The eight-person New Mexico Construction Industries Commission (CIC) was expected on Friday to file a motion with that state’s Court of Appeals requesting a rehearing after the court, on April 4, set aside a decision by the commission in the summer of 2011 to make extensive changes to energy codes for residential and commercial construction that former Gov. Bill Richardson had implemented in 2009.

 

That ruling immediately stirred up a hornet’s nest about which energy code is currently in force. Environmental groups, led by the New Mexico Environmental Law Center in Santa Fe, want the CIC and Gov. Susana Martinez (who installed new commissioners after she came to office in 2011) held in contempt for refusing to abide by the so-called Richardson Codes that, in the opinion of Tammy Fiebelkorn, an environmental economist with the Southwest Energy Efficiency Project (SWEEP), became the “default” codes after the court of appeals ruled against CIC’s amended regulations.

 

Builders in New Mexico don’t see things that way, and in fact want the court to declare whether the Richardson Codes or the baseline 2009 International Energy Conservation Code is in effect while the court decides whether to grant a rehearing, a decision it must make within 15 days of CIC’s motion.

 

“All of this will be moot in a few weeks,” predicts Pat Casey, a CIC commissioner who is also president of the New Mexico Homebuilders Association and owner of C5 Construction. The court, he points out, ruled against the code changes because it said the CIC had not provided sufficient reasons for making those changes. So over the next two weeks, the commission will articulate in writing why it amended the Richardson Codes, and will also take another vote on the matter.

 

This confrontation has been brewing since 2006, when then–Gov. Richardson signed an executive order requiring that all new state buildings and remodels greater than 15,000 square feet had to be able to achieve LEED Silver certification.

 

Jurisdictions in New Mexico then started adopting provisions that would improve the energy efficiency of new construction. And in March 2009, Richardson directed the New Mexico Regulation and Licensing Department’s Construction Industries Division to propose new building codes to the CIC that could meet or exceed the 2009 International Energy Conservation Code (IECC).

 

After months of public hearings, a Code Change Committee arrived at a package of energy codes that would make all new residential construction 20.9% more efficient than homes built under the guidelines of the 2006 IECC, and reduce energy costs by up to $66 million over a 10-year period.  

 

On January 28, 2011, the 2009 New Mexico Energy Code replaced the 2006 IECC. But six months later, CIC sought changes that removed from the Richardson Code any energy conservation provisions that went beyond the “base” 2009 IECC. In June 2011, the CIC adopted its own code changes (in essence reverting to the base 2009 IECC), sparking a lawsuit filed by several environmental groups—including the Sierra Club and SWEEP—to overturn the CIC’s decision.

 

Casey and Jack Milarch, the New Mexico HBA’s chief executive, explain that builders objected to the Richardson Code because they thought the regs would have added too much to the cost of building a house at a time when the economy was still fragile. Builders also didn’t care for the “prescriptive” nature of the Richardson Codes, which Casey and Milarch claim lacked tradeoff provisions. For example, if a home buyer wanted a huge picture window from which to view mountain vistas, builders might offset the impact of that window by installing a more energy-efficient furnace. But, say Casey and Milarch, the Richardson Codes weren’t flexible enough to allow that kind of performance-based substitution.

 

“I find those comments interesting,” says Fiebelkorn of SWEEP, “because the builders were the ones who developed the [Richardson] Codes.” To back up her claim, Fiebelkorn provided Builder with a document that her energy consulting company, eSolved, released in June 2010, which showed that the majority of the 20 people on the Code Change Committee (including Milarch) were either builders or building industry officials. Pulte was involved in the code update process, as were numerous building product manufacturers. Fiebelkorn, who served on the committee, recalls that it used builder-provided HERs and cost data to calculate the economic impact of new energy codes.

 

(The eSolved document states that the cost-change proposals before the CIC at the time would have resulted in an average monthly savings per homeowner of $13.93, compared to less than $1 per month if the base 2009 IECC were followed.)

 

Fiebelkorn also claims the new codes came with a “New Mexico–specific tradeoff manual. It doesn’t give [builders] a free ride, but it is flexible.”

 

The court of appeals only ruled on one of seven issues concerning the state’s energy codes, which still need to be resolved. Given that both sides of this debate believe the law favors their point of view, compromise seems unlikely. And given that the current CIC members will be around for a while (they serve four-year terms), this dispute could end up back in court in the coming months.

 

John Caulfield is senior editor for Builder magazine.