## Facts

- Congress enacted the Energy Policy and Conservation Act (EPCA) to set federal energy-efficiency standards for certain “covered products” and to expressly preempt state regulations concerning those products’ energy efficiency or use.
- EPCA contains a statutory exemption permitting state and local building codes for new construction if specified conditions are met, including that the code not “require” covered products exceeding federal standards and that any credits be proportional to energy savings.
- Washington delegated authority to the Washington State Building Code Council to adopt and amend statewide building and energy codes.
- In 2009, the Council adopted amendments requiring new construction to achieve specified reductions in energy use relative to a baseline.
- The amendments used a performance/credit system: builders could choose from multiple measures (e.g., building-envelope improvements, equipment choices), each assigned credits reflecting estimated energy savings, and could combine measures to reach the required performance target.
- Some compliance options included using appliances or equipment exceeding federal minimum efficiency levels, but the code did not mandate any particular product or measure.
- The Building Industry Association of Washington and others sued for declaratory and injunctive relief, asserting the amendments were expressly preempted by EPCA because the credit structure effectively forced use of above-federal covered products and allegedly awarded credits not proportional to energy savings.
- The district court granted summary judgment to the Council, finding the code satisfied EPCA’s building-code exemption; the plaintiffs appealed.

## Issues

1. Whether Washington’s 2009 energy code amendments were expressly preempted by EPCA as state standards regulating the energy efficiency or use of federally covered products.
2. Whether the amendments qualified for EPCA’s building-code exemption because they did not “require” covered products exceeding federal standards and assigned credits in proportion to energy savings.

## Decision

- The Ninth Circuit affirmed summary judgment for the Washington State Building Code Council.
- The court held EPCA did not preempt the 2009 amendments because they fell within EPCA’s building-code exemption.
- The court construed “require” as a legal mandate; the code set an overall performance target and allowed compliance through multiple alternatives, including measures not involving above-federal covered products.
- The court rejected the argument that economic practicality converts optional pathways into EPCA-prohibited “requirements.”
- The court held the proportionality condition was satisfied where credits were based on modeling of average, relative energy savings and plaintiffs did not show a fundamental disconnect between credit values and energy savings.

## Legal Principles

- EPCA expressly preempts state regulations concerning the energy efficiency or energy use of covered products, subject to a statutory exemption for qualifying state and local building codes for new construction.
- For EPCA’s building-code exemption, a code does not “require” higher-efficiency covered products when it imposes a performance target but preserves meaningful alternative compliance paths that do not compel installation of above-federal products.
- Economic incentives or cost-effective compliance routes do not, without more, convert optional measures into legally compelled “requirements” under EPCA.
- EPCA’s proportionality requirement for credits is met when credit allocations bear a reasonable, evidence-based relationship to energy savings; perfect precision is not required.

## Conclusion

The Ninth Circuit upheld Washington’s performance-based 2009 energy code amendments, concluding they were not preempted by EPCA because builders retained legally sufficient alternatives to using above-federal covered products and the credit system was reasonably tied to modeled energy savings within EPCA’s building-code exemption.


Bldg. Indus. Ass'n of Wash. v. Wash. State Bldg. Code Council, 683 F.3d 1144 (9th Cir. 2012)