Maryland Building Industry Association v. McIlwain

The federal district court for the District of Maryland granted the Maryland Department of the Environment’s motion to dismiss a preemption challenge to Building Energy Performance Standards (BEPS) adopted in 2024. The BEPS require covered buildings to have net-zero greenhouse gas emissions by 2040. The plaintiffs challenging the law alleged that the BEPS emissions standards are facially invalid because they penalize gas appliances covered by the Energy Policy and Conservation Act. The court found that EPCA did not preempt the BEPS because the BEPS “do not ‘refer to’ or have an impermissible ‘connection with’ the ‘energy use’ or ‘energy efficiency’” of consumer or industrial appliances.

The Secretary of the Maryland Department of the Environment filed a motion to dismiss a lawsuit challenging the Maryland Building Energy Performance Standards as preempted by the Energy Policy and Conservation Act (EPCA). The Secretary argued that EPCA’s statutory language did not support preemption. The Secretary also argued that the Ninth Circuit’s decision holding that EPCA preempted the City of Berkeley’s prohibition on natural gas infrastructure in new buildings was wrongly decided and that, in any event, it did not apply to the Maryland standards because the standards were not a building code for new construction and also not a prohibition on the use of gas-powered appliances.