Clean Air Council challenges state panel to adopt new building codes
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Jon Hurdle
AP Photo/Keith Srakocic
Pennsylvania's air quality has been hurt by the state's failure to adopt new building codes, a lawsuit says
Environmentalists are suing Pennsylvania in an effort to force the adoption of updated building codes that would result in significant energy savings and help the state meet new federal standards on CO2 emissions.
The suit by the Clean Air Council against the Department of Labor and Industry says a department-administered panel that reviews national building codes violated state law by summarily rejecting 2015 standards from the International Code Council, whose codes are used throughout the U.S.
The plaintiffs are asking the Commonwealth Court to direct the panel, the Uniform Construction Code Review and Advisory Council (RAC), to adopt the new codes, reversing its rejection of nearly all of them on May 20.
The suit also asks the court to strike down Act 1, a 2011 state law that requires the RAC to individually affirm or deny hundreds of changes in the building code, a system that the Council says is excessively time-consuming and effectively prevents adoption of most changes.
In its deliberations on the 2015 code changes, the panel rejected all but 16 of the 1,900 changes published by the ICC, the suit said. The ICC updates its codes every three years.
“The RAC did no analysis, held no discussion and provided no reasoning for its decision to reject the remaining 1,884 code provisions except for general statements that the process set forth in Act 1 as interpreted by the Department was so flawed that more than a handful of code changes would be impossible to comply with or enforce,” the Clean Air Council said in its 33-page complaint, filed on June 19.
The law, the first to be signed by former Gov. Tom Corbett, amended a 1999 statute that allowed code changes to be automatically adopted unless the RAC – whose 19 members are appointed by the governor — specifically rejected them.
Opponents of the new law argue that it is designed to minimize changes to the building code, and has resulted in Pennsylvania operating on codes that were last updated in 2009 and have lower standards for energy efficiency than the updated version.
“The fact that it was switched from an ‘opt out’ to an ‘opt in’ could lead an objective observer to the belief that it was intended to minimize changes,” said Logan Welde, a staff attorney with the Clean Air Council.
Welde argued that RAC members, all but four of whom represent different branches of the construction trades, may also have been deterred from making changes by the prospect of added costs.
“The bottom line is that new codes make the cost per square foot of building, whether commercial or residential, a bit more expensive,” Welde said. The remaining four members of the panel are elected officials.
If the court strikes down Act 1, the plaintiffs believe it would be replaced by Act 45, the 1999 law that allowed the state to automatically update codes unless they were specifically rejected by the RAC, Welde said.
RAC members could not be reached for comment.
In its complaint, the Council argues that the panel’s rejection of the new standards has left Pennsylvania with outdated building codes that waste energy and subject residents to harmful emissions at a higher level than would have been the case if the state had adopted the new codes.
“The RAC’s failure to adopt the 2015 building codes consigned a new generation of buildings constructed throughout the Commonwealth to be built under antiquated building codes with outdated energy efficiency standards,” the suit said.
“The perpetuation of outdated energy standards means that Pennsylvanians will continue to suffer from needlessly excessive pollution both from onsite energy equipment and electrical power generation facilities.”
Adoption of the new standards would help Pennsylvania meet the required 30 percent reduction of the federal Clean Power Plan for power station emissions, whose regulations are expected to be issued in July or August, said Russell Zerbo, advocacy coordinator for the Council.
Mark Alan Hughes, director of the University of Pennsylvania’s Kleinman Center for Energy Policy, said Pennsylvania was previously one of the first states to adopt ICC codes when they were issued but, because of Act 1, the state is now falling behind in efforts to reduce energy consumption in buildings.
Hughes argued that energy efficiency of buildings, which account for about 40 percent of total consumption, can be improved by 10-30 percent through the kinds of measures that are built into modern building codes.
Act 1 has slowed the process of approving code changes, he said. Compared with the previous system that allowed the automatic adoption of international standards, officials are now required to use a much more “localized” process that requires a two-thirds majority, making it “extremely” difficult to make changes.
“It puts the burden of adoption on individual elements of the new code rather than simply adopting the new code as an integrated whole,” Hughes said.
Sara Goulet, a spokeswoman for the Department of Labor and Industry, said the department does not comment on pending litigation.
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