Building Industry Ass'n v. Washington State Building Code Council , 683 F.3d 1144 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BUILDING INDUSTRY ASSOCIATION OF 
WASHINGTON; AIR AMERICA INC.;
BOA CONSTRUCTION CO.; COMPLETE
DESIGN INC.; AIREFCO INC.; CVH
INC.; ENTEK CORP.; FAMILY HOME
INVESTMENTS CORP.; SADLER
CONSTRUCTION INC.; TRACY
CONSTRUCTION CO., No. 11-35207
Plaintiffs-Appellants,
v.  D.C. No.
3:10-cv-05373-RJB
WASHINGTON STATE BUILDING CODE OPINION
COUNCIL,
Defendant-Appellee,
NW ENERGY COALITION; SIERRA
CLUB; WASHINGTON ENVIRONMENTAL
COUNCIL; NATURAL RESOURCES
DEFENSE COUNCIL,
Intervenor-Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, Senior District Judge, Presiding
Argued and Submitted
February 9, 2012—Seattle, Washington
Filed June 25, 2012
7493
7494 BUILDING INDUSTRY v. WASHINGTON STATE
Before: Mary M. Schroeder and Ronald M. Gould,
Circuit Judges, and Ralph R. Beistline,
Chief District Judge.*
Opinion by Judge Schroeder
*The Honorable Ralph R. Beistline, Chief United States District Judge
for the District of Alaska, sitting by designation.
7496 BUILDING INDUSTRY v. WASHINGTON STATE
COUNSEL
Timothy M. Harris, Tacoma, Washington, for plaintiffs-
appellants Building Industry Association of Washington, et al.
Ann C. Essko, Assistant Attorney General, Olympia, Wash-
ington, for Washington State Building Code Council.
H. Thomas Byron, III, United States Department of Justice,
Washington, D.C., for amicus curiae United States of Amer-
ica.
OPINION
SCHROEDER, Circuit Judge:
The Energy Policy and Conservation Act of 1975
(“EPCA”), 42 U.S.C. § 6295 et seq., as amended, establishes
nationwide energy efficiency standards for certain residential
home appliances, and expressly preempts state standards
requiring greater efficiency than the federal standards. It
nonetheless exempts from preemption state building codes
promoting energy efficiency, so long as those codes meet cer-
tain statutory conditions. § 6297(f)(3).
This case is a challenge to the State of Washington’s Build-
ing Code, see Wash. Admin. Code § 51-11-0100 et seq.,
brought by the Building Industry Association of Washington
(“BIAW”), along with individual builders and contractors.
The impetus for this challenge is the State’s 2009 requirement
that new building construction meet heightened energy con-
servation goals. This is the first case at the appellate level to
consider EPCA’s preemption-exemption provision. Plaintiffs-
Appellants (“Plaintiffs”) argue that the Building Code does
not satisfy EPCA’s conditions for exemption. The district
court, however, held that Washington had satisfied EPCA’s
conditions, and therefore was not preempted. We affirm.
BUILDING INDUSTRY v. WASHINGTON STATE 7497
To escape preemption, a state’s building code must satisfy
the seven conditions codified in 42 U.S.C. § 6297(f)(3). The
two at issue here are § 6297(f)(3)(B) and (C). Under subsec-
tion (B), a state’s building code cannot require a covered
product—energy consuming fixtures such as water heaters
and refrigerators—to be more efficient than the standards
established by the United States Department of Energy
(“DOE”). The State of Washington’s Building Code requires
builders to reduce a building’s energy use by a certain
amount, and provides a number of options from which a
builder may choose how to meet that requirement. Some of
the options involve the installation of products that have an
efficiency that exceeds the federal standards. These options,
according to the builders, also happen to be cheaper than the
other options. The builders contend that they are therefore
being “required” to use products that exceed the federal stan-
dards, in violation of subsection (B). We hold that a builder
is not “required” to select an option, within the meaning of
subsection (B), simply because there is an economic incentive
to do so. Section 6297(f)(3)(B) is violated when the code
requires a builder, as a matter of law, to select a particular
product or option. The Supreme Court has recognized this to
be what a requirement entails. See Bates v. Dow Agrosciences
LLC, 544 U.S. 431, 445 (2005) (rejecting a preemption chal-
lenge, and holding that the term “requirement” in a different
statute means “a rule of law that must be obeyed”). Plaintiffs
in this case are thus not “required” to choose the less expen-
sive, more efficient option.
Plaintiffs’ challenge under § 6297(f)(3)(C) of the federal
law is more factual in nature. Subsection (C) contemplates
that building codes will allow builders to meet energy effi-
ciency objectives through a system of credits for implement-
ing solutions that save on either energy use or energy cost. It
provides that a building code must grant credits on the basis
of how much each option reduces energy use or cost, without
favoring particular products or methods. It requires that the
credits be allowed on the basis of “one-for-one equivalent
7498 BUILDING INDUSTRY v. WASHINGTON STATE
energy use or equivalent cost.” Plaintiffs argue that the Build-
ing Code here does not satisfy this condition, because they
contend its credits are not granted on a one-for-one equivalent
energy use basis. Their argument relies solely upon a BIAW
member’s declaration. The district court rejected the declara-
tion after finding that the witness was not qualified as an
expert to challenge the state’s calculations of equivalent
energy use savings produced by using particular products or
building methods. We hold there was no abuse of discretion
in disallowing that evidence.
The evidence that is in the record supports the district
court’s conclusion that the state-assigned credit values satisfy
the “one-for-one equivalent energy use” requirement of sub-
section (C). The district court admitted the State’s expert testi-
mony and documentation because the court found the State’s
computer models for assigning credit values used sound data
and methodology, and that they were reliably applied. See
Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579
(1993). The district court properly held that Plaintiffs could
not show that the Building Code violated subsection (C).
Plaintiffs do correctly note that even where the State gives
two options the same credit, there may not be an exact match
between the energy savings produced by each option. This is
an inevitable result, however, when comparing methods that
use different products to obtain an energy conservation goal.
Some approximation is necessarily included in the concept of
equivalence, as Congress and the district court have recog-
nized. See, e.g., S. Rep. No. 100-6 at 10 (1987) (“The Com-
mittee recognizes that in some cases, exact equivalency is not
possible.”).
We therefore hold that the Washington Building Code sat-
isfies the conditions Congress established for enforcement of
state and local building codes consistent with federal energy
law and we affirm the judgment of the district court in favor
of the State.
BUILDING INDUSTRY v. WASHINGTON STATE 7499
BACKGROUND
The Federal Regulatory Framework
Congress enacted EPCA as a comprehensive federal regime
regulating energy and water conservation standards for certain
consumer appliances. Congress gave DOE primary responsi-
bility for promulgating regulations prescribing a “minimum
level of energy efficiency or a maximum quantity of energy
use” for the covered consumer products. 42 U.S.C.
§ 6291(6)(A); see § 6295.
EPCA defines a “consumer product,” in relevant part, as
“any article . . . of a type—(A) which in operation consumes,
or is designed to consume, energy or, with respect to shower-
heads, faucets, water closets, and urinals, water; and (B)
which, to any significant extent, is distributed in commerce
for personal use or consumption by individuals . . . .”
§ 6291(1). Consumer products covered by EPCA’s energy-
efficiency provisions are identified in § 6292, and include
durable goods such as refrigerators, air conditioners, water
heaters, furnaces, dishwashers, clothes washers and driers,
kitchen ranges and ovens, faucets, and showerheads.
§ 6292(a). These covered consumer products are typically
installed in new home construction.
As initially enacted in 1975, EPCA provided that federal
energy efficiency standards be established for covered prod-
ucts, and it preempted all state “efficiency standard[s] or simi-
lar requirement[s]” for covered products. Energy Policy and
Conservation Act of 1975, Pub. L. No. 94-163, sec. 327, 89
Stat. 871, 926-27. Congress modified the blanket preemption
in 1987, when it amended EPCA to carve out an explicit
exemption from preemption for certain efficiency standards in
state and local building codes. See National Appliance Energy
Conservation Act of 1987, Pub. L. No. 100-12, sec. 7, 101
Stat. 103, 117-22 (codified as amended at 42 U.S.C. § 6297).
EPCA thus now expressly exempts from preemption any reg-
7500 BUILDING INDUSTRY v. WASHINGTON STATE
ulation or other requirement contained in a state or local
building code for new construction concerning the energy
efficiency or energy use of covered products, but only if the
provisions of the code satisfy seven statutory conditions. 42
U.S.C. § 6297(f)(3). The conditions are as follows:
(A) The code permits a builder to meet an energy
consumption or conservation objective for a building
by selecting items whose combined energy efficien-
cies meet the objective.
(B) The code does not require that the covered prod-
uct have an energy efficiency exceeding the applica-
ble energy conservation standard established in or
prescribed under section 6295 of this title, except
that the required efficiency may exceed such stan-
dard up to the level required by a regulation of that
State for which the Secretary has issued a rule grant-
ing a waiver under subsection (d) of this section.
(C) The credit to the energy consumption or conser-
vation objective allowed by the code for installing
covered products having energy efficiencies exceed-
ing such energy conservation standard established in
or prescribed under section 6295 of this title or the
efficiency level required in a State regulation
referred to in subparagraph (B) is on a one-for-one
equivalent energy use or equivalent cost basis.
(D) If the code uses one or more baseline building
designs against which all submitted building designs
are to be evaluated and such baseline building
designs contain a covered product subject to an
energy conservation standard established in or pre-
scribed under section 6295 of this title, the baseline
building designs are based on the efficiency level for
such covered product which meets but does not
exceed such standard or the efficiency level required
BUILDING INDUSTRY v. WASHINGTON STATE 7501
by a regulation of that State for which the Secretary
has issued a rule granting a waiver under subsection
(d) of this section.
(E) If the code sets forth one or more optional com-
binations of items which meet the energy consump-
tion or conservation objective, for every combination
which includes a covered product the efficiency of
which exceeds either standard or level referred to in
subparagraph (D), there also shall be at least one
combination which includes such covered product
the efficiency of which does not exceed such stan-
dard or level by more than 5 percent, except that at
least one combination shall include such covered
product the efficiency of which meets but does not
exceed such standard.
(F) The energy consumption or conservation objec-
tive is specified in terms of an estimated total con-
sumption of energy (which may be calculated from
energy loss- or gain-based codes) utilizing an equiv-
alent amount of energy (which may be specified in
units of energy or its equivalent cost).
(G) The estimated energy use of any covered product
permitted or required in the code, or used in calculat-
ing the objective, is determined using the applicable
test procedures prescribed under section 6293 of this
title, except that the State may permit the estimated
energy use calculation to be adjusted to reflect the
conditions of the areas where the code is being
applied if such adjustment is based on the use of the
applicable test procedures prescribed under section
6293 of this title or other technically accurate docu-
mented procedure.
42 U.S.C. § 6297(f)(3)(A)-(G). As long as a state building
code meets these conditions, the state does not need to peti-
7502 BUILDING INDUSTRY v. WASHINGTON STATE
tion for the DOE’s approval to enforce its building code. See
§ 6297(f)(4)(A).
Behind the 1987 preemption exemption lies Congressional
recognition that state and local building codes have a major
impact on energy consumption. Buildings, and the fixtures
installed in them, make up a large proportion of energy and
electricity use throughout the country. See 2010 Buildings
Energy Data Book *1-2, 1-6 (DOE 2010), online at http://
buildingsdatabook.eren.doe.gov/docs/DataBooks/2010_
BEDB.pdf (nearly 40% of energy use, and over 70% of elec-
tricity use) (accessed June 18, 2012). Buildings and fixtures
tend to have long lifespans, so choices made at the outset dur-
ing construction are likely to have far-reaching future effects
on energy consumption. It is for this reason that Congress, in
EPCA, has permitted states some limited means of regulating
these choices. Federal regulations promulgated under EPCA
provide minimum standards for the energy efficiency of such
fixtures, see 42 U.S.C. § 6295; 10 C.F.R. § 430.32, and the
federal statute preempts state attempts to impose minimum
standards greater than the federal law, see 42 U.S.C.
§ 6297(c). States thus cannot, for example, require that any
water heater sold or installed in the state meet energy-
efficiency requirements more stringent than federal require-
ments. States seeking to implement energy conservation goals
through their building codes must therefore ensure that the
code satisfies the conditions established in EPCA for exemp-
tion from federal preemption. There is no dispute that Wash-
ington’s building code is “a State or local building code for
new construction concerning the energy efficiency or energy
use” of appliances covered by EPCA’s efficiency regulations.
§ 6297(f)(3). If the code does not meet EPCA’s conditions, it
is preempted.
The Washington State Building Code
Washington’s legislature has opted to use its regulatory
police power to enact a statewide code for building construc-
BUILDING INDUSTRY v. WASHINGTON STATE 7503
tion to promote, inter alia, energy efficiency goals. The devel-
opment of the code before us reveals the State’s sensitivity to
EPCA’s conditions. The Washington legislature identified
energy consumption patterns in new building construction as
an area in which it could create incentives for energy effi-
ciency, and enacted a regulatory regime that meets specific
efficiency goals over the next two decades. The legislature
explained that it enacted energy conservation mandates to bal-
ance “flexibility in building design” against “the broader goal
of building zero fossil-fuel greenhouse gas emission homes
and buildings by the year 2031.” Rev. Code Wash.
§ 19.27A.020(2)(a); see also id. § 19.27A.130 (“Washington
can spur its economy and assert its regional and national clean
energy leadership by putting efficiency first.”).
While the legislature has mandated the goals, it has dele-
gated authority to Defendant-Appellee Washington State
Building Code Council (“Council”), to promulgate and update
the statewide building code. Rev. Code Wash. § 19.27A.045.
The Council must review and may amend the state Building
Code periodically, id., and between 2013 and 2031 it will
have to amend the Code progressively to implement the legis-
lature’s mandated goals, id. § 19.27A.160. The Building Code
that will be effective in 2031 will have to achieve a “seventy
percent reduction in annual net energy consumption” com-
pared to the Building Code effective in 2006, the baseline
year. § 19.27A.160(1).
The Council amended the Code effective in 2009 to imple-
ment a 15% reduction in new buildings’ energy consumption,
compared to the 2006 baseline. The 2009 amendments, a pre-
cursor to those expected to take effect in 2013, are the subject
of Plaintiffs’ challenge here.
In the 2009 Code, the Council offered builders three meth-
ods, termed “pathways,” for achieving the 15% reduction in
energy consumption. Each such pathway to compliance is
codified under one of three chapters of the Code. See Wash.
7504 BUILDING INDUSTRY v. WASHINGTON STATE
Admin. Code §§ 51-11-0401 (Chapter 4); 51-11-0501 (Chap-
ter 5), 51-11-0601 (Chapter 6). A builder who elects the
Chapters 5 or 6 pathways will not fully achieve the 15%
reduction in energy consumption. The Building Code there-
fore requires a builder electing Chapters 5 or 6 to earn one
“credit” under Chapter 9, which provides alternative methods
for further reducing energy consumption by the necessary
amount. § 51-11-0900. As the Defendants explained to the
district court, the options set forth in Chapter 9 address differ-
ent ways of achieving more efficient residential building
energy use, by addressing the “efficiency of a building’s
shell,” or “efficiency of a home’s heating equipment,” or “ef-
ficiency of other energy consuming devices.” The credit sys-
tem in Chapter 9 is the subject of the preemption challenge in
this case, because some of its provisions involve use of EPCA
covered products.
Chapter 9 assesses a certain credit value to each option
available to builders who elect the Chapters 5 or 6 pathways.
Chapter 9 contains a menu of options, “Table 9-1,” from
which each builder can choose how best to secure its required
one credit. Wash. Admin. Code § 51-11-0900. Some options
are worth one credit, while others are worth half, one-and-a
half, or two credits each. Large home construction is penal-
ized, because if a builder constructs a home larger than 5000
square feet of floor area, one credit is deducted. Id. A builder
must implement sufficient options in order both to cancel out
the penalty, if applicable, and to earn one net credit.
The Council’s 2009 proposed changes that added Chapter
9 were controversial from the beginning. Industry groups
offered criticism during the period leading up to the Council’s
adoption of the revisions, and objected to what they perceived
as coercion. In a letter to the Council in November 2009, for
example, the Air Conditioning, Heating, and Refrigeration
Institute said that unless the Council supplemented Table 9-1
with additional options, Chapter 9 “could indirectly force
homebuilders to install high efficiency HVAC and water heat-
BUILDING INDUSTRY v. WASHINGTON STATE 7505
ing equipment” in order to earn the required credit. Other crit-
icisms focused on the cost to builders of complying with
Chapter 9. After the Council adopted the changes, the state
Joint Administrative Rules Review Committee faulted it for
providing what it considered an inadequate cost-benefit analy-
sis. See Wash. Admin. Code § 51-11-0900 note. That Com-
mittee recommended that the effective date of the
amendments be delayed. Washington’s Governor, Christine
Gregoire, took up the Committee’s recommendation. Citing
the importance of the construction industry to the recovery of
the state’s economy during a time of deep recession, the Gov-
ernor asked the Council to delay implementing the amend-
ments from July 2010 until April 2011. The Council filed an
emergency rule delaying the effective date, but only until
October 29, 2010. Emergency Rule, Wash. St. Reg. 10-13-
114 (June 21, 2010). Plaintiffs determined litigation was nec-
essary.
This Litigation
Plaintiffs filed this action in May 2010 in the Western Dis-
trict of Washington. In their complaint, Plaintiffs alleged their
businesses would be harmed if the 2009 revisions to the
Building Code were allowed to go into effect, because the
revisions would increase costs of installing appliances and
thereby reduce demand for new home construction. Plaintiffs
sought declaratory and injunctive relief on their claim that the
Building Code was expressly preempted by EPCA, and they
argued it did not satisfy the statutory conditions that provide
a safe harbor from preemption under § 6297(f)(3). Environ-
mental groups supportive of the 2009 revisions moved to
intervene on behalf of the Council. In July 2010, the district
court granted a motion to intervene filed by the Northwest
Energy Coalition, Sierra Club, Washington Environmental
Council, and Natural Resources Defense Council.
Defendants and intervenors (collectively “Defendants”)
then filed a joint motion for summary judgment, arguing that
7506 BUILDING INDUSTRY v. WASHINGTON STATE
the Washington Building Code met all seven statutory condi-
tions for exemption from preemption. The district court sum-
marized the Defendants’ position with respect to each of the
seven conditions as follows:
1) the Washington Code offers builders numerous
options to meet the overall 15% reduction and the
8% energy efficiency requirement, 2) the Washing-
ton Code does not expressly or effectively require
efficiency levels beyond the federal minimum stan-
dards, 3) the Washington Code assigns credits that
are even-handed and not unfairly weighted, 4) the
Code does not require the use of single baseline
building design, 5) the Code offers an evenly bal-
anced range of options, 6) energy savings goal of the
Washington Code is measured in energy use, and 7)
the Code uses federal test procedures to measure
energy use.
Plaintiffs cross-moved for summary judgment, arguing that
Chapter 9 failed to satisfy four of the seven statutory condi-
tions. See § 6297(f)(3)(B), (C), (E), (F). In addition to chal-
lenging compliance with conditions (B) and (C), they also
argued before the district court that Chapter 9 failed condi-
tions (E) and (F), but Plaintiffs do not pursue those latter chal-
lenges on appeal.
The district court disagreed with Plaintiffs and granted
summary judgment to Defendants. All the parties agreed that
Plaintiffs were challenging the enforceability of the Washing-
ton Building Code on the ground that it was preempted
because it failed to satisfy the statutory conditions. There was
no dispute that the Washington Building Code “concern[s] the
energy efficiency or energy use of [EPCA] covered produc-
t[s]” and therefore must satisfy all seven conditions to avoid
preemption. § 6297(f)(3). The district court found that the
Building Code satisfied those conditions and thus was exempt
from preemption. The court rejected Plaintiffs’ argument con-
BUILDING INDUSTRY v. WASHINGTON STATE 7507
cerning subsection (B), noting that Chapter 9 did not require
products “with higher efficiency than mandated by federal
standards as the only way to comply with the Code.” It also
rejected Plaintiffs’ argument concerning subsection (C),
explaining that “[w]hile there is some disparity in credits, the
EPCA does not require identical energy savings. . . . Plaintiffs
have not shown that the variation is so great that the Code
does not meet the requirements of factor (C).”
Plaintiffs timely appeal.
DISCUSSION
This appeal solely concerns whether the Washington Build-
ing Code’s provisions satisfy two of EPCA’s statutory condi-
tions to avoid preemption. Subsection (B) provides that the
code must not require builders to install products more effi-
cient than federal standards would require, while subsection
(C) provides that where a building code grants credits for
reducing energy use, the code must give credit in proportion
to energy use savings, without favoring certain options over
others. We turn first to subsection (B).
Subsection B
[1] Plaintiffs argue that the Building Code’s Chapter 9
does not satisfy EPCA subsection (B), which provides in rele-
vant part that, to survive preemption, the Building Code can-
not “require that the covered product have an energy
efficiency exceeding the applicable energy conservation stan-
dard” established under federal law. 42 U.S.C.
§ 6297(f)(3)(B). Several options under Chapter 9 call for
higher efficiency covered products (options 1a, 2, 5a, and 5b),
and the remaining options do not. Builders can choose. They
do not have to use higher efficiency products.
Plaintiffs acknowledge that Chapter 9 does not legally man-
date use of higher efficiency covered products. Their conten-
7508 BUILDING INDUSTRY v. WASHINGTON STATE
tion is, rather, that the other options are so costly that builders
are economically coerced and hence “required” to select the
higher efficiency options. Defendants counter that an eco-
nomic incentive is not a requirement. We agree that allowing
less expensive, more efficient options does not require build-
ers to use more efficient products within the meaning of the
federal statute. This is apparent from an analysis of the lan-
guage of EPCA, as well as the Supreme Court’s interpretation
of similar language in the preemption clause of another envi-
ronmental statute.
[2] Congress’s use of the word “require” in the statutory
text of § 6297(f)(3)(B) indicates it intended compulsion
backed by force of law. The dictionary definition of the verb
“require” is to “impose a compulsion or command upon (as
a person) to do something; demand of (one) that something be
done or some action taken; enjoin, command, or authorita-
tively insist (that someone do something).” Webster’s Third
New International Dictionary 1929 (1971). This definition
leaves no room for the Plaintiffs’ argument that cost consider-
ations outside the Building Code itself force them to select
higher efficiency options and hence “require” those options.
A requirement would have to be in the Code. The Washington
Building Code itself does not command, demand, or insist
that builders select higher efficiency options. We thus must
conclude that Chapter 9 satisfies subsection (B) in that it does
not require such options.
Plaintiffs nevertheless point to language in the legislative
history, in particular House Report 100-11, stating that the
provisions of § 6297(f)(3) “are designed to ensure that
performance-based codes cannot expressly or effectively”
require installation of higher efficiency products. H.R. Rep.
100-11 at 26 (1987) . Plaintiffs argue that the House Report’s
reference to an “effective” requirement means Congress
wanted to bar states from adopting building codes that exert
even indirect economic pressure to install higher efficiency
options. Congress was concerned, however, with the content
BUILDING INDUSTRY v. WASHINGTON STATE 7509
of a regulation that was within state or local control. The mar-
ket costs of products fluctuate outside the control of those
who promulgate the codes. Congress cannot preempt market
costs. The fact that certain options may end up being less
costly to builders than others does not mean the state is,
expressly or effectively, requiring those options.
The state would effectively require higher efficiency prod-
ucts, in violation of subsection (B), if the code itself imposed
a penalty for not using higher efficiency products. This is
what a building code ordinance for the city of Albuquerque,
New Mexico did. The federal district court for the District of
New Mexico therefore granted a preliminary injunction
against enforcing that ordinance. See Air Conditioning, Heat-
ing, and Refrigeration Institute v. City of Albuquerque, 2008
WL 5586316 (D. N.M. 2008). That court held, in relevant
part, that the ordinance did not satisfy EPCA’s subsection (B),
because the ordinance itself had created a situation in which
the builder had no choice. Albuquerque’s ordinance imposed
costs, as a matter of law, on builders who installed certain
covered products meeting federal standards, by requiring the
builder to install additional products that would compensate
for not using a higher efficiency product. Id. at *2. As the
court explained, “if products at the federal efficiency standard
are used, a building owner must make other modifications to
the home to increase its energy efficiency.” Id. at *9. The
Albuquerque ordinance thus effectively required use of higher
efficiency products by imposing a penalty through the code
itself.
[3] Here, by contrast, the Washington Building Code itself
imposes no additional costs on builders. The district court
noted that there are “substantial differences” between the
Washington Building Code and Albuquerque’s ordinance. It
correctly rejected the Plaintiffs’ argument concerning subsec-
tion (B), explaining that the Washington Building Code cre-
ated no penalties, and did not require higher efficiency
products as the “only way to comply with the code.” We hold
7510 BUILDING INDUSTRY v. WASHINGTON STATE
the Washington Building Code complies with subsection (B)
because it does not create any penalty or legal compulsion to
use higher efficiency products.
This conclusion draws support from the Supreme Court’s
interpretation of another statutory preemption clause intended
to prevent states from creating higher, or additional, require-
ments than those created by federal law. In Bates v. Dow
Agrosciences, LLC, 544 U.S. 431 (2005), the Supreme Court
considered the Federal Insecticide, Fungicide, and Rodenti-
cide Act (“FIFRA”). FIFRA contained a preemption provision
mandating that state law not “impose or continue in effect any
requirements for labeling or packaging in addition to or dif-
ferent from those required under [FIFRA].” 7 U.S.C.
§ 136v(b).
The issue in Bates was whether that provision preempted
state common law claims for strict liability, negligence, fraud,
and breach of warranty. The Fifth Circuit had held that the
state tort claims were preempted on the theory that a jury ver-
dict in favor of the plaintiffs would create an incentive for the
manufacturer to change its label in ways that were in addition
to, or different from, those required under FIFRA. See Bates,
544 U.S. at 436 (citing Dow Agrosciences LLC v. Bates, 332
F.3d 323 (5th Cir. 2003)). The Supreme Court reversed,
rejecting the Circuit’s conclusion that an incentive for change
constituted a “requirement.” The Court said that an event like
a jury verdict might induce a label change, but “[t]he Court
of Appeals was . . . quite wrong when it assumed that any
event, such as a jury verdict, that might ‘induce’ a pesticide
manufacturer to change its label should be viewed as a
requirement.” Id. at 443. The Court concluded that common
law rules governing strict products liability, negligence, and
fraud, may affect the choices that manufacturers make, but are
not state requirements for labeling or packaging, and are thus
not preempted. Id. at 444. Even though verdicts on state tort
claims might create economic incentives to reach the outcome
otherwise forbidden, the Court explained, those incentives do
BUILDING INDUSTRY v. WASHINGTON STATE 7511
not “require[ ] that manufacturers label or package their prod-
ucts in any particular way.” Id. Bates effectively forecloses
Plaintiff’s argument in this case.
Subsection C
[4] Plaintiffs’ challenge to the Washington Building
Code’s compliance with § 6297(f)(3)(C) is more factual. That
subsection of the federal law authorizes a state or local build-
ing code to allow builders to meet energy efficiency objec-
tives through a system of credits for alternative methods to
reduce energy use. Subsection (C) provides that where two
options reduce energy use by equivalent amounts, the build-
ing code must provide credits to those options on a “one-for-
one” basis. § 6297(f)(3)(C). To survive preemption, Washing-
ton’s Building Code must therefore give credits in proportion
to energy use savings without favoring particular products or
methods.
Plaintiffs argued to the district court that Chapter 9 does not
satisfy subsection (C), because the state has assigned the same
value to several options that do not reduce energy use by
equivalent amounts. In support of their motion for summary
judgment, Plaintiffs offered a declaration purporting to show
that the state had assigned credit values that were incorrect or
not equivalent. Ted Clifton, a builder affiliated with one of the
Plaintiff corporations, submitted the declaration stating his
conclusion that options in Chapter 9 would reduce energy
consumption by amounts other than the amounts the state had
assigned. Although the declaration was purportedly based on
Clifton’s experience as a builder, it did not describe how he
reached his conclusions. He opined that the computer models
the State used to estimate and assign credit values were “in-
consisten[t],” used “rough approximations and rounding,” and
were based on “flawed” assumptions.
Defendants, by contrast, offered evidence to show that the
Council used computer models to assign credit values propor-
7512 BUILDING INDUSTRY v. WASHINGTON STATE
tional to the equivalent amount by which each Chapter 9
option would reduce the building’s energy use. The Council
explained it used a model developed by Dave Baylon, an
energy efficiency expert with an energy consulting firm, to
estimate how a building’s energy use will change when differ-
ent components and products are installed. According to the
State’s declarations, that model, known as SEEM, has been
used since 1982 by entities such as the Northwest Power and
Conservation Council (“NWPCC”), and is described as “the
industry standard.”
To explain the use of the model, Defendants provided the
declaration of Tom Eckman, manager of conservation
resources at NWPCC and chair of the Regional Technical
Forum. He described the latter organization as having been
“established by the NWPCC at the request of Congress to
develop standardized methods for verifying conservation sav-
ings.” The State uses computer simulations, Eckman
explained, because “it is not practical to build homes with
every potential combination of energy efficiency measures
being considered for code adoption in order to test their effect
on energy use.” The SEEM model “simulat[es] the impact on
energy use of each of the efficiency options under consider-
ation across a range of home sizes and designs that are repre-
sentative of those being constructed in Washington state.”
According to Eckman, the SEEM model allows the Council
to determine how installing different components and prod-
ucts in the new building will affect its energy use in many sit-
uations. It therefore also allows the State to isolate the energy-
reducing effect of any given component, and assign a credit
value to that component.
[5] The district court, in rejecting Clifton’s declaration,
ruled correctly that Clifton had established no qualifications
to provide expert testimony about the accuracy of the SEEM
model. The party offering expert testimony has the burden of
establishing its admissibility. United States v. 87.98 Acres of
Land More or Less in the County of Merced, 530 F.3d 899,
BUILDING INDUSTRY v. WASHINGTON STATE 7513
904 (9th Cir. 2008). Plaintiffs do not seriously contend on
appeal that the district court should have admitted Clifton’s
declaration. Clifton offered unsupported assertions that the
computer models were wrong, but Plaintiffs offered no data
forming the basis for Clifton’s assumptions or conclusions.
They made no attempt to show his testimony was scientifi-
cally or otherwise reliable. See United States v. Redlightning,
624 F.3d 1090, 1111 (9th Cir. 2010). There was no abuse of
discretion in rejecting the declaration.
[6] Defendants, on the other hand, offered expert declara-
tions that explained the quantitative computer models used in
assigning credit values. The district court considered the
Defendants’ evidence after it found Eckman qualified to offer
expert opinion regarding energy efficiency modeling. It also
concluded that the data that went into the SEEM model was
shown to be accurate. On the basis of the Eckman evidence,
the district court found that the credit of each option is
weighted “based on the energy use saved by each option on
average.” This finding is supported by the expert declarations
and is not clearly erroneous.
Plaintiffs are thus left to quibble over whether the credit
values for Chapter 9’s options are sufficiently proportional to
the amount by which the State’s numbers indicate they reduce
energy use. Plaintiffs, for example, take issue with the Code’s
assigning the same credit value, one credit, to a geothermal
heat pump (option 1b) and a system for ventilating and pre-
venting leakage of climate-controlled air (option 4a). The
State has estimated that, on average, the one-credit options in
Chapter 9 reduce a building’s energy use by eight percent.
Option 1b reduces energy use by six percent, a figure below
the average, and option 4a reduces energy use by about ten
percent, a figure above the average. Plaintiffs appear to con-
tend this is too much variation to satisfy the statute’s require-
ment that credits be awarded on a “one-for-one” basis.
Any credit-based system that involves comparing different
methods of reducing energy, however, may seem like compar-
7514 BUILDING INDUSTRY v. WASHINGTON STATE
ing apples and oranges. Option 1b, geothermal heat pump,
uses the ground to help heat or cool the house in different sea-
sons. Option 4a, ventilator system, supplies an otherwise
well-sealed house with fresh air, while avoiding using energy
unnecessarily to maintain internal climate control. It is unsur-
prising that these methods do not produce identical results in
energy savings.
Indeed, in EPCA, Congress recognized that some variation
will be inevitable, for it speaks in terms of equivalencies. The
statute in subsection (C) requires that the credits be awarded
“one-for-one” where different options bring about savings in
“equivalent energy use or equivalent cost.” § 6297(f)(3)(C).
The covered consumer products differ in many ways, includ-
ing in the kind of energy used—such as gas, electricity, or
geothermal heat. Therefore reductions of energy consumption
in different contexts can be compared meaningfully only
through quantitative estimates. By requiring credits to be
awarded for equivalent energy savings on a “one-for-one”
basis, Congress intended state and local building codes to
assign credit values proportional to the amount of energy
saved, without regard to the method chosen. Plaintiffs sug-
gest, implausibly, that Congress intended a perfect correspon-
dence between energy use saved and credit value awarded.
Yet Congress recognized there are different methods and
measures, and it did not want codes to assign credit values
disproportionately, thereby influencing builders’ choices
where options reduced energy consumption by equivalent
amounts. The Senate Committee Report thus explained that
credits are to be given, “to the greatest degree possible, one-
for-one equivalency between the energy efficiency of these
differing measures.” S. Rep. No. 100-6 at 10.
[7] The district court correctly ruled that the credit values
in Chapter 9 are closely proportional to the average reduction
in equivalent energy use across a variety of climatic and other
environmental situations. Certain installation options may
result in greater energy savings than other options in certain
BUILDING INDUSTRY v. WASHINGTON STATE 7515
climates or certain size buildings. In requiring that credits be
awarded on a one-for-one equivalent energy use basis, Con-
gress intended not mathematical perfection, but rather pre-
venting the building code from discriminating between
products and building methods. Chapter 9 of the 2009 Wash-
ington Building Code achieves this objective by awarding
credits for average equivalent energy use for each option in
different use situations. Chapter 9 of the Washington Building
Code thus satisfies EPCA subsection (C).
CONCLUSION
[8] The district court did not err in granting summary judg-
ment to Defendants. The Washington Building Code satisfies
the conditions Congress set forth in EPCA for exemption
from federal preemption.
AFFIRMED.