Municipal Authority to Regulate, and Preemptions
Authorization from the Municipalities Planning Code
Because Pennsylvania follows Dillon's Rule, local governments only have the powers that the state has explicitly authorized them. The PA Municipalities Planning Code (MPC) authorizes municipalities to "promote the conservation of energy through the use of planning practices and to promote the effective utilization of renewable energy sources" (section 105). Additionally, Section 503(6) enables municipalities to include "provisions for encouraging the use of renewable energy systems and energy-conserving building design" within the SALDO. These two sections expressly enable municipalities to encourage renewable energy and energy conservation in buildings, but justification for regulating energy-related features can be found in other sections of the MPC, as well.
Related to a municipality's power to regulate through its zoning ordinance, Section 603(b)(2) says that "zoning ordinances… may permit, prohibit, regulate, restrict and determine… size, height, bulk, location, erection, construction, repair, maintenance, alteration, razing, removal, and use of structures."" This gives municipalities broad latitude to regulate how buildings are constructed and altered.
While municipal zoning and subdivision ordinances cannot require changes to existing structures unless they are being renovated and the improvements are subject to building codes and/or the land development process, ordinances can be an effective tool to optimize new construction and major renovations for maximizing energy efficiency and minimizing greenhouse gas emissions from their operation.
Energy Efficiency and Conservation in the Building Codes
Pennsylvania has adopted a statewide building code (the 2018 version of the Uniform Construction Code (UCC)/International Building Code, and the 2018 Energy Conservation Code (IECC)), with some state-specific amendments. The Commonwealth is expected to adopt the 2021 International Building Code with state specific amendments in 2025. Municipalities are required to adopt and enforce the state's adopted building code or to have it enforced by the state on their behalf. Section 301.d of the PA Construction Code Act states that the building code adopted by the municipality supersedes and preempts all other codes, deed restrictions, and ordinances that regulate any aspect of the construction, alteration and repair of buildings. This strong statement makes it challenging for a municipality to require things like above-code energy efficiency, electrification, or renewable energy systems through other ordinances.
This guide provides potential strategies municipalities can use to affect greater levels of energy conservation and efficiency, as well as building electrification and renewable energy, through the zoning and subdivision ordinances without triggering preemption from the state building code.