ARLINGTON, Va. — Judge Martha Vazquez of the Federal District Court for the District of New Mexico has issued an opinion and order in favor of the Air-Conditioning, Heating, and Refrigeration Institute (AHRI), finding that the provisions of the 2007 Albuquerque Energy Conservation Code relating to the energy efficiency of federally covered residential and commercial HVAC equipment and water heaters are preempted by federal law, specifically the Energy Policy and Conservation Act (EPCA).

The ruling follows two previous rulings, one on Oct. 3, 2008, in which Judge Vazquez had issued a preliminary injunction against enforcement of these provisions, and one on Sept. 10, 2010, in which she granted in part and denied in part (without prejudice) AHRI’s motions for summary judgment.

“We are gratified that Judge Vazquez agreed with AHRI that regardless of intentions, the law must be followed,” said Joseph Mattingly, AHRI general counsel. “Our member companies produce very energy efficient equipment and are at the forefront of popular efforts to curb energy use, but we have maintained all through this case that federal law is very clear, and we are happy that the judge agreed with us. We look forward to continuing to provide highly efficient heating, cooling, commercial refrigeration, and water heating equipment to people in Albuquerque and around the world.”

In her latest opinion, Judge Vazquez confirmed her Sept. 10, 2010, rulings (1) that the prescriptive energy efficiency standards in the 2007 Albuquerque code that are more stringent than federal minimum efficiency standards are preempted and cannot be saved from federal preemption by the availability of alternative code compliance paths; and (2) that a particular performance-based code compliance option is preempted because it is based on a standard reference design that uses efficiency levels that exceed federal efficiency standards. Responding to a summary judgment motion filed by the city that essentially asked Judge Vazquez to reconsider her earlier rulings, she declined to do so and denied the city’s motion.

“AHRI is not opposed to using building codes to better enable installation of highly efficient equipment in new construction,” said Stephen Yurek, AHRI president and CEO. “In fact, we negotiated an agreement with energy efficiency advocates that would allow states and localities to use building codes to do just that, but we need Congress to pass legislation to make that happen. We are working very hard on Capitol Hill to ensure this gets done this year.”

The 2007 Albuquerque code provided that a building certified as LEED Silver or Build Green New Mexico-Silver would be deemed to be in compliance with the code. AHRI filed a summary judgment motion arguing that these code compliance alternatives were not severable from the preempted prescriptive requirements and therefore must fail along with the prescriptive requirements. In case Judge Vazquez were to deny AHRI’s motion on severability, AHRI at the same time filed a separate summary judgment motion arguing that these alternative compliance paths are themselves preempted by federal law because they do not satisfy the EPCA criteria for exception of performance-based building codes from federal preemption.

In her latest opinion, Judge Vazquez granted AHRI’s motion on severability. She found that the city had conceded that the code would not have been enacted by the city council if the prescriptive compliance paths were not included, and therefore the prescriptive compliance paths are not severable from the remaining performance-based compliance paths. She determined that in these circumstances a partially invalid statute cannot under New Mexico law remain in force. She therefore saw no need to rule on whether the alternative code compliance paths are independently subject to federal preemption.

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Publication date: 01/30/2012