Building Industry Ass'n v. Washington State Building Code Council

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.