This summer, the U.S. Senate will continue to advance the Energy Savings and Industrial Competitiveness Act of 2013. Introduced by Senators Jeanne Shaheen (D–NH) and Rob Portman (R–Ohio), this important piece of legislature will, among many other items, promote model building codes and standards while kick-starting private sector investment in commercial, industrial, and municipal building energy performance.

Certain forthcoming amendments notwithstanding, the Shaheen-Portman bill is largely supported by the high-performance building community. However, it stops short of mandating a national energy code for all public and private buildings.

The prospect of a national building energy code holds several virtues. Ensuring a uniform, minimum standard for energy performance would:

  1. Offer the highest potential at the lowest cost to reduce energy consumption within the U.S. building sector;
  2. Provide every national green building rating system with a clear, common baseline from which to gauge energy-related achievement;
  3. Spur industry competition to provide products and materials with greater efficiency.

By stopping short of mandating a national building energy code, is the Shaheen-Portman bill making a calculated Washington-style compromise to garner bipartisan support?

No. The truth is that the federal government does not clearly have the authority to mandate any sort of national building code. The root of the issue goes back to fundamental constitutional rights.

Building regulations are a state issue. State and local governments are empowered to enact and regulate building codes as part of their reserved powers under the Tenth Amendment to the U.S. Constitution. The U.S. Supreme Court has interpreted that amendment to permit the states to enact legislation designed to protect the health, safety, and welfare of their populace--the very rationale for the existence of codes. In addition, the fiscal impact of implementing revised (or completely new) language will vary widely from state to state. Thus, building regulation is a power appropriated to states, not the federal government.

Energy codes are part of building regulation. In a broad sense, the scope of a "building energy conservation code" falls within the rubric of building regulation. Therefore, it is appropriate for energy codes to be enacted at the state and local municipality level rather than at the federal level.

The federal government can pressure states to update their energy codes. In the wake of the Great Recession, the American Recovery and Reinvestment Act (ARRA) of 2009 distributed what was commonly referred to as "stimulus funds" to states to spur economic recovery. However, there was a catch: The ARRA language clearly declared that in order for states to accept their respective allocations (which in total has amounted to an excess of $520 billion), they must do three things:

  1. Adopt an energy code for residential buildings that meets or exceeds the 2009 IECC;
  2. Adopt an energy code for commercial buildings that meets or exceeds ASHRAE 90.1-2007;
  3. Develop and implement a plan to comply with the energy codes described in the first two criteria with at least 90 percent of new and renovated residential and commercial space by 2017.

The Shaheen-Portman bill takes a similar tact as failure to comply “may be a consideration for federal support.” The bill also establishes incentive funding to states to implement the requirements of the bill.

States need money, so they are updating their codes. In order to comply with ARRA requirements, my home state of Indiana had to update a commercial building energy code based on the 1992 Model Energy Code. It was a monumental task and the market is still coming to grips with the impact of the change. On the other hand, since 2009 Indiana has received more than $4.5 billion dollars in stimulus funding.

The Shaheen-Portman bill will continue this trend of leveraging federal funding to encourage states to become instruments of national policy designed to proliferate state-level energy code updates.

But what if a state refuses to respond to federal policies regarding building energy conservation? The interrelationship of the Energy Policy and Conservation Act (EPCA) and the Energy Policy Act (EPAct) already establishes avenues for the Secretary of Energy to issue “determinations” to verify that revised model energy codes improve energy efficiency in buildings compared to existing codes. Once finalized, these determinations initiate a time window for states to revise their energy codes accordingly.

Shaheen and Portman’s Energy Savings and Industrial Competitiveness Act of 2013 would similarly leverage such determinations to prompt every state to prove that its current energy code meets or exceeds the stringency of the revised model code–unless the state updates its energy code appropriately.

However, all of these federally enacted policies stop short of outlining clear consequences for state noncompliance because of the apparent constitutional rights related to state sovereignty and powers. The virtues of a national building energy code are distinctly different from its validity.

Daniel Overbey, AIA, is the director of sustainable design practices for Browning Day Mullins Dierdorf Architects in Indianapolis. He is also an instructor of architecture at the Ball State University College of Architecture and Planning. He can be reached at doverbey@bdmd.com or 317-635-5030.