« Law - Student loan forgiveness for "public service" job - what happens if government changes mind partway though? | Main | Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 10 NFP memorandum decision(s)) »

Thursday, December 22, 2016

Ind. Gov't. - "Pence could leave state with no energy standards for buildings" Or not

This is a troubling Dec. 21st story by Hayleigh Colombo of the IBJ. It begins:

Indiana could be without an energy code for up to two years after the Pence administration decided against extending the current one—a move that critics say could have negative results for Hoosiers’ energy bills and lead to a “slumlord’s dream” scenario.

The state’s energy conservation code—which covers commercial buildings and apartments and sets minimum energy standards—expires Dec. 31. That's before Gov.-elect Eric Holcomb takes office.

Groups including the American Institute of Architects hoped the Pence administration would extend the code for one year while the new administration worked on updated rules. The current code is based on 2007 industry standards.

But state officials say that the Fire Prevention and Building Safety Commission “could not” readopt the former code after two groups requested changes, although it's not clear why. To make changes, an agency must launch a new rule-making process that can take up to two years but that can happen even as an older rule remains in place.

And without renewing the energy code now, the state will be without regulations to dictate requirements for heating and air, insulation and lighting systems.

“The commission is pursuing energy code adoption, but the final product will take time to come to fruition,” said spokesman John Erickson of Indiana’s Department of Homeland Security.

But the groups say that is the opposite of what they wanted, and that they’re still hoping the Pence administration extends the code by the deadline. Holcomb's spokesman, Pete Seat, said the incoming governor—who is currently the state's lieutenant governor—is aware of the energy code issues but wouldn't comment on the controversy. He said Holcomb "will address these issues, as well as others, after he is sworn into office."

Isaac Elnecave, senior policy manager for the Midwest Energy Efficiency Alliance, said he was shocked to hear that his group’s request to update the state’s energy standards could lead to a decision not to renew current ones.

“I have never heard of a state that suspends an actual code while an upgrading process is underway,” Elnecave said. “That was absolutely not the intention here, to put it bluntly. It actually is the opposite of what we asked for.”

And the result, which would impact new construction, could have negative consequences for middle- or lower-income Hoosiers, according to Jason Shelley, executive director of AIA Indiana.

ILB: What is the Problem Here?

Looking at the Indiana Fire Prevention And Building Safety Commission Rule-Making Docket Index reveals only one "rulemaking" action for 2016, LSA Doc. #16-329 - Readoption.

This document, posted 8/10/2016 in the Indiana Register, indicates that 675 IAC 19-4 2010, the Indiana Energy Conservation Code, is set to "sunset", apparently on Jan. 1, 2017.

A special "sunset" statute applies, IC 4-22-2.5. Sec. 4 covers requests for changes.

Importantly, Sec. 5 provides:

If a rule is not readopted before the expiration date for the rule and the governor finds that the failure to readopt the rule causes an emergency to exist, the governor may, by executive order issued before the rule's expiration date, postpone the expiration date of the rule until a date that is one (1) year after the date specified in section 2 of this chapter.
Problems resulting from the overarching sunset statute have occurred in the post. Most notably, in 2011, it wasn't discovered until July 9th that the entire FSSA has been repealed, effective June 30th. See a number of ILB posts here (see especially this one). Gov. Daniels revived it retroactively by executive order.
___________
The ILB has written a number of times about the way the State handles the various building codes. See this post from August 7, 2008. In brief, the state entities incorporate copyrighted national building codes by reference, and the Indiana rules simply consist of a statement saying that, plus a list of any exceptions. They of course mean nothing to you unless you read them with a copy of the $$$ copyrighted national code. (This is explained more fully in the linked post.)

Posted by Marcia Oddi on December 22, 2016 10:01 AM
Posted to Indiana Government