ICC Appeal Hearings Presentation on Preemption Appeal of Code Changes
In the ICC appeal hearings on August 31, 2020, appellants argued that code changes are preempted by the Energy Policy and Conservation Act of 1975. Despite procedural complexities, ICC staff recommends denying the appeals, leaving the decision to the ICC Board of Directors for further analysis.
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Presentation Transcript
ICC APPEAL HEARINGS | August 31, 2020 ICC Presentation on Preemption Appeal of Code Changes RE107 19 & RE126 - 19
Scope of Appeals Appellants state that: The code changes in question are preempted by the Energy Policy and Conservation Act of 1975 (EPCA). ICC staff should have ruled the proposals out of order or remanded the proposals to a committee authorized to make such a ruling due to potential conflict with EPCA. The proposals should not have been processed in the 2019 cycle. Appellants request that the approved proposals not be published in the 2021 IECC and IRC.
ICC Conclusion Procedurally, there is no ICC policy (CP28 or any other) that prohibits staff from processing code changes which are or may be preempted by Federal law. In view of the intricacies of the law regarding preemption generally, and under the EPCA specifically, it is unclear as to whether the provisions cited by the appellants would be preempted if adopted.
ICC Recommendation Staff recommends the appeals be denied by the Appeals Board, finding no violation of process or procedure . That being said, it could be argued that that the spirit and intent of the I-Codes is to avoid provisions that may be preempted. Noting that the ICC Board of Directors has broad authority over the code development process, staff recommends that the ICC Board should determine whether further analysis and investigation of the preemption issues raised should be initiated and whether remedial action should be taken.
