State standards for nationwide products revisited: Federalism, green building codes, and appliance efficiency standards

This Article considers the federal preemption of state standards for building appliances and places the issue within the ongoing federalism debate over the role of state standards for "nationwide products" such as automobiles, drugs, medical devices, and other consumer products sold on a nationwide basis. Notably, residential, commercial, and industrial buildings make up approximately forty percent of total U.S. energy demand and the same percentage of U.S. carbon dioxide emissions, while the appliances within those buildings are responsible for seventy percent of building energy use, making appliance efficiency a central component of any national effort to reduce energy use and greenhouse gas ("GHG") emissions. For decades now, states and local governments have been at the forefront of developing "green building codes" to reduce the energy use and GHG emissions associated with buildings. At the same time, however, states are extremely limited in their authority to mandate more energy efficient appliances in buildings because federal law preempts innovative state standards in this area. After providing a detailed discussion of state and local green building efforts and the history of federal preemption of appliance efficiency standards, this Article explores recent scholarly work in the area of "dynamic" or " polyphonic" federalism to argue for a new approach that allows for state innovation without disrupting the national market for appliances. This Article then suggests various options for revising the federal laws governing appliance efficiency standards; these options recognize and build on the expertise states have gained in reducing energy use and GHG emissions without creating an unworkable "fifty-state patchwork" of regulation.