Federal Building Codes?: Proposed Federal Legislation Could Require Changes to Energy Efficiency Provisions of City and State Building Codes

This post was authored by Lloyd Chee & Clayton GrahamThe latest version of a house bill entitled America’s Clean Energy Security Act of 2009 (H.R. 2454—click here for full text of the May 15th Version), which was passed by the House Energy and Commerce Committee on May 21, contains provisions that could potentially affect building codes in every city and county in Washington State. Section 201 of the proposed legislation authorizes the Secretary of the Department of Energy to develop a “national energy efficiency building code.” The Bill sets specific efficiency targets, and requires the Secretary to consider a number of existing codes in formulating the national Code, including commercial building standards proposed by theAmerican Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) and also standards and practices for “cool roofs” (a term curiously not defined by the proposed legislation). Once the energy efficiency building code is adopted, states would have one year to either adopt the national code or equivalent standards into their building codes, or document adoption by local governments representing at least 80 percent of the state’s urban population. States that fail to make these changes to their building codes could lose emission allowances and other federal funding. In these states, the national code would automatically apply to buildings in the relevant (local) jurisdictions, and the Secretary would have direct enforcement authority over property owners and builders. The transfer or occupancy of a building that was constructed out of compliance with the national code would be a violation of the Act, for which the Secretary could assess civil penalties (each day of occupancy would be a separate violation of the Act). The Act would also provide jurisdiction to Federal district courts to enjoin any violation of the Act.If this bill is passed, it could affect the design of commercial projects across the country, and some industry groups have decried the legislation as unfriendly to developers. In a published statement, NAIOP—the Commercial Real Estate Development Association—has said that “[t]he provisions as written would create significant financial barriers to the construction of new buildings.” Landowners and developers alike will be closely watching this bill as it makes its way through Congress.