10. Should the federal government set uniform national high performance building standards? <ul><li>Pros </li></ul><ul><ul><li>National damage from greenhouse gases </li></ul></ul><ul><ul><li>Single Standard </li></ul></ul><ul><ul><li>No Cross-Border Conflict </li></ul></ul><ul><ul><li>Fewer laws necessary </li></ul></ul><ul><li>Cons </li></ul><ul><ul><li>Green building regulations already enacted </li></ul></ul><ul><ul><li>Building and land use historically local </li></ul></ul><ul><ul><li>Compromises may result in less stringent standards </li></ul></ul>
  11. 11. Should green building regulation be left to states and local governments? <ul><li>Pros </li></ul><ul><ul><li>Building and land use regulation historically local </li></ul></ul><ul><ul><li>Local administration </li></ul></ul><ul><ul><li>Laws can vary to meet local requirements </li></ul></ul><ul><ul><li>Greater experimentation </li></ul></ul><ul><ul><li>Comparative ease in passing laws may lead to more stringent standards </li></ul></ul><ul><li>Cons </li></ul><ul><ul><li>Variable standards </li></ul></ul><ul><ul><li>Cross-border conflicts </li></ul></ul><ul><ul><li>“ Race to the bottom” </li></ul></ul><ul><ul><li>Lower cost legal challenges </li></ul></ul>
  12. 12. What will new administration bring? <ul><li>Cap-and-trade </li></ul><ul><li>Making all new buildings carbon neutral, or produce zero emissions, by 2030. </li></ul><ul><li>Establish a national goal of improving new building efficiency by 50 percent and existing building efficiency by 25 percent over the next decade to help us meet the 2030 goal. </li></ul>
  13. 13. State Preemption <ul><li>In 2004, Pennsylvania adopted the Uniform Construction Code (UCC), a common building code for all municipalities in Pennsylvania. </li></ul><ul><li>The UCC in itself does not prevent local governments from passing green building regulations related to the building code as long as: </li></ul><ul><ul><li>the requirements are equal to or more stringent than the UCC, </li></ul></ul><ul><ul><li>the local government secures approval from Pennsylvania’s Department of Labor and Industry, </li></ul></ul><ul><ul><li>the local government provides appropriate public notice </li></ul></ul><ul><li>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. </li></ul>

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