October 2018

Big Houses With Big Energy Demands

Bethany Anderson, MJLST Staffer 

A recent Aspen Times article says Pitkin County, home of the popular Aspen ski resort and numerous mountain mansions, will target larger homes as it heightens energy efficiency requirements and raises energy prices. The proposed change would increase a per-square-foot energy consumption fee from $1 to $45 for homes over 5,750 square feet and to $60 for homes over 8,250 square feet. While some argue changing these requirements is the best way to reduce energy demand on strained resources, others say the consumption fees don’t address key aspects of large home construction: the resources used in construction, the waste of resources in demolition, and the energy demand from pools, hot tubs, and snow-melting driveways

The U.S. isn’t alone in balancing growing (in various senses) housing demands and energy consumption constraints. Similar home size concerns arise in Australia, where housing units have increased in size while the number of residents per unit has decreased. That means energy usage per unit increases.

On the other hand, in an era of innovation and new technologies, smaller doesn’t necessarily mean more efficient. One Virginia man doubled the size of the house on his lot but cut energy bills. He says it’s not about being “eco-friendly” or about building a smaller home; rather, it’s about taking the time and effort – and shouldering the cost – needed to construct a sound, well-insulated home.

All of this poses legal and technological challenges. Technologically, how can (some) people get what they want – a big, “American-dream” house – without overconsuming energy? More investigation into construction techniques and materials – as professed by that Virginia man – could prove fruitful. Legally, can residences be regulated in the manner Pitkin County wants to regulate? Homes have not historically been regulated as products under the EPCA, a 1975 statute concerned primarily with energy supply, demand, and efficiency. Perhaps more comprehensive regulation, or including homes under the EPCA, would solve the energy demand and efficiency problems Pitkin County faces in a more equitable way than slapping on fees for large homes. New Jersey offers a rebate for homes that meet energy efficiency standards – maybe rewards are better than penalties. Australia proposes adding embodied energy, or the energy used in each step of production of a certain thing, to the cost calculus. And, though Pitkin County is considering increased fees, it has thus far not supported square footage limits for snow-melt driveways, pools, hot tubs, or patios. These might be good starting points for striking a balance between big demand for big things against limited energy resources.

 


Printing Pistols: Litigation Continues Over the Legality of 3-D Printable Firearms

Holm Belsheim, MJLST Staffer 

3-D printing is the process of creating three dimensional objects by layering very thin layers of plastic into the desired shape. All you need is the printer, raw material, and a good blueprint. From gadgets and toys for home use to replacement organs, there are many things one can make. Some of the possibilities, however, pose significant legal concerns. At the heart of years of litigation is a group behind the designs for a working, 3-D printable firearm.

In 2013 Cody Wilson founded Defense Distributed to distribute and monetize 3-D printable gun designs. Defense Distributed’s first design, the Liberator, could fire a single shot. Plans for the Liberator were downloaded an estimated 100,000 times from the Defense Distributed website alone, and have since been hosted on several other sites. As of 9/25/2018, a search of the Defense Distributed file site DEFCAD turned up nine different designs for printable guns and gun parts. The group ultimately hopes to create a larger community of 3-D gun designers and printers.

Ignoring the national debate over firearms, 3-D printed guns pose a unique security risk. Making a gun is not illegal. Liberators are concerning because, like most 3-D printed objects, they are made of plastic. They aren’t detectable by metal detectors, and furthermore lack serial numbers or other identifying information. Per the Undetectable Firearms Act, undetectable guns have been illegal since 1988. While the Liberator design incorporates two metal pieces, one solely to set off metal detectors, the design doesn’t require them to function. Anyone with a 3-D printer can choose whether to include these pieces. Thus, these ‘ghost guns’ pose a substantial security risk.

The Liberator debuted on May 6th, 2013. Two days later, Defense Distributed took down the designs after the U.S. State Department deemed them a violation of export laws under the Arms Export Control Act. In 2015, citing 1st, 2nd and 5th Amendment arguments, Defense Distributed sued the United States in District Court (Defense Distributed v. U.S. Dept.t of State, 121 F.Supp.3d 680, (W.D.T.X. 2015)) and then, upon appeal, in the Fifth Circuit (838 F.3d 451, (5th Cir.  2016)) before being denied certiorari by the U.S. Supreme Court. Surprising some, the U.S. Government settled with Defense Distributed in 2018, giving the group license to upload the plans again as well as paying some of their legal fees. Only a few days after the plans were reuploaded however, Oregon and several states sued Defense Distributed, the U.S. State Department and others.(State of Washingtonv. U.S. Dept.of State2:18-cv-01115-RSL (W.D.W.A. 2018)). Subsequently U.S. District Judge Robert Lasnik issued a restraining order against Defense Distributed’s hosting of the plans.

So far, the injunction doesn’t seem to have done much. Near the end of the order is this phrase: “Regulation under the AECA means that the files cannot be uploaded to the internet, but they can be emailed, mailed, securely transmitted, or otherwise published within the United States.” Interpreting this literally, Defense Distributed removed the option to directly access digital plans but has continued sales through other means, namely mailing copies on USB sticks. At least 400 orders have been placed. Whether this workaround remains legal will likely be brought up in the future. For now it’s anyone’s guess whether Defense Distributed read it correctly or played a little too loose with the spirit of the injunction. My prediction is that Defense Distributed won’t be penalized: the options laid out in the injunction are too specific to be accidental.

The litigation is expected to continue. As of 9/25/2018, Defense Distributed has raised $342,000 for its legal expenses while receiving assistance from the Second Amendment Foundation and others. Meanwhile, a total of 21 Attorneys General are on the opposing side. They cheered the injunction but aim for more, potentially a complete ban on 3-D printable guns. The arrest of former Defense Distributed director Cody Wilson on unrelated charges has had no effect upon the case so far.