Kim Havey had a problem. Minneapolis was generating more and more of its electricity from renewables, dropping climate-warming pollution from power to record lows. But emissions from natural gas, which is used to heat buildings and stovetops, were climbing ― overtaking power plants as the city’s top source of carbon pollution in 2017.
Nearly three-quarters of Minneapolis’ emissions came from buildings, and the city was undergoing a construction boom to accommodate a population growing faster than at any point since the 1950s. So Havey, the city’s sustainability director, helped craft new rules mandating more efficient standards for all those new buildings.
But there was a hurdle. Buildings over 50,000 square feet ― medical offices, corporate headquarters, apartment buildings ― fell under state jurisdiction. And Minnesota, like most states, used the International Code Council’s model national energy code as its standard. The ICC ― which, as one newspaper once put it, like the World Series, primarily concerns the U.S. ― is a nonprofit consortium of construction industry groups, architects and local government officials that creates the standard building codes used in towns and cities in all 50 states.
Then Havey learned that as a government official responsible for buildings and energy codes in his city, he could register to vote on the ICC’s next round of energy codes in November 2019. He wasn’t alone in this endeavor. The slow progress in reducing emissions from buildings and a decade of virtually unchanged ICC codes were frustrating officials across the U.S., and hundreds applied that year to vote in a process that takes place every three years.
By the time votes were tallied, this army of Leslie Knopes had won an overwhelming victory. The ballots went 3 to 1 in favor of mandates to ratchet up energy efficiency and require new homes and buildings to include wiring to hook up electric vehicle chargers and electric appliances.
But the triumph was short-lived. The building industry groups that have long wielded dominance over policy at the ICC soon began challenging not only the approved measures, which they called costly and unrealistic, but the members’ right to vote at all.
The National Association of Home Builders, whose influence over the ICC has drawn scrutiny from Congress, demanded the organization reconsider the eligibility of dozens of city departments that cast ballots in 2019. Havey and his entire department were among them.
“We were taking this very seriously,” Havey said. “We followed the process to the letter of the law.”
Now, the ICC is deciding whether to end all future voting. A final decision from the nonprofit’s executive board, which is made up of 18 government officials from across the country, could come as early as next Wednesday.
The developers and building industry groups that want to end voting say doing so will help ensure the integrity of model energy codes, which they say were damaged with votes from misinformed government officials who don’t understand building codes. Among the organizations that have backed the voting change are some of the nation’s largest and most powerful industry lobbies, including Leading Builders of America, the American Gas Association and the National Association of Home Builders. They say the get-out-the-vote campaign that led to the biggest turnout in ICC voting history amounted to “manipulation” by “special interests.”
But critics of changing the process ― namely city officials, environmentalists and architects ― say this was just the latest example of the building industry deploying its disproportionate influence over the ICC. The proposed change, they say, amounts to voter suppression and threatens to delegitimize the code itself, risking splintering the national standard if states and municipalities keen to reduce emissions stop using it.
Why pollution from buildings matters
When most people think of the pollution changing the planet’s climate, the images that come to mind are billowing smokestacks at power plants or the smoggy haze that settles over traffic-jammed highways as exhaust pours from automobile tailpipes. Yet blocks of suburban homes and city skylines themselves may deserve similar attention. Buildings account for 40% of all energy consumed in the U.S. and a comparable portion of greenhouse gases produced.
Buildings are also now increasingly the venue for the next big fight over climate policy. A growing number of cities are setting deadlines to ban natural gas in new construction. San Francisco, New York City and Seattle are three of the latest. That has led some states to push back. Last year, Arizona, Louisiana, Oklahoma and Tennessee all passed state laws barring their cities from exacting such bans. Another 12 states ― Arkansas, Colorado, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Mississippi, Missouri, Texas, and Utah ― are now considering preemption bills of their own, prodded by lobbying and advertising campaigns from gas utilities that see the hookup bans as an existential threat.
The ICC’s energy code appears to be another phase of that conflict.
Since the ICC’s energy code became the standard in cities and towns across all 50 states and much of the Caribbean and Latin America more than two decades ago, the model, known as the International Energy Conservation Code, has only undergone two major periods of adjustment. In 2009, advocates pressed for significant improvements, ultimately increasing the efficiency of the code by 11 percent over the 2006 level. In 2012, the code ramped up again, this time with efficiency levels 37 percent greater than 2006.
The Department of Energy found that the development cycles in both years slashed homeowners’ annual energy costs by 32 percent.
But tighter rules drew builders’ ire. In 2011, the National Association of Home Builders brokered what The New York Times described as a “secret deal” to stack bureaucratic committees within the ICC and block code changes it opposed. The subsequent 2015 and 2018 codes made only modest 1 percent efficiency improvements. (The National Association of Home Builders defended the agreement, saying it “provides builders a reasonable voice.”)
“The governmental officials realized the only way to change all this and end this drought in efficiency improvements was to vote,” said Bill Fay, the director the Energy Efficient Codes Coalition, which pushed for more aggressive standards.
Groups like the coalition and the U.S. Conference of Mayors, which represents cities with populations over 30,000, responded by organizing a get-out-the-vote campaign for ICC, letting government officials from the fire, health, housing, sustainability and utilities departments know they likely qualify to vote.
Hundreds applied to vote. Not all successfully registered. John Phelan, an energy services manager working for the city of Fort Collins, Colorado, said the ICC rejected four of his colleagues’ registrations. But 30 were able to vote.
“It was a huge moment,” he said. “Nobody knew until 2018 or 2019 that there was this process built into code adoption that wasn’t being used.”
The campaign helped secure a code that increased efficiency for commercial buildings more than 10% and efficiency for residential buildings 8% to 14%. That amounts to reductions of as much as 50 million metric tons of carbon dioxide per year by 2030, equal to shutting down 47 coal-fired power plants.
Yet the record voter turnout drew swift backlash. In a video posted to YouTube, Leading Builders of America Chairman Allan Merrill said the votes raised “serious concerns that the code development process was manipulated to the benefit of special interest groups at the expense of future homebuyers.”
The National Association of Home Builders decried “an influx of voters who were incorrectly validated for the 2019 code cycle” in a February 2020 letter to ICC CEO Dominic Sims.
“If the efforts taken to influence and direct the outcome … are left unchecked, the future code development cycles will become a free-for-all,” wrote Gerald Howard, the association’s chief executive.
Along with the American Gas Association, a trade group for natural gas utilities, the building industry heavyweights appealed 25 measures the ICC’s voters had overwhelmingly approved. The ICC’s three-member appeals board overturned five provisions, including ones making it easier to switch to electric water heaters and requiring builders to include the circuitry for electric vehicle hookups.
The appeals board then took an unusual step. Though the body normally made suggestions based solely on ideas appellants proposed as part of their appeals, the board introduced its own solution: End voting altogether. It could do so by changing the energy code to a standard, which undergoes a separate bureaucratic process that takes governmental opinion into consideration but does not put the final product to a vote.
In a lengthy statement, ICC spokesperson Madison Neal said the group “regularly reviews the code development process.” The appeals board, Neal said, concluded that the energy code “would benefit from the additional time for debate and continual updating that is afforded by a standard development process.”
Advocates saw the proposal as another example of the industry’s influence over the ICC’s bureaucracy. One of the three appeals board members was Anne Anderson, a longtime member of the National Association of Home Builders who has worked closely with the group’s code-making process. The other two were ex-government officials: former New Jersey state official John Terry and former Michigan state code department official Henry Green.
“You had a person with deep, deep relations with the NAHB who was put on a three-person appeals board that’s going to make a decision on an NAHB-filed appeal,” Fay said.
The National Association of Home Builders said it “did not ask the ICC appeals board or any appeals board member including Anne Anderson before, during or after the hearing to change the ICC process to a standards process.”
Anderson denied that she proposed the idea, and said this was her first time serving on an appeals board, so she didn’t know whether it was unusual for members of the board to put forward their own solutions. The idea, which she said one of the other two board members proposed, came in response to an appeal challenging the eligibility of officials from certain city agencies.
“We couldn’t find enough evidence that there was any voter ineligibility or anything wrong with what happened, per se, per the procedures outlined by the ICC,” Anderson said.
Still, she said the new majority of voters made mistakes. In one case, she said, the author of a proposal to improve battery storage in solar-equipped homes retracted the proposal, stating during a hearing that there was an error in how it was written. But energy efficiency advocates gave the idea their blessing, and voters approved the flawed proposal anyway, she said.
“When the proponent says I want you to vote this down and you vote for [it] anyway, that’s a sign,” Anderson said. “We thought maybe this topic needs to be a standard and needs to be developed through the standards methods, which would be more deliberative.”
Once the appeals board’s recommendation to change the code process went to the ICC’s long-term code planning committee, Craig Drumheller, an assistant vice president at the National Association of Home Builders and a voting member of the committee, endorsed the idea with his own motion. The motion passed 8 to 6 with two abstentions, putting the proposal before the ICC’s executive board for final approval.
“Going forward, if we’re going to deal with issues like integrating renewables, advancing electrification, and decarbonization, we require a different process,” Clayton Traylor, the vice president of state and regulatory affairs at Leading Builders of America, said during a hearing on the change last month. “If we want to make progressive change over the long haul, we’re going to need a different system.”
‘A real problem’
The next big step was to hold a public hearing in January. City government officials and architects seemed shocked and dismayed at the proposal, and handily outnumbered speakers who wanted to end voting.
The confusion underscored the proposal’s dramatic shift. On its website, the ICC boasted that the governmental voting process “leaves the final determination of code provisions in the hands of public officials who, with no vested financial interest, can legitimately represent the public interest.”
In years past, the National Association of Home Builders had actually lamented the low turnout among governmental voters. In a 2016 blog post, Phillip Hoffman, the group’s construction and codes committee chair, called low turnout “a real problem.” In 2018, Drumheller himself called for more voting and praised his organization’s distribution of voter guides to make voting easier.
Yet the National Association of Home Builders Chair Chuck Fowke struck a markedly different tone at the January hearing.
“The online vote allows for political manipulation of the outcome,” he said. “The end result is neither desirable nor appropriate. Changing to a standards process … represents the views of the broader ICC membership.”
The statement reflected what Ron Jones, founder of the trade publication Green Builder, called the building industry’s effort to “tighten their long-standing stranglehold on the policy decisions” at the ICC.
“Having failed to achieve their goals under a code development process that has long been slanted in their favor already, they have undertaken the current manipulation strategy through a shameless attempt to change the rules in order to once again tilt the playing field to their advantage,” Jones wrote in a December blog post. “All of this is taking place at an alarming pace during the holiday season in hopes of flying under the radar and in time to institute their desired changes prior to the upcoming Inauguration Day.”
But Fowke may also be identifying a difference in priorities. Developers say the point of codes is to ensure safe, affordable homes, and that they oppose measures that add costs for nominal environmental benefits. City officials and environmentalists bent on slashing emissions might look to the way added insulation, even in homes built in warmer climates, adds up on the grand scale and protects against increasingly unpredictable weather events. Developers, by contrast, see how it adds to the price of the home.
For example, insulation that adds $1,000 to the cost of the home but only saves about $42 per year in a state like Georgia or Florida “doesn’t make sense,” Anderson said.
“It’ll take 100 years to pay off,” she said.
Asked whether this month’s freak winter storm in Texas, where building codes’ lax insulation standards exacerbated blackouts as homes failed to hold in heat and used more and more electricity to stay above freezing, Anderson said people “don’t want to spend money to insulate their homes for something that happens once every 100 years.”
“It was an outlier, and typically we design our building codes based on historical events,” she said. “Unless you have data that says Texas is getting colder, this event was an outlier.”
Changing the energy code to a standard would still mean the same governmental officials could vote on other parts of the building code.
“The irony is if they keep their ICC membership,” Fay said of city officials, “they can vote on the plumbing code. They can vote on the swimming pool code. But they can’t vote on the energy code, which is where they have expertise.”
By the time the ICC held a hearing on the change in January, opponents to ending the voting process outnumbered supporters. The proposals to the energy code were largely in line with things cities were already doing, many insisted. Others argued that a unified code will only help the property owners avoid costly retrofits when climate regulations come into force in the years to come, noting that in recent months, San Francisco, New York City, and Seattle all set dates by which gas hookups for new buildings will be banned.
“Please, please reconsider,” Kevin Burns, the mayor of Geneva, Illinois, pleaded during his testimony.
“What’s the point of disenfranchising the voices of thousands of governmental members when this process has been so successful?” Christopher Chwedyk, a representative for the American Institute of Architects, said during the hearing. “This is 100% unacceptable.”
Of the written comments submitted to the ICC since then, 75 percent oppose eliminating voting. Of the 25 percent that supported the change, 54 percent were builders, and 4 percent came from the fossil fuel industry; in particular, the American Gas Association.
The ICC said replacing the energy code with a standard “would not remove governmental members from the development process” and said it would instead “promote equivalence in voices for standard development, with specific provisions to prevent dominance by any interest category.”
“The committee would include governmental representatives,” Neal said in the statement.
In her own written statement, Susan Asmus, a senior vice president at the National Association of Home Builders, said the standards process would “provide for a balanced committee representing a variety of interests, including governmental representatives, that can have more deliberative discussions on issues such as cost-effectiveness and conceptual changes.”
Still, the effort to end voting has raised some eyebrows. The trade publication Energy News Network covered the proposal, as did New York Times opinion columnist Justin Gillis, who warned in January that “a lobby is trying to block codes that save homeowners money and fight climate change.” The Natural Resources Defense Council, the powerful environmental group that President Joe Biden’s climate czar previously led, called it “a thinly veiled attempt to prevent clean energy progress from happening in the future.”
Three Democratic committee leaders in the House of Representatives echoed those concerns in a letter to the ICC raising concerns that the National Association of Home Builders’ influence over the code-making process is undermining its “integrity.”
“Please explain the rationale for this proposal,” Reps. Frank Pallone, a New Jersey Democrat; Bobby Rush, a Democrat from Illinois, and Colorado Democrat Diana DeGette, the chairs of powerful energy committees and subcommittee, wrote in the letter.
Earlier this month, the ICC’s Sustainability Membership Council voted 6 to 1 to urge the board to reject the proposal to end voting. It’s unclear how much weight that recommendation will carry.
Cities like Minneapolis aren’t waiting around for the ICC to come in line with its climate targets. Havey, the sustainability director, said the city is working with Governor Tim Walz, a Democrat, and lawmakers in its state legislature to pass stricter new building codes statewide. If the ICC doesn’t keep up, it could just become irrelevant.
“We’re trying to go any which way we can ― from the state legislature, to public utilities, to the ICC ― to get net-zero buildings,” Havey said. “Every building that’s not net-zero energy is adding to the problem, and then we have to go back after it’s built to fix it. And that’s the most expensive way to do it.”