Builder Groups Aim to Undermine Recent Vote for Stricter Energy Codes
Anti-regulatory lobbyists from building industry groups hope to pull off a code-killing coup in 2021.
2020 was a historic year, both for reasons we currently comprehend and for reasons we may only understand in retrospect. Depending on how an upcoming ICC Board decision goes, it may prove to be the year the IECC met its demise.
For context, let me offer a recap of the past 14 months, with a couple flashbacks sprinkled in:
In October 2019, the public comment hearings for the Group B codes were held. (This group includes the IECC for both commercial and residential buildings.) Since the results of the April 2019 committee action hearings were a mixed bag (regardless of your efficiency leanings), both sides knew this was going to come down to the governmental member voting representatives (GMVRs).
On the surface, nothing seemed out of the ordinary at the residential code hearings. The National Association of Homebuilders (NAHB) and Leading Builders of America (LBA), along with the energy/environmental advocates: Energy Efficient Codes Coalition (EECC) and the National Resources Defense Council (NRDC) were locked into their usual debates: insulation levels, climate zone adjustments, ERI levels, equipment trade-offs, etc.
Yes, there were a couple of new proposals, such as requiring homes to be EV-ready or wired for all-electric appliances, but both had been ruled IECC-eligible by ICC staff prior to the hearing. Code change proposals were being debated on their merits, as usual.
Behind the scenes, both sides had already started their own two-part advocacy campaigns. This, too, was nothing new. Voting guides had been published and distributed by NAHB and EECC in previous code cycles, and the 2021 IECC was no different.
Voting guides typically identify high-priority proposals that the respective special interest groups feel are the most impactful (positive or negative) to their constituents. Meanwhile, the customary direct outreach to GMVRs was fully underway.
In the 2018 IECC development process, NAHB had deployed a “One and Done” campaign, whereby they asked each of their members to contact one GMVR and ask them to vote in NAHB’s favor on a variety of top-priority proposals. Their math told them that if even half their builder members lobbied successfully, there would be more than enough votes to win any proposal they wanted.
While NAHB didn’t get near the vote totals they would have liked, the effort proved somewhat fruitful for them. They managed to stave off most efficiency gains, though most of their rollback attempts were thwarted. At a January 2019 meeting at the International Builders’ Show, an NAHB committee discussed their plan for the upcoming 2021 IECC development process.
While the most vocal NAHB members were pleased with the previous outcome, they didn’t want to trust that it would work again. Admitting that “Two and Done” wasn’t nearly as catchy a slogan as “One and Done,” they agreed that they had to at least contact their usual GMVR allies in the latter half of 2019, to help them achieve success again.
The EECC entered 2019 knowing they had to change their strategy if the IECC was going to break out of its two-cycle-long efficiency stagnation. In a bit of irony, they decided to do exactly what the ICC had always hoped for when they enabled online voting.
EECC enacted a plan to get droves of previously unregistered GMVRs signed up to vote. They targeted municipalities that had publicly pledged to uphold the Paris Climate Accord’s goals.
These same locales were growing restless with the lack of efficiency gains in the IECC. Knowing they had the option of taking matters into their own hands by amending their local codes to go above and beyond the model code, many of these locales also knew the political reality.
If they strayed too far from the model code, there could be political backlash for “going rogue.” However, if the model code went up in efficiency, local municipalities could merely adopt the latest model code, accomplish their climate policy desires, and redirect any negative feedback at the national process.
When the public action hearings concluded in late October 2019, things weren’t looking too good for efficiency gains. Nearly two dozen pro-efficiency proposals had been voted down by the code development committee in April 2019, and the 50 or so voters who attended the October 2019 hearings seemed to be in agreement with the committee.
However, the online vote had yet to begin. That would take place in November 2019, with those results being added to the October 2019 in-person vote totals. What happened next took everyone by surprise.
A Landslide Vote for Energy Efficiency; NAHB Panics
The preliminary voting results were announced in December 2019. EECC’s campaign produced an unprecedented landslide in favor of nearly every single pro-efficiency proposal. On the flip side, nearly every efficiency rollback was defeated. The builders were stunned. How could nearly everything turn out so badly?
The answer would come in the final vote tally. The pro-efficiency outcomes were in the 70th, 80th and even 90th percentiles in some instances. To use an analogy, it would be like if you were at the local pool hall playing someone in 8-ball. You got to break, made one ball, but then missed your next shot. Your opponent then stepped up to the table and sank every other ball, in succession, with ease while alternating between right-handed and left-handed shots.
The fury within the halls of NAHB was immense. Multiple meetings with ICC leadership were demanded, and the conversation was very one-sided. Appeals were filed, primarily by NAHB and LBA. Claims of voter fraud, ineligible voters, and illegal votes were alleged. (Sound familiar?)
ICC conducted a 3rd-party independent audit of the online vote, which they stated was “a normal part of our code development process to assure accuracy.” In mid-March 2020, the ICC’s Validation Committee confirmed the audit’s findings that everything was above board and legitimate, from only eligible voters voting to an accurate vote total with no security breaches.
At this point, things aren’t looking too good for the builders. The outcome is untenable, and they can see the writing on the wall that this most recent outcome is likely to be perpetual, especially if they stick to their long-held opposition to widespread sustainability measures in codes. They’ve been beaten at their own game of lobbying/advocacy, and the loss was so resounding that they’ve got to figure out a way to change the process.
The only other option is an all-out assault on ICC and the codes themselves. That represents a risky approach because if it backfires, it guarantees defeat in future code cycles and loss of standing with a critical partner. Amazingly, NAHB is about to get momentum back on their side.
NAHB Doubles Down with a Poison Pill for the ICC
Over the summer of 2020, the appeals are heard. In early October 2020, the ICC dismissed the appeal of the online voters’ reversal of the code development committee’s decisions since this had been a clearly-stated possibility since the introduction of online voting in 2015.
However, the ICC did agree with NAHB that the EV ready and electrification proposals were out of scope. This was an interesting turn of events, for one main reason: Concerns about scope had not previously been raised in testimony, nor did ICC staff rule the proposal out of scope when they were submitted in January 2019.
Some in the energy-efficiency community felt this was ICC’s way of throwing NAHB a bone. After all, ICC does have a special relationship with this particular strategic partner. The efficiency gains were preserved, so this was a minor setback for efficiency advocates. This would prove, however, to be the first shoe to drop.
After completing the appeals process, the ICC Board “referred a number of issues raised by NAHB to the Board Committee on the Long-Term Code Development Process (LTCDP) for further review, including the definitions of governmental members and voting representatives, the procedures for the in-person and online votes, and the issue of cost impact”. One item not mentioned in NAHB’s press release is the idea of ditching the IECC in favor of a standard, ala ASHRAE’s 90.1 or 189.1 or similar to what happened to the IgCC.
What started as a line-item on an October LTCDP committee meeting agenda turned into an unwritten proposal being discussed as the primary topic of conversation on a November 10 committee call. Shortly after it was discussed, another call was set up on November 20 for final discussion and a committee vote.
The verdict, 9-6-2, was in favor of the still unwritten proposal. This recommendation was then sent to the ICC Board for deliberation in December. On first consideration, the Board went into executive session to hear the committee’s report. Why an executive session was needed to hear a report is unclear but, at best, seems suspect given the proposal comes from ICC’s special strategic partner.
The ICC Board was set to discuss it later in December but has postponed any decisions until mid-January. The postponement can be attributed to two things: 1) the outcry from efficiency advocates, to which ICC responded with a form letter listing some previously unknown details of the unwritten proposal, and 2) the belatedly-recognized need for ICC’s members to be aware of this significant change.
A Quiet Coup Takes Shape
At no time during the LTCDP discussion, nor during the ICC Board’s initial information gathering, were ICC’s governmental members apprised of the possibility that their voice in future code development might be stripped from them. Only the (approximately) 55-60 people who attended the LTCDP calls were in the know, and I can vouch that not all of the attendees were code officials.
In fact, I would say code officials made up half or less of the callers. But even if they were the only demographic on the call, that represents a tiny fraction of the overall governmental member population.
The ICC is now scrambling to gather its members’ and stakeholders’ feedback, though the timing of the comment period (Dec. 18 to Jan. 11) is not conducive to receiving responses.
Given the date range, some are questioning whether the ICC really wants feedback at all. It may be minor, but I find it notable that ICC isn’t leveraging their online comment platform, cdpACCESS, to collect comments. Instead, it is using a simple e-mail address that few probably know and/or use.
Actions speak louder than words, and the barely publicized, yet swift action taken by the ICC on this issue has some wondering whether this change is already a foregone conclusion.
If this does go through, it raises a couple of questions for me. ICC is positioning the code vs. standard as mere semantics. That may be so, but the devil is always in the details. For instance, the ICC says it will utilize their consensus procedures. On page 2 of the 16-page document, it states that “no single interest category should constitute more than 1/3 of the membership of any committee.”
That’s no change from the current committee makeup where NAHB has 1/3 of the committee seats. The big difference with a standard is that it’s the committee that is making the final decision, not just a recommendation to a larger group of voters.
Also on that aforementioned page 2, it lists the committee’s interest categories. Depending on how you interpret those categories, it can be challenging to see how energy efficiency advocates get more than one seat on the committee. Meanwhile, I can see a pretty clear path for NAHB to retain their overall 1/3 committee membership they are granted through their MOU with ICC.
The other caution flag I see is ICC’s claim that “the energy provisions will undergo continuous maintenance in order to be responsive to advances in technology.” This would kick in after the 2024 IECC publication. Oh boy! I can’t wait for the triennial “fun” of the IECC development process to occur every year!! I can think of… no one who wants that.
Will the Energy Code Survive?
We’ve now reached the point where the future of the model energy code looks very uncertain. Should the ICC Board not move forward with an energy standard and the process remains nearly the same, NAHB may decide to lead a small revolt. On the other hand, a newly created process that entrenches NAHB within a powerful, code-writing body might cause energy efficiency advocates to consider a similar move.
There is already a rumor of a “sustainability supplement” being circulated to jurisdictions upset at the reversal of the EV-ready and electrification proposals. This would allow them to amend their local codes with code-approved language. However, it would create the start of a chasm between the model code (or standard) and a number of local codes.
Now, one could point out that the ability to amend local codes is and has always been an option. The difference here is that we’re talking about a distinct divergence between local codes introducing measures that the ICC Board has ruled out of scope in their model code.
As we look into the future and take into consideration policies like the Paris Climate Accord or net-zero emissions targets, it begs the question: What other sustainability measures will jurisdictions look to codify? Yes, they can look to adopt the IgCC, but that’s only applicable to commercial construction.
What about all the new residential buildings? Those measures will likely find their way into the local energy codes. Such a move would further the separation between local codes and the model code.
Could we, at some point, see something harkening back to the days of the regional codes? Or even worse, “blue” and “red” codes? I sincerely hope we don’t find ourselves in that situation. That certainly wouldn’t benefit the production builders, who prefer a consistent regulatory landscape.
Maybe this speculation is overboard and unwarranted. Maybe cooler heads will prevail. It would certainly be nice to think so. However, such hypotheses shouldn’t be dismissed out of hand. After all, I’ve just detailed how one very slanted voting outcome has the ICC on the verge of detonating an established process and alienating the vast majority of their dues-paying members to appease one strategic partner.
The ICC finds itself in a precarious position. Will it find a palatable path for all parties, or will it make a decision that causes significant repercussions, some of which would only be understood through the lens of history?
Mike Collignon is Executive Director and Co-Founder of the Green Builder Coalition, a not-for-profit association dedicated to amplifying the voice of green builders and professionals to drive advocacy and education for more sustainable home building practices.
Image Source: https://cdn.drawception.com/drawings/zh00bLhTdw.png