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Code Alert: Washington, 22 February 2011



Washington State Energy Code being challenged on many fronts

Following a six-month delay in implementation, Washington finally began enforcement of its 2009 energy code on January 1, 2011. The latest edition was supposed to be adopted statewide on July 1, 2010, but was delayed at the request of the Governor, who asked for a delay until April 2011. The adopting body, the Washington State Building Code Council (SBCC), only partially complied with the Governor’s request, implementing three months earlier. That was only one of many hurdles facing this energy code.

In the fall of 2010, the Building Industry Association of Washington (BIAW) filed a lawsuit against the Council to suspend the Energy Code or to remove a controversial new section, Chapter 9, from being enforced. Chapter 9 is described as a “menu” of optional energy efficient products or techniques, each assigned a point value. In addition to meeting the prescriptive or performance requirements in the rest of the code, each new building must achieve one point through this menu of options. The suit alleged that the requirement was illegal because it contains product efficiencies that exceed federal minimums, thus violating the concept of federal preemption. The court found that preemption is not violated because a builder can chose from a number of items and is not forced to comply with any single one.

In addition to the lawsuit there are other challenges, including a request to withdraw the 2009 WSEC based on a report by a State legislative review committee that found the Council failed to adequately evaluate the economic impact of the new code in violation of statute. By the time you read this, that request will likely have been disposed of by the Council. A larger issue completely out of the Council’s hands is a bill, HB 1388, that would delay the energy code until April 1, 2012. The legislation was introduced in the House this session by Rep. Bruce Dammeier, an ex-officio member of the SBCC. This bill has 30 co-sponsors from both political parties and has had one hearing in the Technology, Energy, and Communications Committee, with over 30 persons testifying; a slight majority in favor of the bill. With this being a “long” legislative session, scheduled to end in mid-April, even if successful this legislation would not take effect until 90 days after the end of the session, so the effective date would be mid-July at the earliest. Both of these efforts are moving forward even as local jurisdictions are obligated to enforce the 2009 WSEC because of the Council’s January 1, 2011 adoption date.

Even with the Washington Energy Code currently in force, the Council continues to muddy the application with recent interpretations that effectively change the intent and efficiency of the requirements; interpretations that come from political “negotiations” in which only one side was represented at the table. To say that building energy efficiency in the great State of Washington is an uncertain, confusing maze that probably no one is completely comfortable with would be an unarguable statement. https://fortress.wa.gov/ga/apps/sbcc/page.aspx?nid=3

Submitted by Joe Andre: joe.andre@nema.org