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The Energy Policy and Conservation Act of 1975 does not preempt the Washington Building Code, because the Code “satisfies the conditions Congress established for enforcement of state and local building codes consistent with federal energy law.”

The Building Industry Association of Washington, along with individual builders and contractors (collectively, the “BIAW”), sued the Washington State Building Code Council, challenging Washington Administrative Code § 51-11-0100 et seq. The BIAW alleged that the particular section, which created energy conservation goals higher than those in the Energy Policy and Conservation Act of 1975 (“EPCA”), violated the EPCA’s preemption-exemption provision. The BIAW further alleged that the state’s credit allocation system for energy reduction did not meet federal standards. To avoid preemption under the EPCA, a state’s building code must meet seven conditions under § 6297(f)(3)(A)-(G). At issue were § 6297(f)(3)(B), stating that a state’s energy code cannot require a product to be more efficient than the federal code requires, and (C), establishing a system for allocating credits based on energy use or cost. First, the Washington Building Code requires builders to reduce their energy consumption by a certain amount and lists several options by which a builder may accomplish this goal. One of the options includes the use of products that are more energy-efficient than the federal code requires. The Ninth Circuit held that because these products are listed as options, not as requirements, the provision does not violate § 6297(f)(3)(B) of the EPCA. Second, § 6297(f)(3)(C) provides that a credit system must allocate credits based on how much energy or cost is reduced, and that credits be allocated on a “one-for-one equivalent energy use or equivalent cost.” The Court rejected the BIAW’s argument that the Washington system is not on a one-for-one basis. This claim was based on the testimony of one witness who the lower court deemed unqualified. AFFIRMED.