By a 33 to 25 vote, the House Energy and Commerce Committee last week approved legislation that would limit greenhouse-gas emissions and create a national building code that completely supplants the national model code development process.

Prior to consideration of H.R. 2454, the American Clean Energy Security Act, NAHB sent a letter to members of the committee expressing the association's concerns over the federal preemption of states' rights to determine building codes.

"NAHB is concerned that H.R. 2454 violates state and local rights to establish building codes and efficiency targets within their jurisdiction," the letter said. "We regret that the committee did not consider NAHB's testimony presented on April 24, 2009, and that we must oppose this legislation. H.R. 2454 is unnecessarily prescriptive, falls short of creating an effective energy policy that is constitutional and endangers housing affordability."

The House committee approved new measures to establish a national energy code administered by the Department of Energy (DOE) that comes complete with enforcement penalties and civil action against home owners and builders occupying non-compliant homes and buildings.

NAHB, along with a handful of other real estate groups, supported an amendment offered by Rep. Steve Scalise (R-La.) to strike the egregious language, but it failed on a party-line vote of 31 to 20.

The new building code provisions in HR. 2454 provide for the following:

• New national energy efficiency targets taking effect on the date of the bill's enactment that require states and localities to prove code compliance at 30% above the 2006 International Energy Conservation Code (IECC) level. By Jan. 1, 2014, the new target would be 50% above the 2006 IECC. Between years 2017 and 2029, the code target increases 5% every three years until it reaches 75% above the 2006 IECC by 2029.
• The Department of Energy secretary can set interim code targets, as long as they are higher and based on the life-cycle of the home, not on economics or the payback to consumers.
• Within one year after the date of enactment, a national building code will be established. States are required to adopt the national code within one year from that date, they can adopt a state code that is equally stringent or they can adopt California's Title 24 building code within two years.
• If after one year the DOE doesn't have a certification from a state that its code meets the targets, then the national energy code automatically becomes the applicable building code for that state or locality.
• Federal violations will be levied against builders or owners of a building if they permit occupancy of a home or building that is out of compliance with the national energy targets, even if the state refuses to adopt the new code, because the national building code will be in effect regardless.
• If a state or locality is out of compliance with the codes, it will not receive emission allowances under any cap and trade plan. Also, states will lose federal funding from other parts of the bill on a sliding scale for each year of non-compliance.
• If a state or locality fails to enforce either a compliant code or the national building code, then the DOE will enforce codes federally through "inspections" and enforcement fees.
• The DOE will also assess a civil penalty for violators of this section. Each day of unlawful occupancy is considered a separate violation. If the home is constructed out of compliance with the provisions of this bill and it has been conveyed by a knowing builder or a knowing seller to an unknowing purchaser, then the builder or seller is the violator. The U.S. District Court has jurisdiction for all legal issues.

To read the legislation, click here.

It is unclear when the bill will go to the House floor. NAHB will continue to monitor the situation closely. For more information, e-mail Elizabeth Odina at NAHB, or call her at 800-368-5242 x8570.

Source: National Association of Home Builders, May 25, 2009