Nevada Revised Statute (NRS) Chapter 701 grants GOE broad authority for adoption of energy policies in this state.
The GOE director has the authority to adopt any regulations that the director determines necessary to carry out the GOE’s duties pursuant to NRS 701. Given this broad authority, GOE could likely adopt appliance energy-efficiency standards and create a timeline for properties to update their appliances from less-efficient to the most-current technologies that provide a higher level of efficiency. This approach appears to be in line with the statement in NRS 701.010 that “the State has a responsibility to encourage the utilization of a wide range of measures which reduce wasteful uses of energy sources.”
Although State legal authority appears to exist for implementing such a policy, federal preemption under the Energy Policy and Conservation Act (EPCA) would likely present difficulties.
The EPCA expressly preempts states and municipalities from creating their own minimum energy- and water-efficiency standards for certain appliances and equipment. If a certain product is subject to a federal standard under EPCA, states may not prescribe a different efficiency standard for that same product. A minimum federal energy-efficiency standard would preclude not only state energy standards, but also water standards, and vice versa (Peter J. Ross, Appliance & Equipment Efficiency Standards: A Roadmap For State & Local Action 1-2 (2017); 42 U.S.C. § 6297(b)).
The U.S. Department of Energy (DOE) has primary responsibility for federal energy-efficiency standards (42 U.S.C. §§ 6202(1), 6295).
EPCA provides several exceptions from its preemption clause. First, states may implement procurement standards that are more stringent than corresponding federal energy conservation standards (42 U.S.C. § 6297(e)). Under this provision, Nevada could revise its procurement laws to require purchasing products that exceed federal energy-efficiency standards. To do so, the legislature may need to amend NRS 333.4611 (purchasing devices that use electricity, natural gas, propane, or oil). We did not have time to thoroughly examine Nevada’s state purchasing laws.
Second, states may petition DOE for a waiver to develop their own energy-efficiency standards for certain products (42 U.S.C. § 6297(d)). In order to obtain a waiver, a state must show its regulations are needed “to meet unusual and compelling State or local energy or water interests,” which are “substantially different in nature or magnitude than those prevailing in the United States generally” (42 U.S.C. § 6297(d)(1)(B) & (C)). In addition, the state regulations must be preferable to alternative approaches to energy savings, including reliance on reasonably predictable market-induced improvements in efficiency. Nevada’s ability to secure a waiver under this provision is highly uncertain and may create litigation risk.
Third, states and municipalities may indirectly encourage the adoption of high-efficiency appliances through building codes for new construction (Ross, supra, at 21). EPCA does not preempt state or local building codes for new construction concerning the energy efficiency or energy use of a covered product as long as the codes meet certain statutory requirements (42 U.S.C. § 6297(f)(3)). Among other things, the codes may not “require that the covered product have an energy efficiency exceeding the applicable [federal] energy conservation standard” without a waiver (42 U.S.C. § 6297(f)(3)(B)). The codes also must grant credits on the basis of how much each building option reduces energy use or cost, without favoring particular products or methods (Ross, supra, at 21 (citing 42 U.S.C. § 6297(f)(3)(C))).
This exception may allow Nevada to create a timeline for residential and commercial properties to update appliances from less-efficient technologies to the most-current technologies that provide a higher level of efficiency. It would be safest to require use of products that meet, but do not exceed, the federal minimum standards. See Air Conditioning, Heating & Refrigeration Inst. v. City of Albuquerque, 2008 WL 5586316, at *2 (D.N.M. 2008). EPCA preempted ordinance that prescribed standards for individual components of building that exceeded the federal minimum standards (Ross, supra, at 22). For Nevada legal authority to adopt building codes, see the policy on Energy Codes for Net-Zero Buildings.
There is, however, the possibility that a court may find that EPCA preempts a state or local building code. See Air Conditioning, Heating & Refrigeration Inst, 2008 WL 5586316, at *2; Ross, supra, at 21-22; Josh Zaharoff, The Efficiency of Energy Efficiency: Improving Preemption of Local Energy Conservation Programs, 37 N.Y.U. Rev. L. & Soc. Change 783, 811-18 (2013) (noting conflicting court decisions, both upholding and striking down, state and municipal building codes under EPCA’s preemption provision).
Fourth, Nevada and California may adopt energy-efficiency standards for general service lamps in accordance with 42 U.S.C. § 6295(i)(6)(A)(vi). Nevada’s new energy-efficiency standards for general service lamps, required by AB 54 (2019) and NRS 701.260, appear to fall within this exception.
In addition, states may pass energy-efficiency laws for new consumer appliances and industrial equipment that are not covered by federal law (Ross, supra, at 22). For example, despite 42% of U.S. homes having at least one desktop computer and 64% having at least one laptop computer, no national standards exist for computer products. The California Energy Commission adopted standards for computers and computer monitors in December 2016 (20 Cal. Code Reg. § 1605.3(v)).
New legislation is probably necessary to adopt energy-efficiency standards for appliances not covered by federal law. Nevada’s practice has been to enact special purpose legislation to authorize energy-efficiency regulations, such as NRS 701.220 (energy conservation in buildings) and NRS 701.260 (energy-efficiency standards for general service lamps).
In sum, even in light of the above stated preemption difficulties, Nevada may be able to implement parts of this policy using exceptions in the EPCA (e.g., state procurement standards, building codes, and energy-efficiency standards for products not covered by EPCA). New and amended legislation and regulations would be needed.