Strengthening States' Authority To Enact Tougher Green Building Standards

Treehugger has an article identifying 7 executive orders which Obama should sign to protect the environment.

The one which interested me calls for protecting stronger state laws from weaker federal ones

The next President should [...] should amend the existing Executive Order on Federalism to strengthen provisions setting forth a presumption against preemption; require agencies to provide a written justification for preemption; and require that, when a federal statute allows states to adopt more stringent standards or seek a waiver of statutory preemption (as in EPA's denial of California's Clean Air Act waiver), agencies must provide a written justification to the White House before denying the state's regulatory authority or waiver request. As is the case with the existing Executive Order on Federalism, these recommendations are consistent with the goals of the various statutes under which the environmental, safety, and public health agencies operate, including the National Environmental Policy Act.

The preemption issue has proven to be extremely significant in green building regulatory challenges. In AHRI v. City of Albuquerque, we saw an effective challenge to Albuquerque's green building code based on weaker federal energy standards for HVAC equipment. See my post here for more on the AHRI v. City of Albuquerque case.

However, an executive order will not go very far to prevent federalism challenges to green building regulation. For example, it would not have effected the challenge to Albuquerque's green building code because 1) the City of Albuquerque never applied for a waiver, so the executive order would not have applied in that case, and 2) Congress specifically preempted state regulation of energy efficiency of HVAC equipment.

See related posts on green building law and federalism here

Federalism--Green Building Law Quagmire?

Federalism, one of the founding principals of American democracy by which states (and through the states, cities, counties and municipalities) and the Federal government have there own spheres of governance, may ultimately strangle effective green legislation.

I wrote on the blog earlier this summer about a suit filed by HVAC indsutry associations challenging Albuquerque's green building code claiming that the energy requirements for the HVAC equipment was preempted (i.e. already regulated) by Federal law. http://greenlaw.blogspot.com/2008/07/green-building-litigation-hits-in-new.html

Yesterday, "Following months of debate and squabbling, the House of Representatives just passed a bill that could open America’s coasts to offshore drilling, as well as extend the tax credits for clean energy and offer other incentives for clean power and green transportation." http://earth2tech.com/2008/09/16/house-approves-offshore-drilling-extends-clean-energy-credits/ One of the complaints Earth2Tech noted that the Republicans have voiced about the bill is that "the bill also creates a federal renewable portfolio standard that would require 15 percent of the nation’s electricity to be generated from renewable sources. Going beyond states’ mandates is viewed as a form of “big government” with which Republicans disagree."

In short, the Republicans are saying that the Federal government shouldn't pass sustainability regulations, and certain interest groups are suing to prevent states (and through them, municipalities) from regulating, it could create a quagmire in which no government entity is able to effectively pass sustainability regulations.

Green Federalism and The Role of Local Government in Environmental Regulation

Since the end of the Clinton administration, environmental regulation in the United States has largely been the domain of the states and local governments. This eventuality is somewhat counter-intuitive. Environmental damage has traditionally been a prime candidate for federal regulation because of its cross-border effects. The pollution which is generated in Mississippi will blow into Alabama, the water which is used in Colorado is unavailable in California. The first federal regulation of the environment in the 1970s and 1980s was basically established on this premise.

However, the lack of federal action on global warming s has created a well-spring of creative legal experimentation with local control of cross-border problems. For example, California is proposing to triple its greenhouse gas regulations over the next few years, proposing regulations requiring trucks and trailers to be fitted with devices to reduce aerodynamic drag, setting standards to reduce perfluorocarbon emissions in the semiconductor industry and having workers at tuneup and oil-change shops check tires for proper inflation as part of the service. Several states have developed anti-sprawl initiatives, including urban growth boundaries, open space preservation requirements and tranditonal neighborhood development zoning plans. SQUARING THE CIRCLE ON SPRAWL: WHAT MORE CAN WE DO? PROGRESS TOWARD SUSTAINABLE LAND USE IN THE STATESNAME, Patricia E. Salkin, 16 Widener L.J. 787 (2007). Most significant may be the regional and even international accords which are developing, including the Regional Greenhouse Gas Initiative in the Northeast--http://www.rggi.org/-- and the Western Climate Initative--http://www.westernclimateinitiative.org/Index.cfm.

But the ultimate question remains--can a non-federal patchwork of environmental regulations effectively combat global warming? I think not. There will be states and regions that lag behind, failing to regulate pollutants. Companies interested in avoiding the regulations will relocate to those areas with fewer regulations. The federal government maintains its ability to preempt any state or regional regulations, so that the federal government can clip the wings of any local or regional regulatory scheme.

However, state and local action may be responsible for shifting the federal government towards further regulation, and providing a pre-tested set of initatives which could be scaled up to the national level under new leadership.