Can the North Carolina Building Code Council adopt a rule that forces existing buildings to install energy efficient water heaters or boilers when they replace old units, even if the building was built in full compliance with the code when it went up?

Plain-English summary

At the March 13, 1984 meeting of the Building Code Council, Robert P. Gruber of the Public Staff of the Utilities Commission asked the Council to amend the State Building Code to require that all replacement water heaters and boilers be energy efficient models. The Council requested an AG opinion on whether it had the statutory authority to impose that requirement on buildings originally constructed in compliance with the Code.

The AG answered no, with one exception: the Council could reach a building that was being altered, reconstructed, or whose use was being changed. Existing buildings already in code compliance could not be retroactively forced to install energy efficient appliances.

The opinion turned on the Court of Appeals decision in Carolinas Virginias Ass'n of Building Owners & Managers v. Ingram, 39 N.C. App. 688 (1979). In that case the Court of Appeals construed the Building Code Council's grant of power under G.S. 143-138 and held that "the Building Code which it authorized the Council to adopt should regulate only new construction or buildings being reconstructed or altered in purpose." The Court of Appeals found nothing in the statute showing a legislative intent that the Council could exercise the "drastic" power to impose new requirements on existing buildings.

The AG opinion also pointed to G.S. 143-139.2, the insulation-standards statute, which expressly applied only to single-family or multi-unit residential buildings "on which construction is begun in North Carolina on or after January 1, 1978." Applying the maxim expressio unius est exclusio alterius (citing Howell v. Indemnity Company, 237 N.C. 227 (1953)), the AG read the explicit forward-looking date as an implicit exclusion of pre-1978 construction. If the legislature wanted to reach earlier buildings, it would have said so.

The conclusion: the Building Code Council was not authorized to require energy efficient water heaters or boilers in buildings that met the Code requirements when originally constructed, unless those buildings were being altered, reconstructed, or had a use change.

Currency note

This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Building Code Council's authority has been revisited by the General Assembly multiple times since 1984, and energy efficiency mandates at both the state and federal level have grown substantially. The basic principle the 1984 opinion identified, that a building code council's authority generally reaches new construction and substantial renovation rather than maintenance-level replacement in existing buildings, remains a useful framework, but the specific statutory text and the boundary lines are different today.

Historical context: what the AG concluded

The 1984 opinion does several pieces of interpretive work:

The Building Code Council's authority is bounded by statute. The Council has only the powers G.S. 143-138 gave it. It cannot expand its own authority by adopting more aggressive regulations than the statute supports.

The Court of Appeals had already drawn the line. In Carolinas Virginias Ass'n of Building Owners & Managers v. Ingram, the Court of Appeals had construed G.S. 143-138 as reaching "only new construction or buildings being reconstructed or altered in purpose." The AG treated that holding as controlling.

Expressio unius est exclusio alterius. When G.S. 143-139.2 spoke of buildings "on which construction is begun . . . on or after January 1, 1978," the AG read the explicit limit as an implicit exclusion of earlier buildings. The Howell case from 1953 supplied the canon of construction. The legislature could have said "all buildings" or "all replacement appliances regardless of original construction date" if it wanted to, and did not.

A use change or alteration triggers code applicability. The opinion does not say existing buildings are forever immune from new code requirements. If the building changes purpose or undergoes alteration that brings it within the scope of the Code, current rules apply. Section 101.6 of Chapter 1 of Volume 1 of the State Building Code (cited by the AG) sets out the alteration-triggers framework.

Background and statutory framework

The State Building Code is the principal regulatory document governing construction in North Carolina. The Building Code Council, established under G.S. 143-138, has rulemaking authority to draft and amend the Code. The Council operates within the Department of Insurance and includes representatives from architects, engineers, contractors, builders, code officials, and others with relevant expertise.

G.S. 143-138 lays out the Council's authority. G.S. 143-139.2 sets specific insulation requirements for residential buildings on which construction began on or after January 1, 1978. The latter section also prohibits utility connections for noncompliant new buildings, an enforcement hook tied to certificate of occupancy.

By the early 1980s, energy efficiency was a growing policy concern. The Public Staff of the Utilities Commission, advocating for ratepayers, had a structural interest in any measure that reduced household energy demand (which lowered required generation capacity and therefore rates). The proposal to mandate energy efficient replacement water heaters and boilers in all buildings would have applied to roughly the entire existing housing stock at the time of replacement, and would have driven down state-wide energy use.

The opinion identifies the legal limit on that policy goal. The Council can pursue energy efficiency in new construction and in buildings undergoing reconstruction or use change. It cannot pursue it through a maintenance-level mandate on the existing stock without statutory authority the General Assembly has not given.

Common questions

What counts as "alteration" or "reconstruction" that triggers code applicability?

The opinion cites Section 101.6 of Chapter 1 of Volume 1 of the State Building Code but does not detail the threshold. Generally, building codes treat "alteration" as work that changes structural or functional elements of a building beyond routine maintenance, and "reconstruction" as substantial rebuilding. Replacing a water heater alone would typically be maintenance, not alteration. Whole-system replacement combined with other work might cross the threshold. The line is fact-specific.

Does this opinion apply only to water heaters and boilers?

The opinion was written in response to a water heater and boiler proposal, but the reasoning applies more broadly. Any Code amendment that purported to impose new requirements on existing buildings outside of alteration, reconstruction, or use change would face the same statutory limit.

Could the General Assembly authorize retroactive energy mandates?

Yes. The opinion does not say retroactive mandates are constitutionally prohibited. The legislature could enact a statute requiring energy efficient replacement appliances in existing buildings. The opinion is about the Building Code Council's regulatory authority under the statutes as they existed in 1984, not about legislative power.

What was the practical consequence of this opinion?

The Building Code Council did not adopt the proposed amendment. Energy efficiency in existing buildings continued to be addressed through voluntary programs, federal appliance efficiency standards, and utility rebate programs rather than through mandatory state code requirements at the time of replacement.

How does this interact with federal appliance efficiency standards?

Federal law sets minimum efficiency standards for many appliance categories including water heaters under the Energy Policy and Conservation Act. Those federal standards apply at the point of manufacture and sale, not at the point of installation in any particular building, so they reach the existing-building replacement market without raising the state-law authority question this opinion addressed. The legal landscape changed substantially after 1987 federal amendments.

Source

• Landing page: https://ncdoj.gov/opinions/retroactive-regulation-of-buildings-energy-efficient-appliances/

Citations

• N.C.G.S. § 143-138
• N.C.G.S. § 143-139.2
• Chapter 143 of the General Statutes
• Carolinas Virginias Ass'n of Building Owners & Managers v. Ingram, 39 N.C. App. 688, 251 S.E.2d 910, cert. denied 297 N.C. 299, 254 S.E.2d 925 (1979)
• Howell v. Indemnity Company, 237 N.C. 227, 74 S.E.2d 160 (1953)

Original opinion text

Subject:

Requested By: Lee Hauser

Conclusion: No, unless the building is being altered, reconstructed or its use changed.

At the March 13, 1984 regularly scheduled meeting of the Building Code Council in Raleigh, Mr. Robert P. Gruber, Executive Director of the Public Staff of the North Carolina Utilities Commission requested the Council to amend various sections of the N.C. State Building Code to require that all replacement water heaters and boilers be energy efficient models. The Council requested an opinion from the Attorney General as to whether it had the statutory authority to adopt such a regulation with respect to buildings originally constructed in compliance with the Building Code.

G.S. 143-139.2 provides:

"§ 143-139.2. Enforcement of insulation requirements; certificate for occupancy; no electric service without compliance.

(a) In addition to other enforcement provisions set forth in this Chapter, no single family or multi-unit residential building on which construction is begun in North Carolina on or after January 1, 1978, shall be occupied until it has been certified as being in compliance with the minimum insulation standards for residential construction, as prescribed in the North Carolina State Building Code or as approved by the Building Code Council as provided in G.S. 143-138(e).

. . . [N]o utility, including but not limited to municipal, county, and private utilities engaged in electric service and electric membership corporations, shall connect for electric service to an occupant any residential building on which construction is begun on or after January 1, 1978, unless said building complies with the insulation requirements of the North Carolina State Building Code or of local building codes approved by the Building Codes Council as provided in G.S. 143-138(e), and has been certified for occupancy in compliance with the minimum insulation standards of the North Carolina State Building Code or of any local modification approved as provided in G.S. 143-138(e), by a person designated as an inspector pursuant to subsection (a) of this section."

The powers granted to the Building Code Council with respect to the establishments of a State Building Code are set forth in G.S. 143-138.

In Carolinas Virginias Ass'n of Building Owners & Managers v. Ingram, 39 N.C. App. 688, 251 S.E.2d 910, cert. denied 297 N.C. 299, 254 S.E.2d 925 (1979), the Court of Appeals construed this grant of power. The Court held "that the Building Code which it authorized the Council to adopt should regulate only new construction or buildings being reconstructed or altered in purpose." The Court could find nothing in the wording of the statute evidencing a legislative intent that the "drastic" power to impose new and more stringent requirements upon existing buildings should be implied. As to its application to building "on which construction is begun . . . on or after January 1, 1978." The maxim "expressio unius est exclusio alterius is applicable." See Howell v. Indemnity Company, 237 N.C. 227, 74 S.E.2d 160 (1953).

In our opinion, the Council is not authorized to require energy efficient appliances in buildings that meet Code requirements when originally constructed unless altered, reconstructed or its use changed (See Section 101.6, Ch. 1 of Vol. 1 of the N.C. State Building Code.)

RUFUS L. EDMISTEN
Attorney General

Isham B. Hudson, Jr.
Special Deputy Attorney General