District Court Judge Grants Injunction Barring Enforcement of Albuquerque Green Building Code; Legislators “Unaware” of Preemptive Federal Statutes

A federal court has barred the enforcement of new energy efficiency codes in the City of Albuquerque on the basis that those codes are preempted by applicable federal regulations.

As you may know by now, Chief District Judge Martha Vazquez of United States District Court for the District of New Mexico issued an order back on Friday granting a preliminary injunction in favor of the plaintiffs in AHRI et al. v. City of Albuquerque. The injunction bars the enforcement of the city’s Energy Conservation Code, which the plaintiffs claim is preempted by federal regulation, pending the outcome of the lawsuit.

I thought a portion of Vazquez’ 24-page written opinion was particularly interesting in light of much of our commentary on state- and local-level green building legislation here at gbNYC. “The city’s goals [in enacting the disputed code] are laudable,” Vazaquez wrote, “[u]nfortunately, the drafters of the code were unaware of the long-standing federal statutes governing the energy efficiency of certain HVAC and water heating products and expressly preempting state regulation of these products when the code was drafted and, as a result, the code, as enacted, infringes on an area preempted by federal law.”

Judge Vazquez’ remarks make it clear that municipalities need to be careful here. Enacting legislation without a comprehensive analysis of its corresponding legal implications- from preemption doctrine to claims that laws are vague or ambiguous, as industry groups in Connecticut recently asserted- is dangerous in terms of the potential for litigation and the damage it could do to the broader dissemination of green building practices. AHRI et al. v. City of Albuquerque may thus be the first of many green building litigations challenging legislation if the frenetic regulatory climate continues as we move into a new- and likely proactive- administration in 2009.

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