Who Sets the Standards? Dillon’s Law and Municipal Green Building

By Blake Holt, staff editor "Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so may it destroy. If it may destroy, it may abridge and control.”      —John Forrest Dillon, 1868

Dillon’s Law is one of the cornerstones of municipal government in America. As stated in the quote above from Justice John Forrest Dillon, Dillon’s Law limits the scope of municipal legislation to matters in which it has been granted authority by the state legislature.

Compliance with Dillon’s Law has jeopardized Durham County’s commitment to reduce greenhouse gas emissions by 30% in the private sector by 2030. The North Carolina State Constitution prohibits municipalities from establishing laws in areas that have been addressed by existing state law. As North Carolina already has statutes establishing building codes for the private sector, Durham is unable to mandate private green-building standards that exceed state codes and can only set standards for public buildings.

This deference to state legislation effectively ignores the different challenges that urban and rural municipalities in North Carolina must address. Urban counties have large existing building stocks that have energy inefficiencies built into them. Durham County, for instance, has about 110,000 private buildings, meaning that Durham’s public building standards can only make a small dent in overall building efficiency. Rural counties, with their smaller amount of inefficient buildings, do not face the same challenges.

Of the 100 counties in North Carolina, 13 are categorized as urban and 87 are rural. Current standards thus effectively impose rural standards on urban areas. Allowing municipalities to set their own private building standards would empower each county to address greenhouse emissions in the way that is best suited to the challenges they face.

Critics of county-specific building standards may argue that state standards provide needed consistency across the state. What, one could ask, would prevent some counties from enacting lax building codes in order to attract construction contracting business? It seems that this “race to the bottom” could be easily avoided by requiring all counties to meet minimum standards established by the state. Prohibiting counties from exceeding those standards, however, only serves to limit the ability of municipal officials to craft solutions that are appropriate for their community.

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