Rivera v. Sami

The Ninth Circuit Court of Appeals affirmed the dismissal on sovereign immunity grounds of a lawsuit challenging the Washington State Energy Code, which the plaintiffs argued was preempted by federal law. The Ninth Circuit found that the plaintiffs challenging the Energy Code failed to establish that the individual defendants—the Washington Attorney General and the members of the State Building Code Council—had “some connection with the enforcement” of the Energy Code that would overcome Washington’s assertion of sovereign immunity.

The federal district court for the Western District of Washington ruled that the Eleventh Amendment barred a preemption challenge to amendments to the Washington State Energy Code that established minimum performance standards and requirements for construction and construction materials. The court concluded that the Ex parte Young exception to sovereign immunity did not apply to the defendants, who were members of the Washington State Building Code Council and the Attorney General of Washington. The court found that the Council Members who promulgated the amendments did not have either the power to enforce the Energy Code or supervisory power over the local officials responsible for enforcing the Energy Code. The court also found that the Attorney General’s “generalized authority” to file suit if cities and counties failed to follow the Energy Code was not sufficient to waive sovereign immunity. The court dismissed the case without prejudice but without leave to amend because “a suit dismissed on sovereign immunity grounds cannot be salvaged.”

A coalition of plaintiffs that included homeowners, builders, suppliers, unions, and utilities filed a lawsuit challenging the 2023 adoption of the Washington State Energy Code (Energy Code). They asserted that the Energy Code violates and is preempted by the federal Energy Policy and Conservation Act (EPCA) because the Energy Code “imposes regulations concerning the energy use and energy efficiency of EPCA-covered appliances that far exceed federal requirements and does not qualify for an exemption from preemption.”