The U.S. Justice Department told a federal judge on Sept. 15 that Denver’s Energize Denver program and Colorado Regulation 28 are plausibly preempted by federal law. That is not a final court ruling. It is a serious federal legal position in an existing lawsuit, and the difference matters.
The dispute is over energy-use targets for large existing buildings. Property-owner groups argue the rules effectively force replacement of federally regulated gas equipment. Denver and Colorado say owners have other paths to comply, including insulation, operational changes and different equipment choices. The Denver Gazette’s report lays out both sides, and Judge Regina Rodriguez still has decisions to make.
Here is the distinction: this is not “Denver’s rules are dead,” and it is not “nothing to see here.” It is a real test of whether a city may accomplish through a building-wide energy cap what Congress may have forbidden it from doing directly through appliance rules.
The Bullet Point Brief
- The federal law is old, not imaginary. The Energy Policy and Conservation Act dates to 1975 and establishes national efficiency standards for covered appliances. The Justice Department’s argument is that a building energy cap can still regulate the use of those appliances, even if the ordinance never names a furnace or water heater.
- Denver says the case changed. The city argues the owners amended away claims that Energize Denver requires equipment exceeding federal standards. Its position is that needing to switch one federally covered product for another does not automatically trigger preemption. That is a legal distinction with enough commas to employ several lawyers, which is generally how taxpayers know the meter is running.
- Existing buildings are the immediate fight. The case involving the Colorado Apartment Association and hotel and commercial-property groups concerns large existing buildings. Those owners say compliance can require removal of working gas equipment. Denver and the state say the targets can be met through several options, not a mandatory appliance ban.
- The new-building case is on appeal. A separate challenge to Denver’s new-building rules was dismissed in August and appealed to the 10th Circuit on Sept. 11. The two cases overlap in principle, but they are not interchangeable. Court fights have a way of punishing people who treat a headline like a final judgment.
- The practical stakes are substantial. Building owners need clarity before spending serious money on retrofits, planning capital budgets or passing costs along through leases and rents. Denver’s own code page confirms that Energize Denver includes existing-building performance requirements. Rules can have good intentions and still become a very expensive scavenger hunt for compliance.
My Bottom Line
I am all for efficient buildings, lower waste and responsible stewardship. Colorado does not need permission to use common sense. But common sense also means government cannot write a mandate broad enough to squeeze a lawful energy source out the back door, then act surprised when somebody checks the federal rulebook.
Denver deserves authority over local building policy. Congress deserves respect when it has set a national standard. And property owners deserve a clear answer before they are told to spend five or six figures chasing a target that may not survive judicial review.
If Denver can defend these rules within federal law, make the case plainly. If it cannot, fix them. Climate policy that depends on legal fog and forced guesswork is not leadership. It is a bureaucratic escape room, except the owners pay for the locks.