The Case for Federal Preemption—Energy Star and Our National Needs

A minor variation in energy performance as manufacturers push the “state of the art” could create liability issues
Paul R. Gary
August 15, 2008
COLUMN : Legal | Codes & Standards, Management, Energy Efficiency

Federal preemption is probably not a concept many would associate with the fenestration industry. I suspect many readers have never even heard the term. It’s a concept, however, the industry should understand and promote.

The underpinnings for the principle of federal preemption are found in the U.S. Constitution and the goal is the uniform regulation of matters of strong national interest. The fenestration industry finds itself deeply in the grasp of de facto regulation on matters relating to energy performance. Is it appropriate to pursue a dialogue on federal preemption in the area of claims based upon of regulation of energy ratings for windows and doors? Is it wise?
Under the right circumstances, any federal law–and even a regulation of a federal agency–can override a conflicting state law. Preemption can be express within a statute or regulation; or it can be implied if the federal scheme is meant to “occupy the field.” The Supreme Court has also confirmed that the imposition of state law tort damages is a form of “state regulation” which is subject to federal preemption.
Addressing a Crisis
The fenestration industry is evolving to address a national energy crisis. The Building Technology Program of the U.S. Department of Energy reports that energy lost through windows accounts for 15 percent of all the energy consumed by the nation’s residential and commercial buildings. This “fact” has accelerated the demand to improve energy performance of windows and doors, largely through the subsidized marketing power of the Energy Star program. Indeed, Energy Star has become a dominant feature of the fenestration marketplace with compliance requirements that have been, and will in the future be, increasingly stringent. With Energy Star criteria driving code criteria (and vice versa), the risk of missing Energy Star qualification can be too great to bear.
We simply need to recognize that the manufacturers and resellers of windows and doors operate within an area of federal prominence, i.e. the U.S. effort to control its energy fate, with the attendant sociological, financial and political implications. In a broad sense, Energy Star is an outgrowth of the application of all these factors. Since the 1990s the window and door industry has responded by improving energy performance with remarkable results. However, as you know, it is being called upon to do more—and I have no doubt that it will. The drive to make the country more energy-efficient is not only prudent but unstoppable.
The following may be “anecdotal,” as the conclusions are based on personal observation, but I think on point:
--The drive to meet increasingly rigorous energy standards requires prompt, full-scale implementation of emerging technology which by definition will not have been subject to lengthy “real world” experience.
--Despite good faith and significant investment, the use of emerging technologies includes unavoidable risk of unforeseen consequences arising out of product mass production, variability of applications and the effects of time in the field.

--People within the fenestration industry should be supported in making the investment to adopt and implement the technology needed to develop this aspect of the response to U.S. energy crisis.
At the same time, there exist aspects of existing state law that could readily be used—or misused—to punish the manufacturer/reseller who complies in good faith with all Energy Star requirements but experiences the effect, even if temporary, of one of those unavoidable “new technology” risks. 
For example, most states have “unfair trade practice” statutes which provide the basis for liability, irrespective of negligence, if a product is sold on the basis that it contains an attribute which it does not. A minor variation in energy performance, unavoidable as we push the “state of the art” in technology needed to comply with the Energy Star initiative, could cause a significant and widespread (uninsured) liability.
If that liability befell the manufacturer which, on its own, leaped ahead to gain market share, then that is the result of competitive market forces in action. However, if the victim is a good faith participant in a program which is part of the federal response to a national crisis, I suggest that the state law liability is seriously misplaced. Here, federal preemption over claims based upon a products’ failure to meet Energy Star criteria should be established.
Energy Star has its own compliance management function. Agency investigations of complaints are made to police the compliance with the appropriate requirements of all products reported as Energy Star qualified. In the setting of such an investigation, a manufacturer can present the work done to meet reach qualification criteria to representatives of the agency responsible for development and implementation of the program. The agency’s responsive actions can be fashioned to meet the situation, whether to assure bettering the effort to maintain uniform compliance, de-listing of products or otherwise. The goals of EPA/DOE are better served by making these police powers the exclusive remedy for Energy Star claims.
The effort to establish federal preemption of state law claims based upon the failure of individual fenestration products to meet Energy Star qualification criteria needs serious attention. Energy Star partners should be supported when they act in good faith to achieve and maintain qualification requirements in response to a national need.

Paul R. Gary is the prinicipal of The Gary Law Group, a law firm based in Portland, Ore., emphasizing legal issues facing manufacturers of windows and doors. He welcomes feedback about articles published in Window & Door and can be reached at 503/227-8424 or paul@prgarylaw.com.