By Adam Pagnucco.
Earlier today, I printed testimony from a condo owner in Friendship Heights decrying huge potential cost increases caused by the county’s Building Energy Performance Standards (BEPS) law. Now it turns out that some condo owners are doing more than protesting – they are suing. And the identity of one of the litigants should strike fear in politicians across Montgomery County.
First, let’s get to the litigation itself. Like Montgomery County, the State of Maryland has a law mandating Building Energy Performance Standards. One of the many parts of the Climate Solutions Now Act of 2022 establishes energy standards for most large buildings in Maryland. According to the state, “Buildings covered under state policy are 35,000 square feet and larger (excluding the parking garage area). Historic buildings, public and nonpublic elementary and secondary schools, manufacturing buildings, agricultural buildings, and federal buildings may apply to be exempted from the reporting and performance standards.” The Maryland Department of the Environment is required to develop regulations reducing emissions from these buildings between 2030 and 2040 with an eventual goal of net-zero direct greenhouse gas emissions. The regulations are in effect as of 12/23/24 and now a group of plaintiffs has gone to court to stop them.
Two days ago, a coalition of business and homeowner groups filed suit against the law in the U.S. District Court for the District of Maryland. The plaintiffs include:
Maryland Building Industry Association
Building Owners and Managers Association of Greater Baltimore
NAIOP Maryland
NAIOP DC
Maryland Multi-Housing Association
Washington Gas Light Company
Leisure World Community Corporation
Elizabeth Condominium Association (Chevy Chase)
Promenade Towers Mutual Housing Corporation (Bethesda)
Willoughby of Chevy Chase Condominium Council of Unit Owners. (This association represents the residence of the person whose testimony on BEPS I quoted earlier today.)
The case made by these plaintiffs against the state BEPS law is the same one made by another group of plaintiffs (some of whom are the same parties) against the county’s electric building law: it is allegedly preempted by federal law. In their complaint, the plaintiffs write:
The Energy Policy and Conservation Act (“EPCA”), 42 U.S.C. §§ 6201-6422, regulates the energy use and efficiency of many gas appliances and expressly and broadly preempts state and local laws on that subject. The Maryland BEPS fall within the heartland of EPCA’s express preemption provision because they regulate and restrict the energy use and efficiency of these covered appliances by restricting and penalizing the carbon dioxide emissions from covered buildings. As such, the Maryland BEPS are preempted by EPCA and unenforceable as a matter of law.
As does the electric building suit, this complaint cites how the 9th Circuit Court of Appeals threw out a ban on gas in new construction by the City of Berkeley on the grounds that it was preempted by federal law last year. The 9th Circuit cited the same federal law discussed in this complaint. The plaintiffs are seeking a permanent injunction against enforcement of the state’s BEPS law. It’s probably not a coincidence that attorneys in the same law firm (Baker Botts LLP) are representing the plaintiffs in both the MoCo electric building suit and the state BEPS suit.
Regardless of the legal implications, it’s the political implications of the suit that should matter most to local politicians. One of the plaintiffs in this suit is the Leisure World Community Corporation, which represents the massive senior community in upper Silver Spring. The three precincts in Leisure World regularly lead MoCo’s communities in turnout rate. That’s no surprise given that seniors typically lead all age groups in turnout. Leisure World is a major player in elections in Council District 5 and State Legislative District 19.
But this could go further than just Leisure World. As demonstrated by the testimony of the Willoughby condo owner I quoted earlier today, seniors all over the county may become concerned by BEPS-caused cost increases. Imagine if a group of condo associations begin coordinating on this issue, send a questionnaire to candidates on whether residential buildings should be exempt from BEPS and then communicate the answers to their residents. This could turn into a sleeper issue in the 2026 elections.
An army of angry seniors augmented by other condo owners and perhaps renters too (because BEPS applies to large apartment buildings) is a nightmare scenario for politicians. Everyone who plays in local politics should pay attention.
A copy of the federal complaint against the state can be downloaded below.