Cooperative Federalism Archives - Columbia Law Review

Introduction A bevy of potential climate change legislation is frozen in Congress.[footnote]See Scott Peters, The Climate Playbook, https://scottpeters.house.gov/climate playbook/ [https://perma.cc/4KCX-5MJ5] (last visited July 21, 2021) (listing over one hundred bills that target climate change).[/footnote] But while major climate measures, from cap-and-trade to a carbon tax, are politically incendiary,[footnote]See Randy Showstack, Can Bold U.S. Federal Climate Legislation Be Enacted Now?, Eos (June 7, 2019), https://eos.org/articles/can-bold-u-s-federal-climate-legislation-be-enacted -now [https://perma.cc/ZB5K-BRKC] (contemplating whether the political composition in Washington, D.C., can pass major climate change legislation).[/footnote] there are facets of climate policy that are more palatable and no less critical.[footnote]See Justin Gillis, Opinion, Forget the Carbon Tax for Now, N.Y. Times (Dec. 27, 2018), https://www.nytimes.com/2018/12/27/opinion/carbon-tax-climate-change.html (on file with the Columbia Law Review ) (“The single most important climate policy in the world might be the efficiency regulations that the American government imposes on cars and trucks . . . .”).[/footnote] Among these is energy efficiency, which has the capacity not only to mitigate climate change but also to stimulate economic growth and improve energy security.[footnote]See Audrey B. Chang, Arthur H. Rosenfeld & Patrick K. McAuliffe, Energy Efficiency, in Climate Change Science and Policy 433, 433–35 (Stephen H. Schneider, Armin Rosencranz, Michael D. Mastrandrea & Kristin Kuntz-Duriseti eds., 2010) (discussing the benefits of energy efficiency).[/footnote] Moreover, increased energy efficiency measures are practicable today: The research exists, and the technology is available. Or, as Nobel Prize–winning physicist and former Secretary of Energy Steven Chu put it, “The quickest and easiest way to reduce our carbon footprint is through energy efficiency. Energy efficiency is not just low-hanging fruit; it is fruit that is lying on the ground.”[footnote]Secretary Chu Opinion Piece in Times of London, Dep’t of Energy (May 27, 2009), https://www.energy.gov/articles/secretary-chu-opinion-piece-times-london [https://per ma.cc/7K9J-TENT].[/footnote] Within the realm of energy efficiency, the building sector is particularly promising. Buildings have a long life expectancy, and they are responsible for forty percent of all energy use both in the United States and worldwide.[footnote]Lee Paddock & Caitlin McCoy, New Buildings, in Legal Pathways to Deep Decarbonization in the United States 256, 257 (Michael B. Gerrard & John C. Dernbach eds., 2019).[/footnote] Additionally, U.S. buildings alone account for nine percent of the world’s greenhouse gas (GHG) emissions.[footnote]Id. In order to achieve decarbonization goals, the Deep Decarbonization Pathways Project, a research initiative aimed at pathways to achieve a carbon neutral world by the second half of the century, calls for reducing annual carbon dioxide emissions of residential and commercial buildings from 1,995 million metric tons in 2014 to, at most, 260 million metric tons in 2050. See James Charles Smith, Existing Buildings, in Legal Pathways to Deep Decarbonization in the United States, supra note 6, at 277, 279.[/footnote] Increasing energy efficiency in buildings by adopting stronger building energy codes, then, can go a long way. It is estimated that between 1992 and 2040, buildings that meet energy code requirements will avoid almost 3.5 billion metric tons of carbon dioxide emissions, relative to historical building emissions levels.[footnote]See OV Livingston, DB Elliott, PC Cole & R Bartlett, Pac. Nw. Nat’l Lab’y, Building Energy Codes Program: National Benefits Assessment, 1992–2040, at 5.5 (2014), https:/ /www.energycodes.gov/sites/default/files/documents/BenefitsReport_Final_March20142.pdf [https://perma.cc/9FLP-4PLK].[/footnote] In addition, in that same timeframe, energy efficient buildings can save U.S. home and business owners over $230 billion.[footnote]Id. at 5.1; see Annual Energy Outlook 2020: Table: Table 2. Energy Consumption by Sector and Source, U.S. Energy Info. Admin., https://www.eia.gov/outlooks/aeo/data/ browser/#/?id=2-AEO2020&region=1-0&cases=ref2020&start=2019&end=2020&f=A&line chart=ref2020-d112119a.3-2-AEO2020.1-0&map=ref2020-d112119a.5-2-AEO2020.1-0&sour cekey=0/ [https://perma.cc/ZT9E-64X7] (last visited July 21, 2021).[/footnote] Yet, despite the opportunity for emissions reductions and cost savings that the building sector presents, states have relaxed—not strengthened—their building codes, by updating them less frequently or making them less stringent.[footnote]Lauren Urbanek, The Climate Is Changing. So Why Aren’t State Building Codes?, NRDC (Apr. 4, 2018), https://www.nrdc.org/experts/lauren-urbanek/climate-changing-why-arent-state-building-codes/ [https://perma.cc/T66Z-Y7XL]; see also Elizabeth Ouzts, North Carolina Panel Moves to Weaken Building Energy Conservation Rules, Energy News Network (Jan. 7, 2021), https://energynews.us/2021/01/07/southeast/north-carolina-panel-moves-to-weaken-building-energy-conservation-rules/ [https://perma.cc/NLJ5-F5WY].[/footnote] Additionally, because building code regulation occurs mostly at the state level, the topography of energy efficiency standards follows a familiar pattern in environmental law: While some states have statewide codes with ambitious clean energy targets, other states have no such codes at all.[footnote]See infra section I.A.2.[/footnote] And even in the states with strong building energy codes, compliance levels are scattered, leaving significant room for improvement.[footnote]See infra section II.A.2.[/footnote] The current regulatory landscape of building codes is thus insufficient for realizing the full scope of the environmental benefits and energy and cost savings that are available. This Note seeks to provide a viable framework that both capitalizes on existing regulatory structures and respects state and local authority, while also examining the potential for greater federal involvement in the regulation of building energy codes. Part I describes the regulatory structure of building energy codes and the involvement of the local, state, and federal governments. It also provides a brief discussion on the federalism challenges that complicate environmental law. Part II discusses the failings of the current building code regulatory structure at the local, state, and federal levels. Part III makes the argument that there can and should be greater federal involvement, proposes a model of cooperative federalism that addresses the existing flaws in the regulatory scheme, and explores the consequences of the proposed scheme.