February 9, 2011
Washington State Energy Efficiency Victory Helps Homeowners Save Money and Cuts Pollution at the Same Time—A Commentary by Katherine Kennedy
The following commentary was posted on seattlepostintelligencer.com on February 9, 2011.
Washington State Energy Efficiency Victory Helps Homeowners Save Money and Cuts Pollution at the Same Time
By Katherine Kennedy
This week, a federal district court judge cleared the way for Washington State to move forward with a state building energy code for new homes that will save Washington homeowners money on their energy bills while reducing harmful air pollution from power plants at the same time. The judge rejected an industry challenge that the code ran afoul of federal law.
In 2009, Washington State adopted a new energy efficiency code for residential buildings that required a 15% reduction in energy consumption for new homes. But Washington didn't mandate any particular method for meeting this requirement. Instead, it allowed builders to comply in numerous ways. Some of these options allowed, but did not require, the use of high-efficiency heating and cooling equipment.
The approach of offering builders many options and pathways for meeting building energy efficiency goals is simple common sense. But a Washington State building trade association charged into federal district court last year, challenging the new code as preempted by the federal law which establishes national energy efficiency standards for residential and commercial products such as furnaces. This challenge came from an industry playbook that has been tried before: another trade association recently challenged a building energy code adopted by the City of Albuquerque, New Mexico, and succeeded in partially blocking that law.
The Natural Resources Defense Council entered the legal battle to defend the Washington building energy code, working closely with the excellent lawyers at Washington State Attorney General Rob McKenna's office, the environmental group Earthjustice and Washington state energy and environmental groups. Together, we mounted a full-on defense of the new code. We explained that federal law actually encourages states to adopt more efficient building codes and that Congress allows states to adopt energy codes that offer the option of using high efficiency equipment, as long as it is not required and there are other compliance options. Through evidence provided by nationally recognized building energy experts and Washington state builders who understand that energy efficiency increases the value of homes, we argued that the Washington code is consistent with federal law.
On February 7, 2010, the judge threw out the trade association's challenge, finding that the Washington building energy code met the requirements of the federal law. In legalese, the court found that the trade association had failed to show either "that the Washington Code requires use of products with higher efficiency than mandated by federal standards as the only way to comply with the Code" or that the code "'functionally' or 'effectively' requires use of products that exceed federal efficiency standards'." In plain language, that's good news for Washington state homeowners' pockets and for all state residents who like breathing cleaner air.
Moving forward, NRDC is committed to continuing to assist and support states that adopt and implement strong energy efficiency codes. Under the 2008 American Recovery and Reinvestment Act, each state that accepted federal stimulus funds has pledged to adopt a stronger building energy code. Thanks to yesterday's decision, every state that follows through on this commitment should know that the law is on their side if they push for buildings to meet strong efficiency goals. NRDC will stand by the states in their efforts to cut energy costs, curb pollution and build America's clean energy future.
Katherine Kennedy is counsel to the Air & Energy Program at the Natural Resources Defense Council, where she leads the program's legal and regulatory work on federal clean energy and global warming solutions. From 2007 to January 2010, Kennedy was Special Deputy Attorney General for Environmental Protection in the New York State Attorney General's Office, where she directed the Environmental Protection Bureau. Prior to that, Kennedy directed the Northeast Energy Program at NRDC. Kennedy is a visiting clinical instructor at Yale Law School, where she teaches the Yale Environmental Protection Clinic. She has also taught as an adjunct professor at Fordham University School of Law. Kennedy is a magna cum laude graduate of Harvard University and Harvard Law School.