Blogs > Code Watch > September 2013

Building Code State Spotlight: New Mexico

The back-and-forth on New Mexico’s energy code is a tale that spans two gubernatorial eras and years of partisan politics. What started as a long series of negotiations between industry and energy efficiency advocates has now escalated to the state legislature and New Mexico court system. While the state politicians try to make their power play, the homebuilding market has moved above and beyond whatever code is ultimately hashed out.

A Tale of Two Governors

Gov. Bill Richardson

A former U.S. Secretary of Energy, Bill Richardson was elected governor of New Mexico less than two years after he left Washington, D.C. Richardson had his own style, which could be diplomatically described as assertive, and bluntly described as bullying.

When it came time to update the state’s energy code in 2009, Richardson wanted something much improved over the then-2006 energy code. An 18-month vetting process followed, and it included such groups as the state homebuilders association and the Southwest Energy Efficiency Partnership (SWEEP). Commercial interest groups, such as the Associated Builders & Contractors and the Associated General Contractors, did not participate in the process, claiming it was unfair and too costly to make such upgrades.

The involved parties negotiated an energy code that went 20% beyond the 2006 IECC, or approximately 5% beyond the 2009 IECC. It included a performance path and even a HERS rating tied to the increased energy efficiency requirements. (The state’s HERS minimum of 89 has since been proven to be less stringent than intended, but that information wasn’t known until late 2012.) As for residential-specific changes, there weren’t many beyond the aforementioned HERS provision. Climate zones were further refined and there was an amendment eliminating the requirement for doors on kiva fireplaces. This was accepted by everyone involved, though some may have felt their approval was given under duress.

Gov. Susana Martinez

Due to term limits, Richardson’s time in office ended when 2011 began. The election for his successor pitted Susana Martinez, a Democrat-turned-Republican endorsed by Sarah Palin, versus Diane Denish, Richardson’s two-term lieutenant governor. Martinez won by a little less than 7% of the vote, or approximately 40,000 votes.

Part of Martinez’s platform was to overturn everything Richardson did regarding energy efficiency. This was to appease her political base, which included large commercial contractors who felt wronged by the “Richardson” energy code and wanted to see it weakened. It’s also important to point out that the state is divided on political ideology. The northern half, including Santa Fe and a core contingency in Albuquerque, is a very progressive, “deep blue” area of the state. The opposite is true for the southern part of New Mexico.

Gov. Martinez tried to repeal the “Richardson” energy code within months of taking office. The Martinez administration claimed “the building requirements were too expensive for developers and property owners.” However, the state’s Construction Industries Commission (CIC) failed to supply a reason for repealing the codes.
A lawsuit was filed by environmental advocates including the Sierra Club, SWEEP and the New Mexico Environmental Law Center (NMELC) to prevent the repeal, citing the lack of reasoning and lack of proper public notice.

When considered by the state’s Court of Appeals, they ruled they “could not provide ‘a rationale for a decision when the administrative body fails to do so’ as it could for district court rulings because of separation of powers.” The Court told the CIC to reconsider their decision to repeal, take a new vote, and state their reasons for the vote in writing. Finally, the Court’s decision meant that the “Richardson” energy code was still in effect, as the repeal was deemed invalid.

In a move rife of political bravado, the New Mexico Department of Taxation and Revenue said it would continue to enforce the repealed version of the codes because the court didn’t rule on the merits of the new building codes. In essence, the state was going to ignore its own Court of Appeals. The NMELC went back to the Court of Appeals to have the Construction Industries Division (CID) held in contempt for enforcing the wrong energy code. Shortly after the motion was filed, the CIC (which falls under the purview of the CID) said they would act quickly and develop suitable reasons.

The Market Has Spoken

While all this political wrangling takes place in state’s chambers in Santa Fe, the homebuilding market has embraced energy efficiency. Thanks to a state tax credit on homes built to either the Build Green New Mexico or LEED for Homes programs, homes are routinely being built to HERS levels below 60. In fact, the tax credit program is so popular, $10 million in 2013 funds are already claimed, and most of the $5 million budget for 2014 is spoken for. Net-zero-energy homes are not considered rare, and it could be argued that water efficiency has supplanted energy efficiency as the new challenge for New Mexico homebuilders.

Meanwhile, it is looking favorable that the City of Santa Fe will adopt a commercial green building code to accompany its four-year-old residential green building code. Based largely on the International Green Construction Code (IgCC),they recognize it has not been widely adopted. However, they are looking to take a national leadership position on environmentally responsible construction. It is also rumored the residential HERS requirement would fall between 60 and 70, and likely the lower end of that range.
When it comes to the state energy code, Kim Shanahan of the Santa Fe HBA would like
“to create certainty and reach a compromise that satisfies everyone.” His group recently met with the NMELC to start a dialogue.

Posted: 9/30/2013 1:23:43 PM by Mary Kestner | with 0 comments

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