Breaking Code: Activists Take On Regulators

Activists Take On Regulators

\ Apr 18, 2013

5 min read

As citizens and environmental advocates from across the globe prepare to celebrate Earth Day this week, activists in the Land of Enchantment are squaring off against state construction regulators over building codes. Environmentalists are accusing regulators of side-stepping the law by refusing to comply with a New Mexico Court of Appeals ruling concerning the codes.

Last week, the New Mexico Environmental Law Center (NMELC) filed a motion asking the State Appeals Court to hold the state Construction Industries Division in contempt, after they issued a press release stating that it would continue to enforce revised building codes the court set aside earlier this month.

"I have never seen a situation in which somebody, anybody, has announced in a press release that they were going to violate a court order. That is completely and totally unheard of," said Doug Meiklejohn, executive director of NMELC.

The feud began nearly two years ago after the Construction Industries Commission decided to revise the eco-friendly codes adopted by former Democratic Gov. Bill Richardson’s administration. At the time, the Richardson codes were some of the strongest in the nation, requiring new construction to be 20 percent more energy-efficient than the previous code.

With very little public comment and in the absence of public hearings, the Construction Industries Commission—made up of Gov. Martinez appointees—voted seven to one to repeal the codes. That decision was in accordance with the Governor’s Small Business-Friendly Task Force’s opinion, which concluded that rolling back the codes to meet but not exceed national standards was beneficial to small businesses.

In an effort to contest the weaker standards, NMELC filed a lawsuit against the commission in state appellate court in July 2011.

Patrick Casey of C5 Construction is the lone commissioner who voted against the 2011 revisions. He said his vote was a symbolic gesture against the proceedings and believes the commission should’ve rolled back the codes to a time with less energy conservancy requirements.

“It could cost anywhere from $4,000 to $10,0000 to meet that code or possibly more depending on the type, style and size of the home being built. To put a price on it is definitely tough to do, but it is definitely more expensive to build that way,” Casey said.

The notion that it costs more money to build energy efficient structures is not supported by evidence, according to Tammy Fiebelkorn, the New Mexico Representative for Southwest Energy Efficiency Project.

“Those allegations are strictly false. The analysis that was done on the original codes showed that there was a net savings for building owners under that code. The analysis was very thorough and it was based on cost data provided by builders and energy use data that was approved by the entire committee,” Fiebelkorn said.

Developing the Richardson codes was a time-consuming, collaborative process that involved weekly meetings with public interest groups, the construction industry and regulators. In contrast, the 2011 revisions had little or “no public process or analysis of any sort,” according to Fiebelkorn.

The codes regulate construction of new buildings and large renovations of old ones, and are projected to reduce energy use in New Mexico by approximately 20 percent, which Fiebelkorn says would save New Mexican property owners nearly $66 million over the next 10 years.

But the claims of savings are shortsighted, only easy to substantiate on paper and not grounded in reality because they fail to consider how people live their lives, Patrick Casey said.

“One of the problems with the Richardson code is that they said it will save people on average $16 a month and that is fine and dandy, but if you have to build a house that costs more money, those people you may be trying to help may not be able to afford that house to save that $16.”

Lynne Andersen is president of NAIOP, a trade association for commercial developers and realtors. She shares Casey’s sentiments when it comes to the validity of the data presented. She says implementation of the Richardson codes would be unfair to all involved, especially the consumer, and believes the codes will have a negative impact on the state’s struggling economy.

“If the Richardson codes are enforced, we will be very uncompetitive in the region in terms of new jobs and new construction,” Andersen said.

Doug Meiklejohn said he doesn’t know how long it will take the court to rule on NMELC’s recent motion, but he and his clients are preparing for a tough fight.

Although home renovations are governed by the same controversial building codes as new construction, New Mexicans should have no problem applying for and receiving state and federal energy efficiency incentives for clean energy renovations. The incentives range from $200 tax credits to non-taxable transaction certificates to purchase equipment costing up to $9,000.