Preliminary injunction stops implementation of Albuquerque Energy Conservation Code provisions
On October 3, 2008, United States District Court for the District of New Mexico entered a preliminarily injunction in The Air Conditioning, Heating and Refrigeration Institute v. City of Albuquerque, barring enforcement of key provisions of Volume I and Volume II of the Albuquerque Energy Conservation Code, and the High Performance Building Ordinance. The code would have required, “either implicitly or explicitly, the installation of appliances with energy efficiencies greater than federal standards.”
The complaint was filed on behalf of manufacturers, distributors, sellers and installers of HVAC products. Chief District Court Judge Martha Vazquez found that plaintiffs faced irreparable harm from the implementation and enforcement of the code and that plaintiffs raised sufficiently serious questions that the code provisions were preempted by Section 6297 of the Energy Policy and Conservation Act and the Energy Policy Act of 1992.
The court noted that “Section 6297 contains a ‘general rule of preemption,’ which states that, subject to certain specified exceptions, when a federal energy conservation standard is established for a covered product, ‘no State regulation concerning the energy efficiency, energy use, or water use of such covered product shall be effective with respect to such product.’ 42 U.S.C. § 6297(c).”
The court focused on the example of a homeowner who chose to install a federally-compliant furnace that did not meet the more stringent efficiency requirements of the Albuquerque code. The Court explained:
If a homeowner chooses to replace an existing furnace with a federally-compliant furnace, the homeowner must make other revisions to the home to make up the energy differential between a federally-compliant furnace and a furnace that meets the requirements of the Code. The fact that the Code imposes additional expenses if federally-compliant products are used strongly suggests that the Code ‘concerns’ the energy efficiency of covered products. Consequently, the Code, and each of the alternatives within the Code, are preempted by EPCA and EPACT unless they qualify for a preemption exception.
The Code was developed based on options identified by a “Green Ribbon Task Force” of “builders, developers, architects, unions and various companies, organizations and individuals.” Apparently, the one thing the Task Force was missing was a lawyer with knowledge of EPCA. The court noted that when the Code was adopted “the Green Building Manager, by his own admission, was unaware of federal statutes governing the energy efficiency of HVAC products and water heaters and the City attorneys who reviewed the Code did not raise the preemption issue."
The Court Order is a preliminary injunction. The Court will determine the extent to which the Code and Ordinance are preempted “after development of a full record.”
