Green Building Law Blog : Green Building Lawyer & Attorney : Shari Shapiro: Calliope Communications, LLC

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On July 17, 2009, the Senate Energy and Natural Resources Committee approved the American Clean Energy Leadership Act (ACELA),  Senate Bill 1462 . This is a "bipartisan" markup of the House American Clean Energy and Security Act of 2009, also know as the Waxman-Markey Bill. [A summary of the green building provisions of Waxman-Markey from Green Building Law Blog and Green Building Law Update is available here and the Pew Charitable Trusts' resources on all things Waxman-Markey is here. For a primer on getting bills passed in Congress, School House Rock does an excellent job here.]

Among the most significant provisions for green building interests is the National Energy Efficiency Building Codes, Section 241 (it starts at page 228 of the bill).

•  30% improvement in energy efficiency by 2010 and 50% by 2016 for the National Model Energy Efficiency Codes;
• Within 2 years after the passage of ACELA, States must certify whether they have reviewed and updated the building code of the State regarding energy efficiency;
• To certify, States must show that the code provisions of the State at least meet or exceed 2009 IECC for residential buildings and Ashrae 90.1-2007 for commercial buildings (or acheive equivalent or greater energy savings.). 
• Within two years after the Secretary of Energy establishes a modified national energy efficiency code, State must certify that that the code provisions of the State meet the revised code. 
• Within 3 years of certification with the national energy efficiency code, States must certify that they have acheived compliance with the State building energy code or model code or "made significant progress" toward achieving the goal.
• A State is considered to have made "significant progress" if it has developed and is imlementing a plan for achieving compliance within 8 years.
• The Secretary may reduce the energy targets for renovated buildings to "the highest achievable level." 

 To acheive these goals, ACELA appropriates $100,000,000 for fiscal years 2009-2013 for training, enforcement and implementation.

A brief comparison with Section 201 of the Waxman-Markey bill (from the Pew's excellent summary) shows that ACELA's version is a lot softer on the states.

 After enactment, buildings built to a code meeting the national building code energy efficiency target will have a 30 percent reduction in energy use relative to the baseline code. By 2014 (residential) and 2015 (commercial), buildings built to a code meeting the national target will have a 50 percent reduction; an additional 5 percent reduction will be required every three years thereafter, until 2029 and 2030 for residential and commercial buildings, respectively. The baseline codes are the 2006 IECC (residential) and ASHRAE Standard 90.1-2004 (commercial) codes. National targets may be modified to reflect the Secretary of Energy’s determination of the maximum reduction of energy use that is cost-effective on a life-cycle basis or if successor building codes provide greater reductions.

Within one year of the establishment of a national building code, each state is required to certify that it has either adopted the national code or updated its own building codes to meet or exceed the national target, or certify that local governments representing at least 80 percent of the State’s urban population have either adopted the national code or modified their own codes to meet the target. In states and local governments that do not provide certification, the national building code will apply.

States and/or local governments will be required to demonstrate compliance within two years of adoption of a new code; compliance is achieved if at least 90 percent of new and substantially renovated building space in the preceding year meets the code. For the first seven years after enactment, states may instead demonstrate that they have been making “significant progress” toward compliance by developing a plan for enforcement, taking steps to implement that plan, maintaining funding for enforcement, and demonstrating at least 50 percent of new and renovated buildings meet the code.

In short, ACELA's requirements are lower, and the states have longer to comply.  However, the ACELA does not do what I would have liked to have seen--a true cooperative Federalism model in which the Federal government sets the energy efficiency targets, and allows the states to create codes to meet them, much like the State Implementation Plans in the Clean Air Act.