UCLA Law Clinic Files Brief Supporting DC’s Clean Buildings Act in DC Circuit

Energy law experts explain local governments’ longstanding primary authority over local gas distribution and use.

Last Friday, UCLA’s Frank G. Wells Environmental Law Clinic filed a DC Circuit brief in support of the District of Columbia’s Clean Buildings Act on behalf of 11 leading energy and environmental law professors: UCLA’s own William Boyd, Lincoln Davies at the University of Utah, Dan Farber and Sharon Jacobs at UC Berkeley, Alexandra Klass at the University of Michigan, Joshua Macey at Yale, Heather Payne at The Ohio State University, Melissa Powers at Lewis & Clark, Jim Rossi at Vanderbilt, David Spence at the University of Texas, and Shelley Welton at the University of Pennsylvania. DC’s Clean Buildings Act provides that builders cannot use fossil fuels for on-site combustion in certain newly constructed or substantially improved buildings.

This case National Association of Home Builders v. DC is one of several pending before federal courts involving industry groups’ challenges to local building decarbonization policies. The industry groups are arguing that the state and local policies are preempted by the federal Energy Policy & Conservation Act (EPCA).

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.

Our brief delves into the longstanding historical precedent and policy rationale for the primary jurisdiction of states & localities over local energy distribution and use. (Federal jurisdiction, meanwhile, is focused on interstate energy transport.) In addition to the traditional Constitutional federalism arguments, the brief also delves into the unique position of DC as a federal enclave, where Congress explicitly delegated police powers including utility regulation to the local government.

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.