Federal Judge Puts Albuquerque's Green Building Code on Hold

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OAKLAND, Calif. -- Saying its measures infringe on areas preempted by federal law, a U.S. District Court judge has barred enforcement of Albuquerque's green building code pending the outcome of a lawsuit brought by a group of HVAC and water heating equipment trade organizations, contractors and distributors.

Chief District Court Judge Martha Vázquez of New Mexico issued the order on October 3 that grants the plaintiffs' request for a preliminary injunction. The move blocks enforcement of the first and second volumes of the Albuquerque Energy Conservation Code and High Performance Building Ordinance, which were adopted by the City Council in 2007.

The case has been watched closely by the legal community specializing in green building and by other local governments.

As part of Albuquerque's drive to reduce greenhouse gas emissions, its 2007 measures called for a 30 percent increase in energy efficiency for new commercial and residential buildings and those undergoing substantial renovations. Code provisions for single-family homes included use of more insulation, and more efficient heating, cooling and ventilating, water heating and lighting. Commercial and residential structures would also have to undergo thermal bypass inspections.

Proponents hailed the green building code as a key component in the city's campaign to make its communities and structures more eco-friendly by reducing waste, energy use, water consumption and CO2 emissions.

Critics contended that the measures were vague, tough to understand, clashed with federal regulations and would create big problems for people and businesses trying to abide by them.

After extended talks among stakeholders, the date for the code to take effect was delayed from spring to October 1. In July, however, the Air Conditioning, Heating and Refrigeration Institute and 13 other plaintiffs filed suit. They sought a preliminary injunction in the case the following month.

In her 24-page order on Friday, Vázquez wrote, "The city's goals in enacting Albuquerque's Energy Conservation Code and the Albuquerque High Performance Buildings Ordinance are laudable. Unfortunately, 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."

"Basically we're on hold until the case itself is resolved," said Albuquerque Environmental Health Director John Soladay.  "The mayor has worked diligently with the council to build one of the greenest cities in the nation. It is unfortunate we're held back in this manner."

Soladay added, however, "Our other green programs and initiatives are still rolling full speed ahead. While this is a temporary setback, it certainly won't dampen our green spirit."

In her conclusion, Vázquez said if there are portions of the city's green code that are not affected by the dispute, the parties can submit a mutually agreed upon order for her consideration to narrow the scope of the preliminary injunction.

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