Federalism and Conflict in Regulation of Green Buildings

Shari Shapiro from Obermayer Rebmann Maxwell & Hippel LLP joined us this morning to discuss “Who Should Regulate?– Federalism and Conflict in Regulation of Green Buildings”. 

After leading the audience in a yoga stretch, Shapiro paid homage to the spirit of Colonial Williamsburg (home of William & Mary School of Law) by quoting Alexander Hamilton. Her quote was used to illustrate the point that states have all the powers that they had before the Constitution’s passage.

Shapiro began her talk by noting that historically, environmental regulation occurred at a Federal level with a strong command and control focus on compliance.  Since 2000, Federal enforcement has been in decline, which has spurred states and municipalities to act.  While Federal action may increase with changes in the political landscape, the present reality of green building regulation is a patchwork of Federal, state, and local laws.

Shapiro pointed out that this upswing in state and local regulation has predictably resulted in litigation.  In October 2008, a District Court in New Mexico granted a preliminary injunction to a group of HVAC industry groups suing the City of Albuquerque to prevent the introduction a green building code that would have affected their businesses.  The code clearly ran afoul of the Federal law and is emblematic of the challenges state and local governments face in keeping in compliance of Federal law in the face of pre-emption.

(Shapiro also polled the audience to see if anybody was familiar with Albuquerque’s son– Freddie Prinze, Jr., known for such hit films as She’s All That. One brave soul raised their hand, proudly.)

Shapiro also noted that Federalism and green building have all the elements of a tabloid paper– inept politicians, hippies, B-List celebrities, Barack Obama, and corrupt officials.

The wisdom of Federal or state action sovereignty on green building regulation is not clear cut.  On a Federal level, regulation would allow for a single standard and would prevent cross border conflict, however the legislative process may result in compromises that result in a less stringent standard.  On a state level, flexibility in regulation can be achieved by local administration and greater experimentation, but it would create variable standards from state to state and may result in an imbalance in regulations through the states.

Shapiro noted that state pre-emption of local laws mirrors the Federal-state experience.  In 2004, Pennsylvania passed a uniform construction code that has been interpreted in state courts.  In a case before the Pennsylvania Supreme Court, a lower court ruled local green building laws can only be added to the statewide construction law if the locality demonstrates a clear and convincing need to change the law.  Local conditions must be so different than the statewide norm that the construction code is inappropriate to use.  This high standard results in a stymieing of local green building regulation. 

Shapiro closed her lecture with a look towards the future.  She predicted that in the next couple of years, many challenges to state and local laws on pre-emption grounds will occur.  However, litigation in this field may yield benefits.  Legal challenges help to clarify vagueness in the laws and the interplay between the courts and the legislatures help to refine environmental laws.  Litigation in this field is actually a healthy process.

In a question-and-answer session after the lecture, Shapiro noted that Federal action in green building regulation by the Obama administration may be far reaching and could result in a greater pre-emption.  The expectation is so high, many state and local governments are presently waiting to see what the Obama administration will do before passing any more laws.