Introduction
A bevy of potential climate change legislation is frozen in Congress.
But while major climate measures, from cap-and-trade to a carbon tax, are politically incendiary,
there are facets of climate policy that are more palatable and no less critical.
Among these is energy efficiency, which has the capacity not only to mitigate climate change but also to stimulate economic growth and improve energy security.
Moreover, increased energy efficiency measures are practicable today: The research exists, and the technology is available. Or, as Nobel Prize–winning physicist and former Secretary of Energy Steven Chu put it, “The quickest and easiest way to reduce our carbon footprint is through energy efficiency. Energy efficiency is not just low-hanging fruit; it is fruit that is lying on the ground.”
Within the realm of energy efficiency, the building sector is particularly promising. Buildings have a long life expectancy, and they are responsible for forty percent of all energy use both in the United States and worldwide.
Additionally, U.S. buildings alone account for nine percent of the world’s greenhouse gas (GHG) emissions.
Increasing energy efficiency in buildings by adopting stronger building energy codes, then, can go a long way. It is estimated that between 1992 and 2040, buildings that meet energy code requirements will avoid almost 3.5 billion metric tons of carbon dioxide emissions, relative to historical building emissions levels.
In addition, in that same timeframe, energy efficient buildings can save U.S. home and business owners over $230 billion.
Yet, despite the opportunity for emissions reductions and cost savings that the building sector presents, states have relaxed—not strengthened—their building codes, by updating them less frequently or making them less stringent.
Additionally, because building code regulation occurs mostly at the state level, the topography of energy efficiency standards follows a familiar pattern in environmental law: While some states have statewide codes with ambitious clean energy targets, other states have no such codes at all.
And even in the states with strong building energy codes, compliance levels are scattered, leaving significant room for improvement.
The current regulatory landscape of building codes is thus insufficient for realizing the full scope of the environmental benefits and energy and cost savings that are available. This Note seeks to provide a viable framework that both capitalizes on existing regulatory structures and respects state and local authority, while also examining the potential for greater federal involvement in the regulation of building energy codes. Part I describes the regulatory structure of building energy codes and the involvement of the local, state, and federal governments. It also provides a brief discussion on the federalism challenges that complicate environmental law. Part II discusses the failings of the current building code regulatory structure at the local, state, and federal levels. Part III makes the argument that there can and should be greater federal involvement, proposes a model of cooperative federalism that addresses the existing flaws in the regulatory scheme, and explores the consequences of the proposed scheme.