Synopsis

Trade groups for landlords, hotels, and developers sued the City and County of Denver and the State of Colorado, arguing that state and local rules to reduce building energy use and emissions are preempted by the federal Energy Policy and Conservation Act (EPCA). 

Why It Matters for Public Health

Climate change is widely accepted as the greatest threat to global public health, and any policy that reduces the extent of climate change helps protect health. Further, actions that reduce energy use and greenhouse-gas emissions also reduce indoor and local air pollution. For example, recent studies show that gas stoves create harmful levels of nitrogen dioxide and benzene inside the home, comparable to secondhand smoke. At the same time, efficiency measures such as improving a building’s sealing and ventilation systems can prevent mold or pest infestations and improve temperature control.

The policies challenged in this case, called “Building Performance Standards,” are particularly important for climate and health. Building performance standards cap certain large buildings’ energy use (or, at the owner’s option, greenhouse-gas emissions), then reduce that cap over a period of years.  Building performance standards are one of the few types of green-building regulation that apply to buildings as they are now, rather than being limited to new buildings, renovations, or appliance replacements. As a result, they are crucial to addressing the quality and emissions of existing buildings.

Background

EPCA is a federal law that, among other things, creates energy-efficiency standards for certain appliances and allows the U.S. Department of Energy to amend those standards and create others. EPCA also preempts state and local regulations “concerning the energy efficiency, energy use, or water use” of an appliance that is covered by EPCA. Generally speaking, EPCA preemption has been considered to preclude only state or local regulations that try to set energy efficiency standards for EPCA-covered appliances. However, in California Restaurant Association v. City of Berkeley, the Ninth Circuit held that EPCA also preempts certain kinds of regulations that are not efficiency standards, but which have the effect of preventing the use of EPCA-covered appliances.

The plaintiffs in this case allege that the Denver and Colorado regulations are preempted by the EPCA as interpreted by the Ninth Circuit. (Importantly, Colorado is not in the Ninth Circuit, and therefore the federal court that will hear this case is not required to follow California Restaurant Association.) Specifically, they have three related arguments:

• That the Denver and Colorado regulations “directly regulate[]” EPCA-covered appliances by placing a cap on the energy use or carbon emissions of certain buildings.
• That EPCA requires the Denver and Colorado regulations to “maintain[] neutrality on energy sources,” which the regulations do not do because of their option for reducing carbon emissions instead of building energy use.
• That it will be impossible to comply with the building performance standards without replacing their gas appliances, implying that the regulations effectively prevent the use of some gas appliances in some buildings.

Litigation Status (Open)

The plaintiffs filed their complaint on April 22. The State of Colorado filed a motion to dismiss the claims against them, based on standing and ripeness, on June 21. The City and County of Denver filed a motion to dismiss on June 24. Also on June 24, a group of local and national organizations moved to intervene in the case as defendants and filed their own proposed motion to dismiss arguing that the statute of limitations on the challenge has already run.

The plaintiffs filed their responses to all three motions to dismiss on August 9, and briefing on the motions will likely conclude on September 12 with the defendants' replies.