Shari Shapiro

Efforts over the past decade to increase energy efficiency through building codes holds lessons that can be applied to any type of controversial regulation.

Until about 2007, building code policy was a sleepy, inside-baseball regulatory backwater. In most states, building codes are based on model codes developed by non-profit, third-party code developers, like the International Code Council and the National Fire Protection Association. These model codes are typically updated every three years. For the most part, a state (or, in some cases, municipal) committee of construction industry experts reviews the model code changes and makes recommendations to the agency that regulates construction. That regulatory agency then enacts the new code through regulation.

Most jurisdictions’ building codes include a code related to energy efficiency primarily based on the International Energy Conservation Code (IECC), which is the model code setting a minimum level of energy efficiency for new building construction.

From 1992 through 2006, the standard for achieving “energy efficiency” required under this model code was pretty much static. At some point in the mid-2000s, however, energy efficiency advocates realized that building energy codes were an avenue for significantly increasing energy efficiency without requiring legislative change.

As a result of these advocates’ efforts, the model code provisions increased the required energy efficiency for new buildings in 2009 by 15% over the 2006 model code, and the 2012 code increased efficiency another 15% over the 2009 code. In total, this amounted to a 30% boost in the mandated energy efficiency of new buildings over the course of six years.

However, actually realizing the benefits from these increasingly efficient codes has not been easy. Citing the recession, increased costs, and lack of consumer demand for energy efficient construction, builders in many states have opposed the adoption of the more efficient standards contained in the model code. Design professionals, builders, and code officials are not uniformly well trained in energy efficient construction and on energy code requirements. Furthermore, because energy codes do not relate to the historic aim of protecting the health, safety, and welfare of the public from dangerous building practices, there is lax enforcement of energy code requirements.

Faced with these obstacles, advocates for increasing the energy efficiency of buildings have developed a variety of creative approaches for achieving their objectives. Three of these initiatives offer lessons for others in any regulatory realm that faces similar opposition.

The first initiative preserves statewide uniformity but allows for local experimentation. For builders, uniformity and predictability are the primary advantages of reliance on model codes and their statewide adoption. But Massachusetts has developed an interesting model for retaining these advantages while addressing resistance to increased building code efficiency.

Massachusetts has adopted the 2009 IECC model code statewide, but officials there wanted to go further. Instead of adopting the more demanding energy efficient provisions of the 2012 code statewide, Massachusetts developed a “stretch” energy code. The stretch provisions in its latest state code are 20% more energy efficient than the 2009 IECC. Yet, because these are stretch goals, municipalities in Massachusetts may adopt the more stringent standards as applicable in their municipality, but they are not required to do so.

By providing one approved alternative, Massachusetts retains the benefits of having a consistent code statewide, while also allowing local experimentation and early adopters to demonstrate the feasibility of new regulations. As of the end of 2013, 143 Massachusetts municipalities, including Boston, have adopted the stretch goals. Not only has the Massachusetts code already yielded energy efficiency benefits in those municipalities where the more demanding standards have been adopted, but it has also paved the way for acceptance of increased energy efficiency in future code adoption cycles.

A second innovative approach involves leveraging financial incentives—using the “power of the purse.” For example, at the federal level, the Department of Energy determined that the 2009 IECC represented such a significant increase in building energy efficiency that it should be adopted throughout the country. However, building regulation falls within the jurisdiction of state and local governments, so the federal government lacks direct authority to require the adoption of mandatory standards for new building construction. But the federal government can certainly influence these standards by using its financial leverage.

In 2010, the Department of Energy decided to tie American Recovery and Reinvestment Act funding to adoption and enforcement of the 2009 IECC. Interested in obtaining this funding, governors from all 50 states signed commitments to adopt the 2009 IECC and achieve 90% compliance with it by 2017. While this 90% target will probably never be achieved, it increased adoption and compliance efforts significantly.

Another creative use of financial incentives has occurred at the state level. Several state public utility commissions now allow utilities to fund energy code-related activities as part of their mandated energy efficiency programming. California has done so for decades. More recently, Ohio, Arizona, Rhode Island, Massachusetts, and several other states have implemented similar programs.

Utility-funded energy code programs have taken different forms, including funding for training design professionals, builders, and code officials, funding for compliance collaboratives, and incentives to cover first costs associated with construction to higher efficiency levels. These code programs have been highly cost effective ways to increase energy efficiency.

Finally, the third innovative approach focuses on improving compliance with efficiency standards by institutionalizing stakeholder coalitions. Adoption of an energy efficient building code is meaningless without compliance and enforcement efforts—something that, in almost every state, local jurisdictions are charged with implementing. That means that advocacy for improving actions like builder education and government enforcement must also happen at the municipal level. For advocates, this requires significant investment of time, money, and political will.

In addition, increased energy efficiency through building codes is only a small part of the already-full agendas of many different stakeholders, from manufacturers of energy efficient building products to environmental groups. To make a difference, then, stakeholders must pool their resources and forge coalitions to advocate for more energy efficient codes.

To address these issues, the Building Codes Assistance Project in Washington, D.C. has been working to promote the establishment of “Energy Code Collaboratives” across the country. These Collaboratives—and I facilitate the one in Pennsylvania—are designed to be permanent, ongoing institutions that bring together stakeholders from across the construction and energy industries to promote compliance with energy codes. By strengthening the ties between organizations with common interests, these Collaboratives help build support for ensuring that any improvements in mandated standards in fact lead to real improvements in energy efficiency.

The challenges facing advocates of energy efficiency in the building sector are no doubt similar to the challenges facing advocates in other areas of regulation, especially during a period when claims about regulatory costs have grown more salient. But if advocates think creatively, they can continue to advance their goals. By allowing opportunities for local experimentation, linking policy goals to financing, and strengthening their own coalitions, advocates of energy efficient building codes have continued to make progress even during harder times.

Article originally appeared in RegBlog.