Volume 12, Issue 2

In This Issue

2011 Legislative Preview

The Florida Legislature convened its annual 60-day Legislative Session on March 8, 2011.  The 2011 Legislature will be faced with the daunting task of addressing a budget deficit of approximately $4 billion.  The Republicans hold strong majorities in both chambers and have vowed to address the deficit through spending cuts and without raising taxes.

Backing up campaign promises, newly-elected Governor Rick Scott proposed a sweeping two-year budget plan that reduces spending by approximately $7 billion by making broad cuts to public education, benefits for state workers and payroll.  Scott’s plan cuts almost 9,000 state jobs, requires existing state employees to contribute to their own pensions, and realigns several state agencies.  The budget proposal also cuts $3 billion from Medicaid over the next two years by cutting payments to hospitals and physicians and expanding the Medicaid managed care pilot program statewide.  Finally, Scott’s proposal makes good on his campaign promise to cut the corporate income tax, reducing it from 5.5% to 3%.

If previous sessions are any indication, when the 2011 Legislative Session begins there will be more than 2,000 bills filed.  Some of the major issues that we expect to be addressed this year include:

  • Illegal immigration;
  • Overhauling the public education system, including the way teachers are hired, fired and compensated;
  • Medicaid reform;
  • Unemployment compensation;
  • Economic development and job creation; and
  • Streamlining of government and regulation.

The LLW Legislative Team is involved in most major areas of policy touched by the Florida Legislature, including environmental issues, growth and development, agriculture, energy and utilities, health care, transportation, economic development, local government, and state funding.  The complicated political landscape requires sophisticated and persistent representation in order to promote new, innovative ideas and stave off detrimental regulation.  The LLW Legislative Team devotes our efforts to protecting and promoting our clients’ interests and will continue to do so until the Legislature adjourns sine die on May 6th, and beyond.

For more information, contact any of our Legislative Team attorneys:
Terry Lewis, Lori Killinger and Chris Lyon (850) 222-5702.

 

Adopting Green Building Codes and Federal Preemption: A Lesson Learned from Albuquerque

Buildings use close to 40% of our total energy, including the majority of our electricity and thus, in the ever growing attempt to conserve energy and reduce greenhouse gas (“GHG”) emissions, more and more local governments throughout the United States are adopting green building codes.  Green building codes are part of an overall building code, but are in effect to set a baseline for energy use in new construction and renovations by establishing minimum energy efficiency requirements.  The benefits of more efficient building design and construction today can be enjoyed for thirty to fifty years.

In developing these green building codes, state and local governments often look to the national model energy codes as a starting point.  The International Energy Conservation Code (“IECC”), which contains minimum energy efficiency provisions for residential and commercial buildings, offering both prescriptive and performance-based approaches.  While the IECC is a valuable tool and good starting point, there are many developments in the law that must be considered when developing a green building code.  Specifically, when materials or activities are already regulated by the federal government, the Courts have ruled that a state’s green building code cannot be more restrictive than the current federal regulations.  For instance, Albuquerque, New Mexico enacted the Albuquerque Energy Conservation Code (“Code”) in 2007, which applied green building provisions to new residential and commercial buildings, additions to existing buildings, and alterations to existing buildings. The Code generally provided three options for compliance: (1) Leadership in Energy & Environmental Design (“LEED”) certification at the silver level; (2) efficiency 30% greater than that of a prominent national code; or (3) compliance with prescriptive standards for individual building components, such as heating, ventilation, air conditioning (“HVAC”) and water heaters.  In 2008, the Code was challenged in federal court on the grounds that its prescriptive alternatives for compliance were preempted under the Energy Policy and Conservation Act (“EPCA”) as they were regulations that “concerned” the energy efficiency of products for which the Department of Energy (“DOE”) had already set standards.  Air Conditioning, Heating & Refrigeration Inst. v. City of Albuquerque, No. 08-633, 2008 WL 5586316, at *2-3 (D.N.M. Oct. 3, 2008).

The court agreed, observing that “if a homeowner [chose] to replace an existing furnace with a federally-compliant furnace, [the] homeowner must make other revisions to the home to make up the energy differential between a federally-compliant furnace and a furnace that meets the requirements of the Code.” Id.  The court found that “Congress intended to preempt state regulation of the energy efficiency of certain building appliances in order to have uniform, express, national energy efficiency standards;”  the Code was subject to the federal statute’s preemption provision; and even though Albuquerque provided three alternatives for compliance, each alternative was subject to federal preemption.  Id.  Further, the court ruled that, although some elements of the Code might be valid, enough of the Code appeared to violate the federal preemption provisions to justify an injunction while the case went forward on the merits. Id.  Further, in 2010 the U.S. District Court of New Mexico issued a memorandum opinion and order, again supporting the position that prescriptive provisions that are more stringent than federal standards are preempted by law, but failed to determine at that time whether the performance provisions (such as LEED certification at the silver level) were valid.  Air Conditioning, Heating & Refrigeration Inst. v. City of Albuquerque, (D.N.M. Sept. 30, 2010).

The lesson learned from Albuquerque is that a local government is preempted from incorporating into its green building code stricter energy efficiency and use standards for major residential and commercial appliances and equipment, including HVAC products and water heaters, than the federal government regulations allow.  As a result of Albuquerque and in the interest of increasing energy efficiency, the IECC is moving toward a greater regulation of lighting, insulation, and sealant measures for residential and commercial buildings.

To find out how we can help you and for more information on green building codes, please contact Jennifer Cowan at jcowan@llw-law.com or (941) 708-4040.

Firm News & Speaking Engagements

  • LLW is pleased to announce that Kevin Hennessy has been elected as Managing Shareholder for the firm. Mr. Hennessy is a founding member of Lewis, Longman and Walker, P.A., and is also the executive shareholder in the firm’s Bradenton office. Steve Walker was elected to the position of Strategic Planning Director for the firm. Michelle Diffenderfer was elected as the executive shareholder in the West Palm Beach office.
  • LLW attorneys participated in the annual Palm Beach County Days that took place March 8-9th at the Capitol in Tallahassee.
  • LLW attorneys will participate in the Florida City and County Management Association’s annual conference that will take place May 31-June 3rd in Clearwater. Jennifer Cowan will participate on a panel titled “Innovative Funding Solutions for Green Community Initiatives” and Jim Linn will present “Pension Reform.”
  • On April 9th, LLW employees will participate in the annual Lord’s Place Sleep Out. The Lord’s Place is a nonprofit organization committed to breaking the cycle of homelessness in Palm Beach County. Participants sleep outdoors in sleeping bags and tents in a symbolic effort to identify with the estimated 4,000 men, women and children who are homeless on any given night in Palm Beach County. The event will take place at the Meyer Amphitheatre in West Palm Beach. LLW is a proud supporter of The Lord’s Place.
  • Michelle Diffenderfer will participate on a Greenwashing panel at the Greening the Law: Green Building Litigation, Green Leasing, Renewable Energy, Greenwashing, Green Codes & Ethics CLE Seminar that will take place May 6th in Tampa.
  • James Charles gave a presentation on Numeric Nutrient Criteria at the Florida Bar’s Environmental and Land Use Law Section’s Hot Topics Conference March 4th in Ft. Lauderdale.
  • Tara Duhy gave a presentation on Corps issues in the EAA at the Florida Mine Safety, Health and Environmental Conference held February 22nd in Orlando.
  • Terry Lewis and Jennifer Cowan presented, “Contract Management and Procurement” at the Certified District Official Program at the Florida Association of Special Districts Membership Meeting and Educational Session held January 27th at the East Manatee Fire Rescue District in Bradenton, Florida.   Terry Lewis and Chris Lyon also provided a Legislative Update at the meeting and Glenn Thomas presented a Pension Update.
  • LLW was a proud sponsor of the annual luncheon to benefit Easter Seals, an organization that provides services for people living with autism and other disabilities, on March 4th in West Palm Beach.

Lori Killinger Elected Shareholder

Lewis, Longman, & Walker, P.A., is pleased to announce that Lori Killinger has been elected as a shareholder of the firm. Ms. Killinger’s practice focuses on Legislative, Administrative, and Governmental representation. She represents clients before the Legislative and Executive Branches of Florida’s government, regulatory agencies at the state and local levels, the Florida Cabinet, and Legislative and Gubernatorial Commissions.

Ms. Killinger holds an AV-rating from Martindale-Hubbell, is a Certified Circuit Court Mediator and a founding member and Board Member of the Florida Association of Professional Lobbyists.

She is also a Designated Professional Lobbyist, a certification she received from the Florida Association of Professional Lobbyists. She is also the Past-Chairman of the Florida Construction Coalition and a member of United States District Court, Southern and Middle Districts of Florida. She can be reached at (850) 222-5702 or at