Green Energy & Development Law Blog : Green Building & Development Lawyer & Attorney : Brad N. Mondschein : Pullman & Comley Law Firm

The California Attorney General filed a lawsuit against Fannie Mae and Freddie Mac for essentially blocking California's PACE initiative.  The PACE (Property Assessed Clean Energy) program stimulates the economy and promotes energy independence by assisting homeowners and small businesses in securing funding to make their properties more energy efficient. Property owners repay the costs of energy improvements through assessments spread out over a decade or more. Under California law, these costs are classified as tax assessments.

Last week, Fannie Mae and Freddie Mac put a huge damper on PACE Bond efforts nationwide by characterizing PACE assessments as loans that must be subordinate to their own mortgages. The Federal Housing Finance Agency affirmed Fannie and Freddie's decision on July 6 over the objections of PACE Bond advocates and congressional leaders.

Almost half the counties in California have developed PACE programs or plan to start one. California risks losing more than $100 million in federal stimulus money. One example of the effects of this: San Diego planned to launch a PACE program this summer but it has now been suspended indefinitely, leaving more than 100 people trained in energy retrofits without jobs.

In his lawsuit, Brown asks the court to apply California law, require Fannie Mae and Freddie Mac to recognize PACE assessments for what they are.

The lawsuit is here.
 

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In an unusual lawsuit, a convicted felon lost his challenge to Brevard County's weatherization assistance program which denies assistance to certain felons and sex offenders.  The person, Raymond Houston, is a convicted felon and sex offender.

The court denied Mr. Houston's claim for assistance because (1) there is no individual right to weatherization assistance under federal law, (2) the denial was not a violation of equal protection rights because the state and county had a rational basis to limit funds to law-abiding persons, (3) the denial was not a bill of attainder because the denial does not inflict guilt on an already convicted person, and (4) the rule is not an ex post facto law because it has a rational basis and is not punitive.  Finally, the state law breach of contract claim was remanded to the state courts for resolution.

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The New Mexico Federal District Court issued a Preliminary Injunction against enforcement of the new Green Building Codes of the City of Albuquerque.  The Plaintiffs are local and regional distributors of heating, ventilation, air conditioning and water heating products and three national trade associations that represent the manufacturers, contractors, and distributors of these products (The Air Conditioning, Heating and Refrigeration Institute, the Heating, Air Conditioning, and Refrigeration Distributors International and Air Conditioning Contractors of America).  The Plaintiffs assert that the City of Albuquerque ordinances impose minimum energy efficiency standards for commercial and residential building that are more strict than required by federal regulations and therefore federal regulation pre-empt the ordinances.   The Court ruled that the federal regulations relating to building energy efficiency, appliance efficiency and HVAC efficiency pre-empt local ordinances which require either stricter standards or require that, if federally compliant appliances are utilized, that other building modifications be made to increase overall energy efficiency of the buildings.

The City of Albuquerque approved a new Green Building Code which became effective on October 1, 2008 which sets forth increased energy efficiency requirements for the building industry.  Volume I of the Code applied to commercial and multi-residential buildings.  The Code adopts ASHRAE 90.1-2004 with a few amendments.  The code applies to new building, additions to existing buildings and alterations to existing buildings.  For HVAC replacements in existing buildings, the code requires that the building owner could still utilize HVAC units that meet federal energy efficiency requirements, but then must replace or modify other building components to either meet LEED Silver or 30% energy efficiency improvements over ASHRAE 90.1.

In addition to Volume 1, the City also adopted the High Performance Building Ordinance which applies to new buildings and existing buildings undergoing alterations when the work area exceed 50% of the building area.  This Ordinance requires compliance with Volume 1 of the Code.

All of these ordinances are subject to the injunction.

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