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Building Industry Association v. Washington State Building Code

June 25, 2012

BUILDING INDUSTRY ASSOCIATION OF WASHINGTON; AIR AMERICA INC.; BOA CONSTRUCTION CO.; COMPLETE DESIGN INC.; AIREFCO INC.; CVH INC.; ENTEK CORP.; FAMILY HOME INVESTMENTS CORP.; SADLER CONSTRUCTION INC.; TRACY CONSTRUCTION CO., PLAINTIFFS-APPELLANTS,
v.
WASHINGTON STATE BUILDING CODE COUNCIL, DEFENDANT-APPELLEE, NW ENERGY COALITION; SIERRA CLUB; WASHINGTON ENVIRONMENTAL COUNCIL; NATURAL RESOURCES DEFENSE COUNCIL, INTERVENOR-DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Western District of Washington Robert J. Bryan, Senior District Judge, Presiding D.C. No. 3:10-cv-05373-RJB

The opinion of the court was delivered by: Schroeder, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted February 9, 2012-Seattle, Washington

Before: Mary M. Schroeder and Ronald M. Gould, Circuit Judges, and Ralph R. Beistline, Chief District Judge.*fn1

Opinion by Judge Schroeder

OPINION

The Energy Policy and Conservation Act of 1975 ("EPCA"), 42 U.S.C. § 6295 et seq., as amended, establishes nationwide energy efficiency standards for certain residential home appliances, and expressly preempts state standards requiring greater efficiency than the federal standards. It nonetheless exempts from preemption state building codes promoting energy efficiency, so long as those codes meet certain statutory conditions. § 6297(f)(3).

This case is a challenge to the State of Washington's Building Code, see Wash. Admin. Code § 51-11-0100 et seq., brought by the Building Industry Association of Washington ("BIAW"), along with individual builders and contractors. The impetus for this challenge is the State's 2009 requirement that new building construction meet heightened energy conservation goals. This is the first case at the appellate level to consider EPCA's preemption-exemption provision. Plaintiffs-Appellants ("Plaintiffs") argue that the Building Code does not satisfy EPCA's conditions for exemption. The district court, however, held that Washington had satisfied EPCA's conditions, and therefore was not preempted. We affirm.

To escape preemption, a state's building code must satisfy the seven conditions codified in 42 U.S.C. § 6297(f)(3). The two at issue here are § 6297(f)(3)(B) and (C). Under subsection (B), a state's building code cannot require a covered product-energy consuming fixtures such as water heaters and refrigerators-to be more efficient than the standards established by the United States Department of Energy ("DOE"). The State of Washington's Building Code requires builders to reduce a building's energy use by a certain amount, and provides a number of options from which a builder may choose how to meet that requirement. Some of the options involve the installation of products that have an efficiency that exceeds the federal standards. These options, according to the builders, also happen to be cheaper than the other options. The builders contend that they are therefore being "required" to use products that exceed the federal standards, in violation of subsection (B). We hold that a builder is not "required" to select an option, within the meaning of subsection (B), simply because there is an economic incentive to do so. Section 6297(f)(3)(B) is violated when the code requires a builder, as a matter of law, to select a particular product or option. The Supreme Court has recognized this to be what a requirement entails. See Bates v. Dow Agrosciences LLC, 544 U.S. 431, 445 (2005) (rejecting a preemption challenge, and holding that the term "requirement" in a different statute means "a rule of law that must be obeyed"). Plaintiffs in this case are thus not "required" to choose the less expensive, more efficient option.

Plaintiffs' challenge under § 6297(f)(3)(C) of the federal law is more factual in nature. Subsection (C) contemplates that building codes will allow builders to meet energy efficiency objectives through a system of credits for implementing solutions that save on either energy use or energy cost. It provides that a building code must grant credits on the basis of how much each option reduces energy use or cost, without favoring particular products or methods. It requires that the credits be allowed on the basis of "one-for-one equivalent energy use or equivalent cost." Plaintiffs argue that the Building Code here does not satisfy this condition, because they contend its credits are not granted on a one-for-one equivalent energy use basis. Their argument relies solely upon a BIAW member's declaration. The district court rejected the declaration after finding that the witness was not qualified as an expert to challenge the state's calculations of equivalent energy use savings produced by using particular products or building methods. We hold there was no abuse of discretion in disallowing that evidence.

The evidence that is in the record supports the district court's conclusion that the state-assigned credit values satisfy the "one-for-one equivalent energy use" requirement of subsection (C). The district court admitted the State's expert testimony and documentation because the court found the State's computer models for assigning credit values used sound data and methodology, and that they were reliably applied. See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). The district court properly held that Plaintiffs could not show that the Building Code violated subsection (C).

Plaintiffs do correctly note that even where the State gives two options the same credit, there may not be an exact match between the energy savings produced by each option. This is an inevitable result, however, when comparing methods that use different products to obtain an energy conservation goal. Some approximation is necessarily included in the concept of equivalence, as Congress and the district court have recognized. See, e.g., S. Rep. No. 100-6 at 10 (1987) ("The Committee recognizes that in some cases, exact equivalency is not possible.").

We therefore hold that the Washington Building Code satisfies the conditions Congress established for enforcement of state and local building codes consistent with federal energy law and we affirm the judgment of the district court in favor of the State.

BACKGROUND

The Federal Regulatory Framework

Congress enacted EPCA as a comprehensive federal regime regulating energy and water conservation standards for certain consumer appliances. Congress gave DOE primary responsibility for promulgating regulations prescribing a "minimum level of energy efficiency or a maximum quantity of energy use" for the covered consumer products. 42 U.S.C. § 6291(6)(A); see § 6295.

EPCA defines a "consumer product," in relevant part, as "any article . . . of a type-(A) which in operation consumes, or is designed to consume, energy or, with respect to shower-heads, faucets, water closets, and urinals, water; and (B) which, to any significant extent, is distributed in commerce for personal use or consumption by individuals . . . ." § 6291(1). Consumer products covered by EPCA's energy-efficiency provisions are identified in § 6292, and include durable goods such as refrigerators, air conditioners, water heaters, furnaces, dishwashers, clothes washers and driers, kitchen ranges and ovens, faucets, and showerheads. § 6292(a). These covered consumer products are typically installed in new home construction.

As initially enacted in 1975, EPCA provided that federal energy efficiency standards be established for covered products, and it preempted all state "efficiency standard[s] or similar requirement[s]" for covered products. Energy Policy and Conservation Act of 1975, Pub. L. No. 94-163, sec. 327, 89 Stat. 871, 926-27. Congress modified the blanket preemption in 1987, when it amended EPCA to carve out an explicit exemption from preemption for certain efficiency standards in state and local building codes. See National Appliance Energy Conservation Act of 1987, Pub. L. No. 100-12, sec. 7, 101 Stat. 103, 117-22 (codified as amended at 42 U.S.C. § 6297). EPCA thus now expressly exempts from preemption any reg- ulation or other requirement contained in a state or local building code for new construction concerning the energy efficiency or energy use of covered products, but only if the provisions of the code satisfy seven statutory conditions. 42 U.S.C. § 6297(f)(3). The conditions are as follows:

(A) The code permits a builder to meet an energy consumption or conservation objective for a building by selecting items whose combined ...


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