Michele J. McDonald, Chair Vol. 2, No. 1 January 2013 Peter W. Sheehan, Jr., Editor Maryland State Bar Association, Inc. Chair’s Column By Michele J. McDonald, Chair
reetings! This has been a busy year for the Admin- Also, you may wish to avail yourself of the scholarship avail- istrative Law Section Council. able in the bi-monthly journal JOTWELL – The Journal of G Things We Like (Lots). The journal contains short reviews First, let me welcome and introduce the new section council of important or interesting (maybe both) administrative law members. We are pleased that the Honorable Lynne Battaglia, scholarship. This journal is free and sponsored by the Uni- Maryland Court of Appeals, and Peter Sheehan, Whiteford, versity of Miami School of Law. It may be found at http:// Taylor & Preston, have joined the section council. We also adlaw.jotwell.com. welcome back to the council Laura McWeeney, University of Maryland University College. Finally, the administrative law section council seeks your input and participation. Second, under Jack Gohn's esteemed leadership last year the section commenced a minutes recovery project. Minutes If you are interested in serving on the administrative law from the last fi ve years are available on the section's webpage section council, please send a resume and a statement of at http://www.msba.org/sec_comm/sections/admin/ under interest to Nathan Greenbaum, membership committee chair, the Minutes tab. Many thanks to Jack and everyone else at [email protected]. who contributed to the success of this project. If you have suggestions for the improvement of the section's Third, after a brief hiatus, the section newsletter is up and webpage please email them to John Gabel, technology com- running under the skillful editorship of Peter Sheehan. If mittee co-chair, at [email protected]. you would like to contribute an article, please review the submission guidelines posted on the section's webpage at If you would like to nominate someone for the John W. http://www.msba.org/sec_comm/sections/admin/ under the Hardwicke award, based on his or her outstanding contribu- Newsletter tab and submit your article to Peter at psheehan@ tions to the fi eld of administrative law, please contact Bruce wtplaw.com. Martin at [email protected].
Please save the date, April 16, 2012, for the Administrative My sincere thanks to our outstanding council members Law CLE program exploring the nuts and bolts of administra- for their hard work and dedication to the section and to tive law practice at the federal, state and local levels. Over a administrative practice. We look forward to seeing you at dozen judges and practitioners will share their best practice our events and to hearing from you. Enjoy the surprisingly tips. Test your administrative law trivia during our luncheon warm January. program with Judge Lynne Battaglia who will present, "Are You Smarter Than a Law Clerk." The Program will be held at the Judiciary Education and Conference Center in Annapo- Michele J. McDonald lis beginning at 9:00 a.m. (8:00 - 9:00 a.m. registration and Chair (again) continental breakfast). Stay tuned for more details. Does a federal court have the authority to require a Maryland circuit court to disregard Maryland’s law regarding the minimum requirements for quasi-judicial and quasi-legislative decisions?
By G. Macy Nelson, David S. Lynch, and Michael I. Kroopnick
Maryland law describes the differences between a quasi- say, Scarlett & Co., Inc. v. Comptroller; 302 Md. 825, 834 judicial and a quasi-legislative decision. A quasi-judicial (1985). A failure to meet either of these standards requires a decision makes factual fi ndings that “usually answer reversal of the decision. Bond v. Dep’t of Pub. Safety & Corr. the questions of who did what, where, when, how, why, Servs., 161 Md. App. 112 (2005) (court reversed termination with what motive or intent….” Montgomery County v. of employee because ALJ’s conclusion that appellant used Woodward & Lothrop, Inc., 280 Md. 686, 712 (1977) or possessed marijuana while at work was not supported by (citations and quotation marks omitted). By contrast, a substantial evidence); People’s Counsel for Balt. County v. quasi-legislative decision reaches factual fi ndings that “do Md. Marine Mfg. Co. Inc., 316 Md. 491, 497 (1989) (court not usually concern the immediate parties but are general will not uphold an “administrative decision which is premised facts which help the tribunal decide questions of law and solely upon an erroneous conclusion of law”). policy and discretion. The difference, broadly speaking, involves whether the decision is to be made on individual One challenges a quasi-legislative decision by a declaratory or general grounds.” Id. (citation omitted). judgment action that invokes the circuit court’s original jurisdiction. Bethel World Outreach Church v. Montgomery Different rules govern how one challenges each type of deci- County, 184 Md. App. 572, 596-97 (2009). A reviewing court sion. One challenges a quasi-judicial decision by a judicial evaluates whether the decision-maker acted within “its legal review action where the court reviews the record, considers boundaries.” County Council of Prince George's County v. the parties’ briefs, conducts an oral argument, and issues a Offen, 334 Md. 499, 507 (1994). Discovery is permitted. written opinion. There are two types of judicial review ac- tions. Where a statute authorizes an appeal, the law requires Often, there is ambiguity as to whether a decision is quasi- a judicial review action pursuant to Md. Rule 7-200, et seq. judicial or quasi-legislative. Decisions regarding county even if the decision appears to be legislative in nature. County water and sewer plans exemplify this ambiguity. Council for Prince George's County v. Freeman Assocs. Inc., 281 Md. 70 (1977). Where the decision is quasi-judicial and State law requires every county to maintain a water and sewer no statute expressly authorizes an appeal, the law requires a plan that provides for water and sewage systems and facilities. Petition for Administrative Mandamus pursuant to Md. Rule Md. Code (1982, 2007 Repl. Vol.), Environmental Article 7-400, et seq.1 The procedure is the same for both types of (“Envt. Art.”) § 9-503(a). COMAR 26.03.01.04 requires judicial review. Md. Rule 7-402 (incorporating Md. Rules each county to assign its land to one of six different water and 7-202 – 207). sewer categories. The categories include land that has public water and sewer, land for which the county does not plan to A quasi-judicial decision must articulate in writing what the serve with public water and sewer, and land which is eligible decision-maker decided and why. Mehrling v. Nationwide to receive public water and sewer. If a developer wishes to Ins. Co., 371 Md. 40, 62-65 (2002). Reviewing courts remand develop land for which the county has not planned public to the decision-maker a decision that fails to meet this stan- water and sewer, the developer must apply to change the dard. Bucktail, LLC v. County Council of Talbot County, 352 water and sewer category of the land. The water and sewer Md. 530, 552-59 (1999). The record must contain substantial plan sets forth the required proof for a county to approve an evidence to support the decision-maker’s written fi ndings, amendment of a designated water and sewer category. In People’s Counsel for Balt. County v. Surina, 400 Md. 662, Prince George’s County, for example, an amendment must 681 (2007), and the decision must be legally correct. Ram- (continued on page 3)
Want to Write? Contact Peter W. Sheehan, Jr. to be included in the next issue of the Administrative Law News [email protected]
2 Does a Federal Court. . . (continued from page 2) comply with the County’s 2002 General Plan and 2008 Water highlights ambiguities in Maryland’s common law regard- and Sewer Plan. The 2008 Water and Sewer Plan requires ing quasi-judicial and quasi-legislative decisions. After the that any amendment enhance environmental quality. The County Council denied the church’s application, the church 2008 Water and Sewer Plan further requires that a proposal successfully sued Prince George’s County in federal court conform to the 2005 Countywide Green Infrastructure Plan, for religious discrimination and Religious Land Use and the applicable Sectional Map Amendment and the Water Re- Institutionalized Persons Act (RLUIPA) violations. Reach- sources Functional Master Plan. The decisions regarding the ing Hearts Int’l v. Prince George’s County, 584 F. Supp. amendments control whether the land is developable. There 2d 766 (D. Md 2008). The federal court granted injunctive can be a lack of unanimity between the pro-growth and the relief and ordered the County to process any further water conservation communities regarding whether a particular and sewer applications from the church without delay and piece of land should receive public water and sewer. without religious discrimination.
It is not settled whether a county’s decision to approve a The church applied again to amend the water and sewer cat- water and sewer category change is quasi-judicial or quasi- egory for its property. After the County Council denied that legislative. The quasi-judicial argument emphasizes that a application, the federal court directed the Council to show county legislative body conducts a public hearing at which cause why its members should not be held in contempt and it accepts testimony and considers unique facts related to a sanctioned for violating the federal court’s prior order. The single tract of land. This argument highlights that the council federal court also vacated the partial denial of the church’s ap- does not rely on “general facts which help the tribunal decide plication, and remanded the matter to the Council with direc- questions of law and policy and discretion,” which are indica- tions to reconsider promptly its partial denial and process the tive of legislative action. Woodward & Lothrop, 280 Md. application without delay or religious discrimination and in at 712. At least one circuit court has adopted that rationale. conformity with that opinion as well as the prior opinion. Dugan v. Prince George’s County, Case No. CAL11-36987 (Cir. Ct. for Prince George’s County, Md. June 4, 2012). The Council then approved the church’s application for an amendment to the water and sewer plan which changed The quasi-legislative argument emphasizes that the process is the water and sewer category for the church’s land. The more legislative than judicial. In Prince George’s County, for Council’s Resolution approving the amendment referenced example, an applicant for a water and sewer category change only the federal court’s order as a basis to grant the church participates in the “Legislative Amendment Process” and a category change. The Council made no factual fi ndings the County Executive has the authority to veto the County regarding compliance with its water and sewer plan and is- Council’s decision to amend the water and sewer plan. PRINCE sued no written opinion describing how the application met GEORGE’S COUNTY, MD., 2008 WATER AND SEWER PLAN, § 6.3 the requirements of the law. (2008). Several appellate opinions suggest that the decision to amend a water and sewer plan is quasi-legislative. Bethel, Adjoining property owners then challenged the Council’s 184 Md. App. at 596-97 (amendment to water and sewer plan approval by both judicial review and declaratory judgment. was legislative act). See generally Appleton Reg’l Cmty. Al- Petition of Michael Dugan, Case No. CAL12-03856 (Cir. liance v. Cecil County, 404 Md. 92, 104 (2008) (“all amend- Ct. for Prince George’s County); Dugan v. Prince George’s ments to a Master Water and Sewer Plan are, by defi nition, County, Case No. CAL11-36987 (Cir. Ct. for Prince George’s comprehensive planning actions”). County). They argued that the decision, if quasi-judicial, failed to meet Maryland’s minimum standards because the A church’s application for an amendment to Prince George’s County’s water and sewer plan and the subsequent litigation (continued on page 4) KEEP INFORMED! JOIN THE Administrative LAW SECTION DISCUSSION GROUPS For more information, visit www.msba.org/sec_comm/sections/admin/
3 Does a Federal Court. . . (continued from page 3) Council failed to articulate how the amendment complied of G. Macy Nelson, LLC, 401 Washington Avenue, Suite 803, with the requirements for approving an amendment to the wa- Towson, Maryland 21204. ter and sewer plan. If the decision was quasi-legislative, they argued that the Council did not act within “its legal boundar- 1Maryland Rule 7-401 establishes that judicial review governs an ies” because there was no evidence that the church’s applica- action for a writ of administrative mandamus where the review is tion met the requirements for approving an amendment. They not statutorily authorized. Chapter 400 of Title 7 of the Maryland also argued that the federal court had no authority to order Rules, which was enacted by the Maryland General Assembly in the Council to disregard its and Maryland’s substantive law 2006, codifi ed Maryland common law. Prior to the enactment of regarding water and sewer plans and Maryland’s common law those Rules, Maryland common law included the right to judi- regarding the minimum requirements for quasi-judicial and cial review of an administrative agency decision where no such quasi-legislative decisions. No Maryland reported opinion review was established statutorily. See Talbot County v. Miles addresses whether a federal court has the authority to order a Point Property, LLC, 415 Md. 372, 394 (2010) (“Administrative Maryland county to disregard its and Maryland’s substantive mandamus proceedings are governed by Maryland Rules 7-401 law regarding water and sewer plans and Maryland’s common through 7-403. This is our fi rst occasion to comment explicitly law regarding the minimum requirements for quasi-judicial on these rules, which entered our canon in 2006, although this and quasi-legislative decisions. Court has long acknowledged the concept of administrative man- damus as an extension of the common law writ of mandamus.”); Over the next few years, state trial and appellate courts will Dep’t of Human Res. v. Hayward, 426 Md. 638, 649 n.6 (2012) have the opportunity to decide whether a decision to amend (“This Court has consistently recognized that, in the absence of the Prince George’s County water and sewer plan is a quasi- a review mechanism, a writ of mandamus may be issued in re- judicial or quasi-legislative decision. Those courts will also sponse to the action of an administrative agency. That principle have the opportunity to decide whether the federal court was reiterated and codifi ed upon the promulgation, in 2005, has the authority to order a Maryland county to approve an of the Chapter 400 Rules under Title 7, effective Jan. 1, 2006. amendment to the county’s water and sewer plan without Those Rules acknowledge a special kind of mandamus action, consideration of the county’s and Maryland’s substantive law ‘Administrative Mandamus.’”) (internal citations omitted); and regarding water and sewer plans and Maryland’s common Dep’t of Natural Res. v. Linchester Sand & Gravel Corp., 274 law regarding the minimum requirements for quasi-judicial Md. 211, 223 (1975) (“[T]he role of the courts in regard to these or quasi-legislative decisions. The resolution of these ques- administrative agency functions is to see that these responsibilities tions will provide guidance to the circuit courts and bar in were properly empowered to the agency and have been performed future cases. within the confi nes of the traditional standards of procedural and substantive fair play. In order to perform this essential duty, the The Law Offi ce of G. Macy Nelson, LLC practices environ- courts may be provided with specifi c authorization to do so by mental and land use law throughout Maryland in agencies, the Legislature through statutory provision, but, even absent such state trial and appellate courts, and federal trial and appel- authority, the judiciary has an undeniable constitutionally-inherent late courts. G. Macy Nelson can be reached at 410-296-8166, power to review, within limits, the decisions of these administra- ex. 290 or [email protected], or at Law Offi ce tive agencies”) (citations omitted). SAVE THE DATE
April 16 , 2012: Administrati ve Law CLE exploring the nuts and bolts of administrati ve law practi ce at the federal, state and local levels. Over a dozen judges and practi ti oners will share their best practi ce ti ps. Test your administrati ve law trivia during our luncheon program with Judge Lynne Batt aglia who will present, "Are You Smarter Than a Law Clerk."
The Program will be held at the Judiciary Educati on and Conference Center in Annapolis beginning at 9:00 a.m. (8:00 - 9:00 a.m. registrati on and conti nental breakfast). Stay tuned for more details.
4 How Consideration of the Affordable Health Care Act was at Risk from Administrative Law By Laura McWeeney
As you are no doubt aware, this March the U.S. Supreme that since the AIA applies to every tax penalty in the Internal Court heard three days of oral argument on the Patient Revenue Code, and since the individual mandate may result Protection and Affordable Health Care Act (“Affordable in a tax, the AIA applied. Under his argument, a taxpayer Health Care Act”) and in particular, its mandate requiring would fi rst have to pay the individual mandate tax/penalty citizens to buy health insurance or pay a penalty. National and exhaust his administrative remedies for a refund with Federation of Independent Business, et al. v. Sebelius, the IRS prior to seeking recourse in the courts. In the case Secretary of Health and Human Services, et al., No 11-393, before the Court, the tax does not become due until 2015. oral argument, March 26, 27, 28, 2012). What you may not Therefore, if the AIA applied and was jurisdictional, it would know is that the fi rst day of argument concerned a seminal bar consideration of the constitutionality of the Affordable issue of administrative law: exhaustion of administrative Care Act until 2015 when all of a taxpayer’s remedies had remedies. Who knew? been invoked and exhausted.
The exhaustion issue arose in an unusual way, as it was Ultimately, Chief Justice Roberts concluded that the AIA not a part of the decision that the Court agreed to review. did not bar this suit. “The Affordable Care Act describes It arose as a result of an unrelated decision from the U.S. the payment as a ‘penalty’ not a ‘tax’.” He determined that Court of Appeals for the Fourth Circuit which held that the the label utilized in the Affordable Care Act cannot control Anti-Injunction Act, was a jurisdictional statute that barred whether the penalty payment is a tax for purposes of the consideration of that case. What is the Anti-Injunction Act Constitution. That designation does however, determine the (“AIA”) and what relevance does it have to health care? application of the Anti-Injunction Act. Since the legislature labeled the payment a penalty rather than a tax, the Anti- This 1867 statute provides that “No suit for the purpose Injunction Act did not bar this suit. 567 U.S. ___ , slip of restraining the assessment or collection of any tax shall op.15 (2012). be maintained in any court by any person…” 26 U.S.C. §7421(a). The result of this law is that all those subject So, what is the doctrine of exhaustion that potentially could to a tax must fi rst pay it, pursue all administrative refund have stopped the Supreme Court’s consideration of the remedies provided by the IRS, and only then, sue for a Affordable Health Care Act in its tracks? refund. The statute is intended to protect the Government’s ability to collect a consistent stream of revenue, by barring The exhaustion doctrine is one of the three timing doctrines litigation to enjoin or obstruct the collection of taxes. governing judicial review of administrative action. Those three timing doctrines are fi nality, exhaustion of Before the Court could reach the central issue of the administrative remedies and ripeness. Basically, these Affordable Health Care Act’s constitutionality, it had doctrines ensure that before reaching the merits of a lawsuit to decide whether the Anti-Injunction Act applied. The challenging agency action, the reviewing court must be application of the AIA was relevant to the Court because satisfi ed that the plaintiff has not fi led suit prematurely. those who do not buy health insurance in compliance with the individual mandate must pay a penalty collected by the There are several policy bases underlying the doctrine of IRS as if it were a tax. Since, the individual mandate does exhaustion. First, is the court’s recognition that Congress not go into effect until 2014, and since the earliest a penalty through legislation has delegated to each agency the primary for noncompliance could be assessed is 2015, an immediate responsibility for deciding matters within its subject matter decision on the constitutionality of the mandate would expertise. Exhaustion ensures that courts do not interfere effectively restrain the assessment and collection of a tax in in that process until the agency has exercised its full contravention of the AIA. responsibility. This policy basis is grounded in constitutional separation of powers and honors the legislative branch In its petition for certiorari, the Obama Administration power to create an agency and delegate to it the requisite asked the Court to consider the question. Since none of rulemaking and adjudicatory authority. the parties advocated application of the AIA, the Court appointed Robert A. Long, Jr., of Covington and Burling, LLP., to argue that the AIA was jurisdictional. Long argued (continued on page 6)
5 Does a Federal Court. . . (continued from page 3) Secondly, agencies develop expertise in the regulation of of violations of a prisoners’ civil rights, are both subject matters within their delegated authority. It is prudent to to detailed and explicit exhaustion requirements. In these allow agencies to apply that knowledge prior to judicial cases, no court can excuse a failure to exhaust on any basis. review. Woodford v. Ngo, 548 U.S. 81 (2006). Finally, exhaustion of all available administrative remedies as a predicate for judicial review fosters judicial economy. For the Maryland practitioner, a recent exposition of the By requiring persons to fi rst appeal their challenges to the doctrine can be found in Maurice Carter v. Huntington Title agency itself, agencies have an opportunity to cure their & Escrow, 420 Md. 605, 24 A.3d 722 (2011). However, own mistakes, to narrow the issues or to create a more you should be aware that Professor Arnold Rochvarg has robust factual record for the court to review. observed that “[f]or the most part, Maryland courts rely on the leading exhaustion cases from the U. S. Supreme Prior to 1993, the exhaustion doctrine existed solely in Court.” Arnold Rochvarg, Maryland Administrative Law common law. See Myers v. Bethlehem Shipbuilding Corp., 119 (2d ed. 2007). 303 U.S. 41 (1938). In 1993, the Supreme Court held that the exhaustion doctrine was incorporated in Section 704 Laura C. McWeeney, Esq. is Associate Vice President, of the Administrative Procedure Act. Darby v. Cisneros, Procurement and Business Affairs for University of 509 U.S. 137 (1993). An administrative practitioner should Maryland University College. Her email address is laura. also be aware that sometimes Congress explicitly requires [email protected]. All views expressed in this article exhaustion as a prerequisite to the availability of judicial are those of the author and do not necessarily represent the review. Thus, for instance, claims for reimbursement made views of, and should not be attributed to, the University of by Medicare or Medicaid benefi ciaries and complaints Maryland University College.
Note from the Editor:
Many thanks to the Law Offices of G. Macy Nelson and to Laura McWeeney for contributing excellent articles to this edition of the Newsletter (If you did not already guess the theme, the three articles published in this edition all touch on issues of Federalism—the system that balances power between the Federal government and State and local governments—making this publication a particularly interesting one)! We are actively seeking ar- ticles for future publications, so, if you have an article you believe would be of interest to our Section members, we encourage you to submit it for consideration. The submission guidelines are posted on the Section's webpage at http://www.msba.org/sec_comm/sections/admin/ under the Newsletter tab. If you have an article to submit, please send it to me at [email protected].
-- Peter W. Sheehan, Jr.
6 Ninth Circuit Preemption Case Raises Questions about the Authority of State and Local Governments to Regulate Energy Effi ciency through Building Codes By Peter W. Sheehan, Jr. On June 25, 2010—while Constitutional Law wonks defi nition of “require,” which defi ned the verb as, to waited with bated breath for the Supreme Court’s decision “command,” “demand,” or “insist.” The court reasoned on the Patient Protection and Affordable Care Act, which that the building code did not “command, demand, or insist came just three days later—the U.S. Court of Appeals for that builders select higher effi ciency options,” and, thus, the Ninth Circuit rendered an interesting opinion on the did not “require” the use of higher effi ciency appliances. relationship between the U.S. government and the States, The court also relied on the Supreme Court’s decision in which basically went unnoticed. Bates v. Dow Agrosciences, LLC, 544 U.S. 431 (2005), in which the Supreme Court held that federal law regulating In Building Industry Association of Washington v. the labels on insecticide, fungicide, and rodenticide did not Washington State Building Code Council, 683 F.3d 1144, the preempt state common law products liability claims based Ninth Circuit held that Washington State’s recently-revised on negligence, strict liability or fraud, notwithstanding the building code was not preempted by federal regulations fact that “verdicts on [such] state tort claims might create promulgated by the Department of Energy (“DOE”). By economic incentives” to word a label in a certain way. way of background, Congress enacted the Energy Policy and Conservation Act (“EPCA”) in 1975, giving DOE the Second, the plaintiffs argued that the building code failed to authority to set minimum levels of effi ciency for various satisfy condition (C) because it did not offer builders a “one- household appliances. The act initially preempted all state for-one credit” for alternative methods of reducing energy energy effi ciency standards, but in 1987, Congress amended use. The plaintiffs claimed that the building code’s assigning it to permit a limited preemption exception for state and the same credit value to certain options was erroneous. For local building codes. Under the EPCA as modifi ed in 1987, example, they maintained that a geothermal heat pump a state and local building code containing energy effi ciency would reduce a building’s energy use by six percent, whereas standards is not preempted if the building code satisfi es a system for ventilating and preventing leakage of climate- seven conditions. All seven conditions are codifi ed in 42 controlled air would reduce a building’s energy use by ten U.S.C. § 6297(f)(3), sub-sections (A) though (G), but only percent; thus, they argued, the buildings code’s assignment two are relevant here: (B), which provides that the building of the same credit value to both of those options was not code must not “require” the use of appliances with energy on a “one-for-one” basis as required by condition (C). The effi ciencies exceeding the minimum effi ciency set by DOE court, however, rejected their argument, reasoning that “[a] regulations; and (C), which provides that the building code ny credit-based system that involves comparing different must offer builders a “one-for-one credit” for alternative methods of reducing energy [] may seem like comparing methods that reduce energy use. Sub-section (C) is designed apples and oranges” and, thus, it should not be surprising to prevent state and local agencies from favoring particular that the correspondence between “energy use saved and products or methods. credit value awarded” is not perfect. The court also relied on a Senate Committee Report noting that that credits are to Washington State promulgated its current building code in be given “to the greatest degree possible,” as evidence that 2009. Plaintiffs, who were generally home builders and Congress did not intend “mathematical perfection.” contractors, fi led suit in the Western District of Washington, challenging the building code on several grounds. The Building Industry Association of Washington is an district court rejected all their arguments, and they appealed important case because “green” and sustainable building to the Ninth Circuit where they narrowed their focus. On codes are becoming increasingly popular with State and appeal, they advanced two arguments. First, they argued local governments, and it appears to be the only appellate that the building code did not satisfy condition (B) because decision on the issue of whether such a building code is it effectively “required” them to install more effi cient exempted from federal preemption (I do not know whether appliances in new construction by making it too costly the plaintiffs chose to petition the U.S. Supreme Court for for them to install lower effi ciency appliances. The Ninth a Writ of Certiorari). Thus, it likely will be persuasive Circuit, however, rejected that argument, observing that an authority for other appellate courts as similar cases bubble “economic incentive is not a requirement.” In reaching its conclusion, the court looked to the Webster’s Dictionary (continued on page 8)
7 Ninth Circuit Preemption Case. . . (continued from page 3) up in the circuits. The case suggests that such codes can be should courts draw the line? In other words, what degree of implemented in ways that do not violate federal law, but it correspondence is required? This question, in turn, raises leaves plenty of room for argument. For instance, although yet more questions, such as, who decides whether credit the court recognized that “economic incentives” are not value awarded suffi ciently corresponds to energy use saved? “requirements,” does the court’s rationale rule out the And, what, if any, deference should a reviewing court give possibility that another building code’s so-called “economic to that determination? Perhaps, in time, these questions will incentives” could be so draconian that they result in a be answered, as it is quite likely that there will be more Hobson’s Choice in favor of higher effi ciency appliances? litigation on preemption under the EPCA. The court’s rationale regarding application of condition (C) also leaves plenty of room for further disagreements. Peter Sheehan is an associate at Whiteford Taylor & For example, although the court recognized that any given Preston LLP in Baltimore, Maryland. His email address is building code likely never will have “perfect correspondence [email protected]. between energy use saved and credit value awarded,” where
It’s Never too Early to Plan!
2013 MSBA Annual Meeting
June 12-15 Ocean City, MD
www.msbaannualmeeting.org
Sea. You. There.
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