Step 3. Identify the Appropriate Adoption Process and Framework

Description

Once the code support infrastructure has established clear, measurable goals for a new energy code or update, the state or jurisdiction should choose the appropriate adoption process and framework. For many states, this process has already been established. Adoption of energy codes at the state and local level generally occurs directly through legislative or regulatory action by authorized agencies. This results in a mandatory energy code. However, there are voluntary means of adopting an energy code that are viable options for states without authority to adopt statewide, local governments that have higher energy efficiency goals, and other entities interested in energy code adoption.

Voluntary Adoption

Voluntary adoption is the decision by a state, jurisdiction, designer, contractor, owner, developer, or any other authority associated with a building to comply with all or certain portions of an energy code. Adoption of any energy code provision is considered voluntary when the individual or entity that is responsible decides to comply or require compliance with no mandate to do so. The motivation for such adoption can include saving energy, reducing operating expenses, corporate policy, incentives, or simply gaining a position in the market. For speculative properties, voluntary adoption is not likely to be considered unless the building owner/developer feels that the economics or other attributes are such that the building has an increased desirability in the market compared to competing buildings. Where the building owner/developer is also the operator of the building, such as in federal, state, or local government buildings, any increase in first cost associated with adopting an energy code can be weighed against the life-cycle costs of operating the building. National corporations in hospitality, recreation, food, and mercantile can also adopt energy or green building codes or programs, or both, to reduce operating costs, increase the market value of a building, and improve the way they are viewed by consumers.

Mandatory Adoption

The mandatory adoption of an energy code or standard is established through a law, rule, or regulation from an authoritative body or agency. Details of the adoption process vary depending on whether the energy code is adopted via legislation or regulation by a statewide or local government. However, the process generally includes the following steps.

1. A proposal is initiated by a legislative body or regulatory agency with the authority to promulgate energy codes. Interested or affected parties also may initiate a change. Typically, an advisory body is convened and will recommend a new energy code or revisions to an existing code. Typical initiators include state energy offices, state-appointed energy code councils, local building official associations, mayors, and city councils.
2. The proposal undergoes public review consistent with the legislative or regulatory process under which the code is being considered. Public review options include publishing a notice in key publications, filing notices of intent, and holding public hearings. Interested and affected parties are invited to submit written or oral comments.
3. The results of the review process are incorporated into the proposal, and the final legislation or regulation is prepared for approval.
4. The approving authority reviews the legislation or regulation. Revisions may be submitted to the designated authority for final approval or for filing.
5. After being filed or approved, the code becomes effective, usually on a future date so that those affected can become familiar with new requirements. The period between adoption and effective date typically varies from 30 days to 6 months.

Figure 1. Mandatory energy code adoption process overview

Adoption Through Legislation

When adoption is accomplished through legislation, a committee is generally appointed to provide recommendations for the adoption of a model energy code and/or draft state-specific legislation.

State legislation rarely includes the complete text of an energy standard or model energy code. More commonly, legislation references an energy standard or model energy code that is already published. The legislation often adds administrative provisions addressing enforcement, updating, variances, and authority. Another common approach is to use legislation to delegate authority to an agency, council, or committee. The delegated authority is empowered to develop and adopt regulations governing energy-related aspects of building design and construction. Some states adopt the administrative provisions of the energy code by legislation and the technical provisions by regulation, or vice versa.

Adoption Through Regulation

When adoption occurs through a regulatory process, state and local government officials or empowered regulatory agencies often appoint an advisory panel composed of representatives of the design, building construction, and enforcement communities to recommend a new energy code, or revisions to an existing energy code. The technical provisions of the regulations may be unique to the state, or the regulations may adopt, by reference, national energy standards or a model energy code. In basing its recommendations on model energy codes or standards, the advisory panel considers modifications to those documents to account for unique local conditions and construction practices. The panel also may serve as a source of information during the adoption process. Panel recommendations then typically enter a public review process.

Adoption by State Government

Adoption at the state level can specify a mandatory compliance requirement throughout the state or require compliance in local governments (e.g., city, county, township) that have elected to adopt the code themselves. The adoption process can also stipulate when and if local government is allowed to amend the state-adopted code. For example, the Virginia Uniform Statewide Building Code cannot be amended by local governments. In Idaho, jurisdictions must adopt the same codes as adopted by the State Building Code Board and may amend that code for increased but not decreased stringency.

Adoption by Local Government

If a state has limited authority to adopt an energy code, as is the case with a "home rule" state, or a state that cannot interfere or control on the local level, units of local government have the option to assume that responsibility.

A local government's municipal code typically includes a title or provision covering building construction, under which energy provisions can be adopted. As such, local governments can adopt standards or codes that are more energy efficient than those of the state; most local governments adopt a model energy code by reference. Resources 1, 2, and 3 in this step can provide information on locally adopted codes in home rule states. Colorado, a home rule state, has created a toolkit for adopting the IECC (Resource 4 in this step) that includes resources on the adoption and implementation of an energy code in a home rule state, as well as best practices and model ordinances.

Adoption by Other Means

Although model codes are most commonly adopted through legislation, regulation, rules, or other action by state or local government, there are other mandatory means of adopting such documents in whole or in part. One way is through a contract for services such as design, construction, procurement of equipment and products, commissioning, or even building operation. For instance, most federal agency contracts for building design and construction require specific codes and standards to be the basis for building design, construction, commissioning, or operation. To secure the contract and receive payment for the services provided, the contractor must satisfy codes and standards referenced in the contract. If the scope does not cover the entire building, such portions of the building, such as the renovation or replacement of a lighting system or the ongoing procurement of mechanical equipment. If the scope, format, or application of the energy code covers post-occupancy performance, a performance contract for building operation can be a vehicle for ensuring compliance.

Current Framework

As discussed previously, code adoption is generally achieved either through legislative or regulatory action. States and jurisdictions across the nation are utilizing a variety of frameworks that vary based on the adoption process, adopting body, and applicability of the code throughout the state. These frameworks include:

• Statewide, uniform adoption by legislative enactment
• Statewide adoption by a board established by law, with authority to adopt codes statewide
• Statewide adoption by a named official, such as a state fire marshall
• Statewide adoption by a board, with a legislative approval or veto mechanism
• Statewide adoption of a minimum code, with authority of local jurisdictions to adopt more stringent codes
• Statewide adoption of a maximum code, with local governments able to choose to adopt or not adopt the state code
• No statewide adoption, but a required code minimum/maximum or specific requirements for local jurisdictions that choose to adopt a code
• No statewide adoption, with authority for local government to adopt a code of its choosing (home rule).

Resource 5 in this step, created by the International Code Council (ICC), provides a description of the adoption process of each state. Specific legislation for several states can be found in BECP's "Model Policy Database" (Resource 6 in this step). In addition, BCAP's "Policy Action Tool" (Resource 7 in this step) provides a variety of sample legislations for use by states as templates. The Policy Action Tool covers initial energy code adoption, updating an energy code, and increasing uniformity across a state, among other topics.

Recommendations

It is important first to determine whether energy code adoption will be voluntary or mandatory. If the code will be voluntary, explore available incentives that can be used to encourage energy code use. Effective incentives save individuals time and/or money, build capacity through training or design education, or add value to a business through subsidized marketing, increased building valuation, or positive public relations. Many entities may offer incentives, including state and local government agencies, utilities, and insurance underwriters. The most common incentives include expedited plan review and permitting, increased building valuation, property and income tax reductions, permit variances, marketing, utility rate reduction, and education. The Database of State Incentives for Renewables and Efficiency (DSIRE) is an excellent resource that provides state-by-state information regarding energy use incentives and policies (Resource 8 in this step). "Going Beyond Code: A Guide for Creating Effective Green Building Programs for Energy Efficient and Sustainable Communities" (Resource 9 in this step) also details local and statewide incentive programs.

When the adopted code will be mandatory, select the most appropriate adoption process or work within the adoption process already established by a state. Ensure that the adoption process is clear and consistent and enforce automatic updates when available.

Resources

1. 1. DOE's Building Energy Codes Program Status of State Energy Codes Database
2. ICC's Adoption Database
3. BCAP Status of State Energy Codes
4. Initial Adoption—Getting Started/First Steps to Immediate IECC Benefits
5. Code Adoption Process by State
6. Model Policy Website
7. Policy Action Tool
8. Database of State Incentives for Renewables & Efficiency
9. Going Beyond Code: A Guide for Creating Effective Green Building Programs for Energy Efficient and Sustainable Communities
10. Finding Places to Legislatively Adopt a New Energy Code
11. Understanding Building Energy Codes and Standards