Politics is such a slippery business it would be foolhardy to count on the American Clean Energy and Security Act – more commonly known as the Waxman-Markey bill, or H.R. 2454 – finding its way into law in anything other than diminished form.

By the time it was approved by the House in June, a key mandate of the legislation was weakened to require a 17% reduction in greenhouse gas emissions by 2020 (the original target was 20%) and 83% by 2050 from 2005 levels through a cap-and-trade system.

More pertinent to the homebuilding industry, though, is Section 201 of the 1,200-page bill, which establishes a policy and schedule for the development and nationwide implementation of improved building energy codes. The provision gives code bodies, states, and localities a timetable for proposing and adopting residential and commercial codes on their own that meet or exceed the minimum requirements identified in the bill. The bill also gives the Department of Energy the power to enforce federal code in states that fail to comply. The states would have a year to develop their own codes and two years to demonstrate compliance.

National code targets

As the energy-efficiency advocacy group Alliance to Save Energy points out, Waxman-Markey, as passed by the House, would require the DOE to establish codes that achieve 30% savings within one year of enactment, 50% savings by the end of 2014 for homes and 2015 for commercial buildings, and an additional 5% savings every three years until 2030. DOE would also be required to give technical and financial assistance to the International Code Council and the American Society of Heating, Refrigerating and Air-Conditioning Engineers to develop the codes, but would step in if the independent organizations did not meet the targets.

Committees in the Senate are now working on versions of climate-change legislation that likely will hew even more to the interests of the utilities and industry groups – which include the National Association of Home Builders – that oppose H.R. 2454 and its substitute amendment, H.R. 2998. Given Capitol Hill’s current focus on health care reform, however, it’s unlikely any of the Senate measures, much less a bill hammered out by the Senate and House, will be brought to a vote anytime soon.

As a recent analysis by corporate consultancy Gerson Lehrman Group points out, further action on climate-change legislation could easily get pushed into 2010, although those who oppose the Waxman-Markey bill should by no means consider the battle won.

Sources of confusion

One byproduct of the debate about H.R. 2454 has been misinformation about its provisions for energy efficiency in homes. The Daily Green, a consumer-oriented site for green products and policies, asked FactCheck.org, a nonpartisan nonprofit project of the Annenberg Public Policy Center, to address claims that the bill would require energy audits of all new and existing residential and commercial structures that go up for sale.

For example, the House Minority Leader, John Boehner of Ohio, says On his website that should the bill become law, “your home will be subjected to a new energy rating assessment and energy labeling program that will penalize you for older windows, original fixtures, and dated appliances.”

FactCheck points out that there is no such provision in the bill. The group does note, however, that, in its original form, the bill would have authorized the DOE to create a building energy labeling program to “enable and encourage knowledge about building energy performance by owners and occupants and to inform efforts to reduce energy consumption nationwide.” The National Association of Realtors objected to the program, saying it would unfairly devalue older homes. NAR collaborated on a reworking of that provision, which now says a state “shall seek to ensure that labeled information be made accessible to the public in a manner so that owners, lenders, tenants, occupants, or other relevant parties can utilize it.”

In his June 29 broadcast, radio host Rush Limbaugh went a bit beyond Boehner’s claims about audit requirements to say that “when you sell your house, environmental experts have to come in and do a survey to find out if you’ve got leaky windows, if all the environmental systems are correct, if you have relatively new appliances, and until you modernize in the way they say, you can’t sell – that’s in the bill.”

FactCheck notes that the bill contains no point-of-sale upgrade requirement. The legislation does, however, provide funding for states “to offer financial incentives, such as loans or grants, for property owners to voluntarily decide to improve energy efficiency.” Since taxpayer money would support such a program, the state would have to verify that all upgrades were made according to program guidelines.

It remains to be seen whether the building code provisions will attract quite the same level of politically charged attention. Seems unlikely. But the provisions are nonetheless under scrutiny, and it could be a while before we know their fate.