The Court of Appeals of the State of New Mexico
handed down a limited win for energy code advocates,
holding that adopting changes to building codes that removed energy
conservation provisions without any justification violated
Between 2006 and 2012, the construction and energy codes adopted
in many jurisdictions have incorporated provisions increasing the
energy efficiency of buildings built to code by 30% (15% from the
2006 to the 2009 codes, and an additional 15% from 2009 to
As I have posted about previously, there is a trend
nationwide to resist adoption of the 2012 codes, in part based on
the increased energy conservation requirements. In the case of
New Mexico, the state had adopted codes which had energy
conservation requirements beyond those in the 2009 energy
The New Mexico Construction Industries Commission (the
"Commission") sought to adopt changes that would
have removed any energy conservation provisions from the New Mexico
codes that exceeded the 2009 International Energy Conservation Code
The Commission held several public meetings and solicited public
comments on the code changes. Then, at a June 2,
2011 meeting, after a brief and
(frankly) confusing statement by the Chair of the
Commission, the Commission voted to adopt the code changes
without further discussion.
Several groups including the Southwest Energy Efficiency
Project, Environment New Mexico, several green builders, the Sierra
Club and other sued to overturn the Commission's decision
for (among other arguments) being "arbitrary and
capricious" due to the Commission's lack of
discussion and justification for the decision.
The Court of Appeals held that the Court could not
even determine whether the Commission's decision was valid
because the Commission failed to provide "what facts and
circumstances were considered and the weight given to those facts
and circumstances." Southwest Energy Efficiency
Project v. New Mexico Construction Industries Comm'n, No.
313838, April 4, 2013 (N.M. Ct. Appeals)
at 10. The Court remanded the Codes to the
Commission for reconsideration, with a justification of its
reasons for its decision.
The reason why I characterize the decision as a
"limited win" is that, assuming that the
Commissioners are the same, there is no reason why the decision on
the code adoption will change. If the code revisions are
again adopted, with justification, the Plaintiffs will have to
institute another legal action, and demonstrate that the
justification provided by the Commission is arbitrary and
However there may be value to the plaintiffs simply by filing
the suit and making the Commissioners justify to the citizens of
New Mexico in writing why the homes they live in should not be
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