An update on the Colorado lawsuit….
Photo by Pieter van de Sande on Unsplash
The bottom line: Building Performance and Emissions Standards are key regulatory tools in the fight against climate change.
If you need a refresher on the Colorado BPS lawsuit, check out our earlier blog post, here and this comprehensive summary from the Public Law Health Center.
It remains our position that this lawsuit is irrelevant from a compliance standpoint - meaning that owners in BPS jurisdictions should not “wait for the litigation” - instead they should continue to work towards (and beyond) compliance. High performing, healthy buildings are what the market and tenants are looking for, so whether they are regulated or not, they will be in demand.
That said, motions to dismiss were recently filed, so an update is in order.
The City, County, and State Defendants filed motions to dismiss, and interested groups moved to intervene (including the Coalition for Community Solar Access, Colorado Solar and Storage Association, Natural Resources Defense Council and Sierra Club). As expected, the Defendants challenged the applicability of the Berkeley decision (the pre-emption or “gas case,” again, see our earlier post) and raised other procedural issues, including standing (ability to bring a lawsuit or “stand in court”), issues with lack of specificity in the pleadings, ripeness (courts try to avoid premature or speculative review by requiring particular, actual or imminent harm), and statute of limitation issues (certain claims must be brought within certain time periods). As expected, the Defendants leaned on the fact that the Berkeley decision (heavily relied upon by the Plaintiffs) has no bearing on Colorado courts, and that even if it did, that holding was tenuous at best, with numerous justices dissenting.
Denver’s Motion to Dismiss Complaint
This section of the City and County of Denver’s motion to dismiss summarizes the issue:
If you want to learn more about Berkeley, join IMT’s webinar on Tuesday, June 9th, The 9th Circuit’s Berkeley Decision: Why Building Performance Standards are safe from EPCA preemption. Registration info. here.
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