The New ERI Path

Section R406 of the 2015 IECC is a dramatic shift from public ownership to privatizing building energy code enforcement. Should we care?


For some code officials, it was a relief. The idea that building energy code compliance could be determined largely by looking at a single 0-100 Energy Rating Index (ERI) score, instead of assessing the litany of prescriptive measures one by one, may have seemed a godsend. This seeming relief came after years of rapid advances in energy codes, tightened government budgets, and a growth in the number of code officials (up 3.5% from 2014-2015) that has not kept pace with the growth in construction (residential permits increased 13% from 2014-2015, according to U.S. Census data).

Other code officials were skeptical because the preeminent ERI score–HERS–considers measures that aren’t allowed in the IECC. They responded by adopting ERI scores that took those measures into account.

Sentiments aside, does ERI present any downside for code officials?

ERI and the HERS Index

To answer the question, we first need to understand what ERI can be versus what it actually is today.

Section R406 of the 2015 IECC spells out the requirements of the ERI path. In theory, multiple software products could be used to determine ERI compliance. However, a basic reading of R406 shows the requirements are essentially tailored to the current HERS system. As a result, while HERS is technically one of many potential ERIs, in reality they are practically one in the same.

Why does that matter? Well, first of all, intent: The HERS score began as a green marketing designation for builders who wanted to distinguish their homes from those of competitors, or existing homes. HERS was not designed for code compliance; it was designed for “green” marketing. RESNET, a private sector entity, controls the HERS score and either approves, or disapproves, the software tools that can provide them.

There are currently only five approved software programs for providing a HERS score. But while code has long referenced private sector standards, developed through consensus (typically ANSI and ISO) based processes, this is not what we are talking
about with the HERS/ERI relationship. In this case, code is not referencing private sector standards; code is being supplanted by a private sector code substitute. Understood this way, Section R406 is not continuation of the status quo—the public-private code—it is a dramatic shift from public ownership to private.

Privatization On the Rise

In an article last December, wrote about the future of building code enforcement and the growing trend of public-private partnership. Unsurprisingly, it
asserts the “Silver Tsunami,” or the aging code official workforce, is spurring many local governments to consider outsourced options for future code enforcement.
The article includes an interview with a representative of SAFEbuilt, a company whose business model is performing building and zoning services for governments on a contract basis. The company currently boasts over 250 communities nationwide as customers.

The article pins the growing popularity of outsourcing on costs, cost recovery, and ability to deliver services in a sufficiently timely manner. These are important goals, to be sure, but they are not the only ones.

Some academic work exists on this subject, including a 2010 report that examines examples of privatization of building code enforcement in Canada and Australia. The authors summarized the impacts observed as follows:

Overall, PSI [private sector involvement] delivers an
increase in effectiveness and efficiency but at a particular
cost of public accountability. A competitive, rather than a
complementary, relationship between the private and public
sectors in a privatized regime is also found to be more likely
to generate problems related to the equity of the service
being provided.

In short, the private sector may be more efficient, but it may not be as adept at actually serving the public good. Of course, this is the very reason why code enforcement
has always been the purview of the public sector and not the private in the first place. This research is not the final word, but it does serve as a reminder that an assessment
of the relative merits of a public or private approach to code enforcement cannot consider efficiency alone, it must also consider the public benefit derived from either

Facing the Truth

Because ERI today means a HERS score, HERS raters will be the parties relied upon to assess code compliance. In other words, in areas where ERI becomes the norm, private sector HERS raters will perform the function long reserved for code officials.

As local government leaders look more closely at privatization in the future, they will surely consider the extent to which it is already happening. Where it is, they will likely
be emboldened by it, saying, “Well, we are already moving in this direction anyway, so it is probably a good idea.”

In this way, privatization of building energy codes will serve as part of local officials’ rationale for further privatization of an array of building code activities beyond energy. The point here is not that ERI is wholly good or wholly bad, but rather that it should be recognized for what it is: a sea change in energy code compliance, one which will have implications for building code enforcement writ large.

Bill Fay leads the broad-based based Energy Efficient Codes Coalition (EECC).