NC Gov. Cooper vetoes bill that would stall energy efficiency upgrades in new homes

Gov. Roy Cooper has vetoed a bill aimed at preventing the Building Code Council he appointed from requiring new homes to include additional insulation and other energy efficiency measures.

House Bill 488 creates a second building code council focused solely on residential construction, a change championed by the N.C. Home Builders Association. It tasks that new Residential Code Council with making changes to the existing energy, fuel gas and mechanical codes for homes.

Cooper wrote, “This bill stops important work to make home construction safer from disaster and more energy efficient, and ultimately will cost homeowners and renters more money. The bill also imperils North Carolina’s ability to qualify for FEMA funds by freezing residential building code standards.”

Home builders and the existing Building Code Council have clashed over how much the proposed changes would cost to implement and how they would impact housing costs. They’ve also argued about whether keeping the existing energy conservation code in place could imperil North Carolina’s ability to qualify for grant funding through FEMA’s Building Resilient Infrastructure and Communities grant program.

Members of the Building Code Council point to an analysis conducted by the U.S. Department of Energy’s Pacific Northwest National Laboratory that found the proposed changes would increase the costs of a new home by $4,700 to $6,500. The lab also concluded that lower energy costs would allow home owners to recoup those costs within two to four years.

Home builders argue the true cost could nearly triple the federal lab’s estimate.

Based on information provided by eight home builders statewide, the association said a house built using the council’s energy code would cost about $17,000 more to build, with a buyer paying an additional $20,400.

The Clean Energy Plan prepared for Cooper’s administration in 2019 said energy conservation codes should be updated in an effort to conserve more power. Previous versions of the Building Code Council had either rolled back energy code increases or failed to add energy efficiency requirements, the report found.

“This action has led to NC’s energy codes becoming less stringent when compared to other Southeastern states, national and international standards,” the report said.

Energy efficiency is viewed as a tool in the effort to curb climate change because limiting the use of electricity means less power must be generated, leading to lower greenhouse gas and other emissions. It also saves home owners and renters money, something Cooper emphasized in a recent interview.

In the wake of that report, Cooper’s appointments to the Building Code Council have spent roughly two years rewriting the state’s residential code line-by-line. That work would be dashed and started anew if House Bill 488 becomes law.

“Energy efficiency saves homeowners and renters money. Period. Bottom line,” Cooper said. “I think home builders are concerned about some of the upfront costs, but when you look at not the very long term but a relatively short amount of time that can be made back up quickly and can save consumers money.”

Cooper also contends the new Residential Code Council would violate the N.C. Supreme Court’s ruling in McCrory v. Berger, a 2016 case about the separation of powers between the General Assembly and Governor’s office.

While House Bill 488 would give Cooper the power to appoint seven members to the 13-member council, with nine members needing to vote to make any changes to code. That means some council members appointed by the General Assembly would need to agree with changes proposed by the Governor’s appointees.

The bill also requires all members to undergo Senate confirmation and does not grant Cooper the power to remove appointees from the newly created council.

In McCrory v. Berger, the N.C. Supreme Court ruled the General Assembly cannot appoint the majority of a board or committee because that would effectively allow the legislature to control activities of the executive branch.

“When the General Assembly appoints executive officers that the Governor has little power to remove, it can appoint them essentially without the Governor’s influence. That leaves the Governor with little control over the views and priorities of the officers that the General Assembly appoints,” then-Chief Justice Mark Martin wrote in the 2016 opinion.

Martin also included the caveat that the Court could not create an overriding rule addressing every separation of powers question about legislative appointments. Future challenges, Martin wrote, would need to be decided by carefully weighing the facts of that case.

If recent precedent holds, an override of Cooper’s veto is likely.

Republicans hold supermajorities in both the House and the Senate, meaning they can override any vetoes. To do so, three-fifths of the legislators present in both chambers at the time of the vote must vote for an override.

Support for HB488 was bipartisan. More than 20 House Democrats voted in favor of the bill, as did five Democrats in the Senate.

So far this session, Cooper has vetoed 13 bills, including a piece of charter school legislation he vetoed Friday. The General Assembly has voted to override eight of those, including six on one day. The remaining five vetoes have not yet come up for votes in either the House or the Senate.

This story was produced with financial support from 1Earth Fund, in partnership with Journalism Funding Partners, as part of an independent journalism fellowship program. The N&O maintains full editorial control of the work.