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Environmental & solar groups seek to join the lawsuit over Denver and Colorado standards


In late April, about a dozen businesses and organizations filed suit against Denver and two state agencies about adoption of regulations that require measures to improve energy efficiency and reduce greenhouse gas emissions.

In June, several environmental and solar organizations asked to be part of the proceeding before U.S. District Court in Colorado.

The Sierra Club, Natural Resources Defense Council, Colorado Solar and Storage Association, and the Coalition for Community Solar Access cite several legal arguments for why they should be able to participate.

The lawsuit challenges the regulations Denver has adopted through its Energize Denver Program. The regulations apply to buildings 25,000 square feet or more. The program aims for a 30% reduction in energy by 2030.

Also targeted is Regulation 28, the building standard adopted by the Colorado Air Quality Control Commission. The regulation is in response to a legislative directive, HB 21-1268, that told the commission to enact performance standards that apply to most buildings 50,000 square feet or larger and that reduce the greenhouse gas emissions of these buildings 7% by 2026 and 20% by 2030.

The lawsuit filed by the Colorado Apartment Association and 11 others says the building regulations adopted by Denver and by Colorado are onerous. They cite the benchmarking that must be done, two levels of ASHRAE energy audits and the energy intensity use scoring system.

The benchmarking takes substantial time, say the complaints, and the basic energy audits can cost $4,500 to $13,000 per building, and the level II audits can cost between $9,000 and $27,000 per building.

Then there’s the significant cost to materially modify the aforementioned building.

One member of the lawsuit is the Denver Metro Chamber of Commerce. It has a 75,000-square-foot building in LoDo as well as other properties.

Another is Walter Isenberg, co-founder and chief executive of Sage Hospitality Group, which operates the Oxford Hotel as well as the Crawford Hotel in Union Station, plus the new McGregor Square. The company has at least 14 buildings that must be graded for energy efficiency and, at least in most cases, upgraded.

The building owners and operators argue in their civil lawsuit that the Denver and Colorado standards are preempted by the federal Energy Policy and Conservation Act, a federal law adopted in response to the oil embargo of 1972.

The environmental and solar groups contend that this argument would undermine the longstanding balance of federal-state authority and give the federal preemption provision a more expansive reach than any court has recognized.

Allen Best
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