## Facts

- Washington adopted 2009 amendments to its residential energy code requiring new homes to meet overall energy-efficiency “targets” through a menu of optional “credits.”
- Builders could comply through multiple paths, including building-envelope measures (e.g., insulation, windows, sealing) and equipment choices.
- Some available compliance options used appliances or HVAC equipment with efficiencies above federal minimum standards, but compliance was also achievable using products meeting federal standards combined with non-appliance measures.
- The Building Industry Association of Washington (BIAW) sued the Washington State Building Code Council (WSBCC), alleging the code was expressly preempted by the Energy Policy and Conservation Act (EPCA), which generally preempts state regulation of the energy efficiency, energy use, or water use of federally “covered products.”
- BIAW argued the credit/target structure economically and practically pushed builders to install above-standard covered products, thereby “effectively requiring” higher efficiencies than federal standards allow states to mandate.
- WSBCC and intervenor defendants argued the code was a permissible building-energy code for new construction and fell within EPCA’s building-code exemption in 42 U.S.C. § 6297(f).

## Issues

1. Whether EPCA expressly preempted Washington’s 2009 residential energy code because it regulated covered products’ energy efficiency or effectively required efficiencies above federal standards.
2. Whether the code qualified for EPCA’s building-code safe harbor under 42 U.S.C. § 6297(f), including the requirement that a building code not “require” covered products to exceed federal standards either expressly or in practical effect and that it provide alternative means of compliance.

## Decision

- The court denied BIAW’s motion for summary judgment.
- The court granted WSBCC’s and intervenor defendants’ cross-motions for summary judgment.
- The court held the 2009 residential energy code was not preempted because it qualified for EPCA’s § 6297(f) building-code exemption.
- The court concluded the code did not expressly require, nor effectively compel, installation of above-federal-standard covered products because builders retained realistic compliance options using federally compliant products combined with other design measures.

## Legal Principles

- EPCA expressly preempts state regulations concerning the energy efficiency, energy use, or water use of covered products when federal standards are in effect, but it includes a specific exemption for qualifying state and local building-energy codes for new construction.  
- A state building-energy code falls within § 6297(f) if it satisfies the statutory conditions, including providing alternative means of compliance and not requiring covered products to exceed federal minimum standards either directly or in practical effect.
- A code “effectively requires” above-standard covered products only when, in practical terms, compliance cannot realistically be achieved without installing covered products exceeding federal standards; economic preference for one compliance option does not alone establish a prohibited “requirement.”
- Performance-based energy targets directed at overall building energy use may qualify under § 6297(f) when they do not operate as de facto appliance-efficiency standards and leave available compliance paths that use federally compliant products.

## Conclusion

The district court upheld Washington’s 2009 performance-based residential energy code against an EPCA express-preemption challenge, ruling that the code fit within EPCA’s building-code safe harbor because it regulated overall building performance and left builders genuine compliance alternatives that did not require above-federal-standard covered products.


Building Indus. Ass'n of Wash. v. Wash. State Bldg. Code Council, No. C10-0506RSL, 2011 WL 485895 (W.D. Wash. Feb. 4, 2011)