Energy Code Appeals Put Efficiency Progress at Risk

The amount of energy used by new buildings in the years to come is at risk of being higher than it should be—and higher than local government officials desire—if building and fossil gas industry interests prevail in overturning portions of the latest model energy code. The 2021 International Energy Conservation Code (IECC) was on pace to be the most energy efficient code ever. But if industry interests succeed, there will be increased costs for owners and occupants, more power plant pollution dirtying our air, and thwart the ability of local governments to use building energy codes as a critical tool for cutting emissions and achieving their climate and clean energy goals.

At stake is the final 2021 International Energy Conservation Code, which state and local governments can adopt to regulate the energy use of new buildings. While the energy code was voted on by governmental officials, validated by an International Code Council (ICC) committee and independent auditors, and accepted by the ICC Board of Directors months ago, the code is now working its way through an appeals process that puts these momentous gains at risk. In fact, the final hearing on some of the issues being raised is happening Monday, September 14.

A number of groups brought appeals, including the National Association of Home Builders, the Leading Builders of America, the Air Conditioning, Heating, and Refrigeration Institute, the American Gas Association, and the American Public Gas Association—all of which have a financial stake in the construction of new buildings.

The groups’ appeals are summarized in this blog from my colleague Kim Cheslak at the New Buildings Institute. In short, all of the appeals focus specifically on proposals that energy efficiency advocates and governmental voting members care the most about, including electrification and electric vehicle readiness (ensuring there is infrastructure should homeowners want to transition from fossil fuels to clean electricity to run their appliances and cars), water heating efficiency, and numerous other energy-saving proposals that will improve the code, save consumers money, and eliminate energy waste along with the need to use fossil fuels to power the buildings.

The sheer number of appeals is unprecedented—likely because the interest in a more efficient code is greater than ever before. More than a thousand municipal officials participated in the code development process, and they were motivated to weigh in because they know strong building codes are key to cutting carbon emissions. After all, buildings are responsible for about 40 percent of climate-warming pollution, and many jurisdictions have strong, binding policies in place to reduce such emissions. Governmental voters sent a clear message through their votes: an improved, efficient, modern energy code is imperative to meeting local and national climate and energy goals. We’re fighting every step of the way to defend this amazing progress.

Wonky but significant

The International Code Council’s process to develop the energy code is admittedly wonky–but it’s crucially important to ensuring our new buildings are efficient and help save energy and reduce carbon. Developing an updated code involves submitting proposed changes, technical committee review and approval, public hearings, a comment process, and voting by members of the International Code Council. Voting members must be employees of state or local governments, and the ICC has an extensive process to validate voters and the voting process. The ICC prides itself on administering a fair and balanced process, leaving the contents of the code ultimately up to the governmental officials who will eventually adopt and use the code in their jurisdictions.

However, this year’s appeals process threatens to undermine the will of the governmental members. The appellants propose to simply overturn more than 20 efficiency proposals, completely deleting them from the 2021 code, in spite of the fact that they were approved by following the ICC process and passed the governmental vote with a clear supermajority. More governmental voting members than ever were involved in the process to develop the 2021 IECC, and they voted in droves in favor of energy efficiency.

Builders and industry groups argued in their appeals that some of the proposals—namely those that will require electrification readiness in new homes and electric vehicle readiness in new homes and commercial buildings—are outside the scope of the code.

The ICC technical committees—which are dominated by industry representatives—had voted to reject those proposals. But the process allows for their recommendations to be overturned by a two-thirds majority vote. And in fact, governmental members’ votes overturned the technical committees on a number of proposals by extremely wide margins, yet industry appellants argue that these votes were somehow invalid. They have also brought up issues related to federal preemption (a legal issue which delineates federal versus state authority), which are completely inappropriate for the ICC to decide.

Surprisingly, the ICC staff—who have historically served as a voice for the voting membership during appeals processes—sided with the appellants on issues of scope and intent of the code. Appeals are supposed to be considered strictly on “matters of process and procedure,” per the ICC policies, yet appellants are arguing issues that go far beyond such considerations. NRDC strongly disagrees with the appellants’ claims and the extreme proposed “solution” to disregard the vote of the membership, as we lay out in our comments here and here.

The ICC has already had hearings related to federal preemption and the scope and intent of the code. The final hearing Monday (Sept. 14) to discuss the impact of online voting, cost impact of the proposals, voting guides, voter eligibility, and the voter validation process. Anyone interested can listen to the hearing by registering here. After the hearings are finished, these issues will be considered by the full ICC Board of Directors on September 16.

Ultimately, this appeals process comes down to upholding the will of the hundreds of governmental voters who are demanding a more efficient energy code for their residents and a cleaner energy future, versus the builders and industry groups standing in the way of efficiency. The decision should be straightforward: the energy code belongs to the voting members, and their votes were clear.