The UCLA Law Clinic filed a brief in the District of Columbia Circuit Court supporting the District’s Clean Buildings Act, a legislative effort aimed at reducing the environmental footprint of construction and renovation. The clinic filed the amicus brief last Friday on behalf of eleven leading energy and environmental law professors. This group includes faculty from UCLA, the University of Utah, UC Berkeley, the University of Michigan, Yale, The Ohio State University, Lewis & Clark, Vanderbilt, the University of Texas, and the University of Pennsylvania.
Legal battle over local building codes
National Association of Home Builders v. DC sits at the center of a broader national debate regarding the balance of power between state and federal governments in setting environmental standards. Industry groups are arguing that local and state policies, such as the Clean Buildings Act, are preempted by the federal Energy Policy & Conservation Act (EPCA). Their argument suggests that federal law supersedes any local restrictions on energy use or building materials.
The DC Clean Buildings Act provides that builders cannot use fossil fuels for on-site combustion in certain newly constructed or substantially improved buildings. Reducing the environmental footprint of construction remains a priority for these legislators.
Historical precedent and federalism
The professors’ brief highlights what they describe as a long-standing history of precedent supporting local authority over energy distribution. They argue that the federal government’s primary role in energy matters is focused on interstate transport, leaving the regulation of local distribution and use to state and local governments. This distinction is rooted in traditional federalism and the unique structure of government operations within the District of Columbia itself, a city governed under special congressional rules.
The legal team points out that DC holds a unique status as a federal enclave. In this context, Congress has explicitly delegated police powers—including the regulation of utilities—to the local government. That delegation is seen as a key factor in allowing the District to set its own building standards without fear of federal preemption.
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Legal precedent
Plaintiffs in these types of cases often rely on a specific decision from the Ninth Circuit Court of Appeals in California Restaurant Association v. Berkeley. The brief argues that this decision was poorly reasoned and adopted an overly broad interpretation of federal preemption. It ignored the technical specifics of the EPCA provision concerning energy conservation standards.
Other courts have contradicted the Ninth Circuit’s approach in this area. Both another panel of the Ninth Circuit and the Second Circuit have held that the preemption provision is strictly limited to energy conservation standards. They have ruled that policies touching on energy use, but not strictly conservation targets, are not subject to federal preemption, allowing localities more freedom to innovate.
In all of these cases, the plaintiffs have relied heavily on a poorly-reasoned 9th Circuit decision in California Restaurant Association v. Berkeley. Despite amicus briefs and dissents to the contrary, that opinion ignored the technical nature of the EPCA preemption provision and adopted an overly broad interpretation of federal preemption. Every court to rule on these issues since then (including another 9th Circuit panel and the 2nd Circuit) has properly held that the preemption provision is limited to energy conservation standards (and very similar policies), not anything that touches on energy use.
Upcoming proceedings
Oral argument is scheduled in this case on September 8, with an opinion expected some months later. Hopefully, the DC Circuit will follow the thoughtful reasoning of the underlying district court decision and other recent opinions (including last month’s 2nd Circuit decision) and uphold DC’s authority to set sensible policies to reduce pollution, advance safety, and reduce wasteful spending on duplicative gas infrastructure.
