Synopsis

Trade groups for home builders and restaurants, as well as a gas utility and two property managers, sued Montgomery County, Maryland arguing that its Building Performance Standard (“BPS”) is preempted by the federal Energy Policy and Conservation Act (“EPCA”).

Why It Matters for Public Health

Climate change is widely accepted as the greatest threat to global public health, and buildings account for about one third of U.S. greenhouse gas emissions. Further, actions that reduce energy use and greenhouse-gas emissions also reduce indoor and local air pollution. For example, recent studies show that gas stoves create harmful levels of nitrogen dioxide and benzene inside the home, comparable to secondhand smoke.

The BPS policies challenged in this case are particularly important for climate and health. BPSs cap certain large buildings’ energy use then reduce that cap over a period of years. BPSs are one of the few types of green-building regulations that apply to existing buildings, rather than being limited to new buildings, renovations, or appliance replacements.

Background

EPCA is a federal law that creates energy-efficiency standards for certain appliances and allows the U.S. Department of Energy to amend those standards and create others. EPCA also preempts state and local regulations “concerning the energy efficiency, energy use, or water use” of an appliance that is covered by EPCA. Generally, EPCA preemption has been considered to preclude only state or local regulations that try to set energy efficiency standards for EPCA-covered appliances. However, in California Restaurant Association v. City of Berkeley (“Berkeley”), the Ninth Circuit held that EPCA also preempts certain kinds of regulations that are not efficiency standards, but which have the effect of preventing the use of EPCA-covered appliances. A recent decision regarding a New York City ordinance, however, reached a different conclusion regarding the scope of EPCA preemption.

The Montgomery County BPS being challenged sets declining site energy use intensity limits for large buildings based on building type and size.¹ This is the third BPS to be challenged under EPCA, following similar lawsuits brought against Denver and the State of Maryland.

The plaintiffs in this case allege that the Montgomery County regulations are preempted by EPCA as interpreted by the Ninth Circuit. Importantly, as Maryland is not in the Ninth Circuit, the federal court that will hear this case is not required to follow the Berkeley decision.

The plaintiffs argue that the Montgomery County regulations by “restricting and penalizing” the use of gas appliances therefore “concern” the “energy use” of those appliances and are preempted by EPCA. They also argue that Montgomery County does not qualify for an exemption under EPCA under its “seven factor test” related to building codes.

Litigation Status (Open)

The plaintiffs filed their complaint on March 27, 2025. Montgomery County filed a motion to dismiss or, in the alternative, for summary judgment on July 14. PHLC and, in a combined brief, the Sierra Club and the Chesapeake Climate Action Network filed amicus briefs in the case on July 21, which were docketed on July 24. The plaintiffs opposed the County’s motion and file a motion of their own on September 22. The motion was originally due by September 15, however a Motion for Extension was passed on September 10, pushing all deadlines back by 7 days. On September 22, the plaintiffs' filed a motion, which is a response to the County’s motion and also a motion for summary judgment in their favor and on October 21, the defendant filed a memorandum in opposition to the plaintiffs' cross motion and in reply to the plaintiffs' opposition. The briefing on the two cross-motions was completed on November 21. 

On April 30, the judge decided that case will not move forward until after the Fourth Circuit rules on both Maryland Building Industry Association, Inc., et al. v. McIlwain and National Association of Home Builders of the United States, et al. v. Montgomery County, Maryland. The parties will need to file a joint status report one week after the Fourth Circuit resolves both appeals.

¹ Montgomery County Code, Chapter 18A, Article 6 (2025).