Building Industry Association of Washington v. Washington State Building Code Council
United States Court of Appeals for the Ninth Circuit
683 F.3d 1144 (9th Cir. 2012)
Federal energy law (ECPA, as amended by EPACT) preempted state regulation of certain appliances' energy efficiency but exempted state or local building codes for new construction that satisfied a seven-factor test ensuring flexibility and non-discrimination among compliance options. Washington adopted 2009 amendments to its building-energy code, and the Building Industry Association of Washington (plaintiff) sued, arguing the code was per se preempted because it failed to satisfy the ECPA's seven-factor exemption test; both sides cross-moved for summary judgment.
Whether a facial preemption challenge to a state or local energy-efficiency building code can succeed by showing the code fails a statutory exemption test, without showing that no set of circumstances exists under which the code would be valid.