Earlier today citizen groups representing the interests of thousands of residents and business associations with thousands of members filed suit in the U.S. District Court against the Secretary of the Maryland Department of the Environment challenging the Maryland Building Energy Performance Standards (BEPS) program as preempted by Federal statute and unenforceable as a matter of law.

The BEPS regulations, which program’s goal is for buildings to ​achieve zero net direct greenhouse gas emissions by 2040, are in effect as of December 23, 2024, requiring building owners to report GHG emission benchmarking data in 2025; hence this lawsuit was filed within 30 days of that effective date.

The BEPS regulations purport to implement the Climate Solutions Now Act of 2022, but the Maryland Department of the Environment has gone far beyond that statute with the now effective September 6, 2024 version of the revised second BEPS regulations.

The diverse plaintiffs in case no. 1:25-cv-00113-JRR range from the Maryland Building Industry Association, Inc., The Building Owners and Managers Association of Greater Baltimore, Inc., NAIOP Maryland, Inc., NAIOP DC | MD, Inc., and Maryland Multi-Housing Association, Inc., to Washington Gas Light Company, and includes the Leisure World Community Corporation,  The Elizabeth Condominium Association, Inc. the Promenade Towers Mutual Housing Corporation and The Willoughby of Chevy Chase Condominium Council of Unit Owners, Inc.  That the biggest real estate trade association and largest residential condominium are aligned as plaintiffs in and of itself makes clear the great harm and damage that Maryland BEPS will do.

Specifically, the lawsuit seeks “a permanent injunction enjoining Defendant from enforcing or attempting to enforce the Maryland BEPS” and for “a declaratory judgment, ..  that the Maryland BEPS are preempted by federal law because they concern the energy use of appliances covered by the federal Energy Policy and Conservation Act (EPCA) and are therefore void and unenforceable.”

The 26 page Complaint describes that the federal “EPCA 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 regulations “fall within the heartland of EPCA’s express preemption provision because they too purport to regulate and restrict the energy use and efficiency of these appliances. As such, the Maryland BEPS are preempted by EPCA and unenforceable as a matter of law.”

This is not a matter of party politics. The federal EPCA was proposed by President Nixon and ultimately enacted by Congress and signed by President Ford. But be assured frolic and detours exceeding federal energy policy (.. while encouraged under the Biden administration) will all but certainly not be tolerated under a Trump administration.

The Complaint is substantially similar as the litigation commenced to have two Colorado BEPS laws determined to be preempted by the federal EPCA.

And the Complaint explains “the Ninth Circuit’s recent invalidation of the City of Berkeley’s prohibition on gas piping in new buildings illustrates how EPCA preemption operates to prohibit attempts to regulate the energy use or efficiency of gas appliances.”

Some have suggested a BEPS program could exist pendent to EPCA, but not only is Maryland BEPS not such a standard, but it is far more burdensome than any other similar enactment in the country and clearly made void and unenforceable by the Supremacy Clause of the U.S. Constitution.

Those who see this Maryland case as a “not my chicken” moment are not correct; this is not someone else’s problem. This lawsuit is part of a groundswell from Berkeley, California to Denver, Colorado to Washington, D.C., and now Maryland, in dramatic legal confrontations over wrongheaded environmental regulation and illegal energy policy by governments behaving badly in the name of climate change.

The lawsuits aver that these bans on fossil fuel are more than just poorly executed public policy; they are part of a broader trend that plaintiffs allege is an overreach of state and local governmental power. With similar lawsuits pending in Montgomery County, Maryland, and Washington, DC, and nationwide people are rallying around what they see as a pattern of unconstitutional and unlawful environmental local government action that violates the longstanding precept of a single federal national energy policy.

While the attorneys we have consulted, to the one, suggest the outcome of this Maryland lawsuit is all but certain, the breadth of any final judicial redress may well have lasting impacts across the country on state and local governments’ abilities to establish regulatory schemes to further with climate goals, especially as some still push for all electric buildings.

Supporters of government net zero mandates argue that direct action, now, is justified to reduce carbon emissions and combat climate change while opponents are concerned over denigrating the current way of doing things before there is a replacement.

Some Marylanders would support the aims of the Climate Solutions Now Act of 2022 but believe these BEPS regulations are the wrong way to go about it. It is clear that the Maryland BEPS regulations “are preempted by federal law because they concern the energy use of appliances covered by the federal Energy Policy and Conservation Act and are therefore void and unenforceable.”