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

     Contributions to this post were made by Eli Wolfe, 2011 Cozen O'Connor Summer Associate.

     On May 12, 2011 the Energy Savings & Industrial Competitiveness Act (ESICA) of 2011 was introduced by Sens. Jeanne Shaheen (D. N.H.) and Rob Portman (R. OH). The Act creates a national strategy to increase use of energy efficiency technologies through a national model energy code, enhanced appliance standards, DOE loan guarantees for energy efficiency projects and a variety of other initiatives.  A summary of the bill is available here, and the bill itself is downloadable here.

    As I predicted here, ESICA resurrects the concept of a national model energy code which was first intorduced as part of Waxman-Markey (cap-and-trade).  Pursuant to ESICA, the DOE would essentially establish and regularly update national model building energy codes for residential and commercial buildings from baselines of the 2009 International Energy Conservation Code (IECC) and ASHRAE Standard 90.1-2010. The DOE would establish goals of zero-net-energy for new residential and commercial buildings by 2030. Energy savings targets would be set at the maximum level of energy efficiency that is technologically feasible and life-cycle cost effective, taking into account economic considerations.

   Within one year of any revisions to the IECC or ASHRAE Standard 90.1, the DOE would be directed to determine whether the revisions improve energy efficiency and meet the targets. If so, then the revisions would be established as the national model building energy code. If not, the DOE would recommend changes to improve the codes to meet the target, and IECC or ASHRAE would have 180 days to incorporate changes to meet the targets. If the revision still did not meet the target, then the DOE would establish a modified national model building code that does, based on the latest edition of the IECC or ASHRAE Standard 90.1.

     Within 2 years of the establishment of a national model building energy code, states would be required to certify whether they have updated their codes. Within 3 years of certification, the state would certify whether or not they either:

1. Achieved compliance: at least 90% of building space covered by the code substantially meets code requirements, or excess energy use for non-compliant buildings is not greater than 5% of energy use of all covered buildings; or
2. Made significant progress: the state has developed and is implementing a plan for achieving compliance within 8-years of enactment, and is meeting compliance targets under the plan.

   If a state does not meet the requirements, it must submit a report to the DOE explaining the status of the state’s efforts to reach compliance and a plan to do so. In states out of conformance, localities would be allowed to meet the certification requirements themselves. Conformance to this section may be required by the DOE as a prerequisite for grants or other support for code adoption/compliance activities. The DOE would provide technical assistance and incentive funding to states on building energy codes, and additional funding would be provided by the DOE to states or local governments in conformance to improve compliance. Up to $750,000 per state could be used to train state and local building code officials.
 

   The ESICA concept builds on the American Reinvestment and Recovery Act model which tied funding to updating building codes, and the 2005 energy bill requirements that DOE evaluate model energy codes, and that states demonstrate that the provisions of its commercial building code regarding energy efficiency meet or exceed the DOE approved standard.

   The question I am pondering is whether a national model code tied to net-zero construction has a hope of seeing the light of day, or are the barriers too great?

• Email This
• Print
• Trackbacks
• Share Link

EENews (subscription required) reported today that the organization "CO2 Is Green," a front organization for energy companies, published a particularly rabble rousing ad in today's Washington Post.

Because describing it is so much less satisfying, I reprint the ad in full here (you can see an image of the ad here):

The Kerry-Lieberman Cap and Trade Bill will drive the USA away from cheap efficient energy and permanently increase your cost of electricity, transportation fuel, and food.
• The bill is based on the false premise that man-made CO2 is a major cause of climate change. Real, empirical evidence indicates it is not. But even if CO2 was a major factor, using the Intergovernmental Panel on Climate Change's own formula and numbers, the bill would only reduce Earth's temperature by one tenth of one degree within the next 90 years!
• Wall Street, the Administration, green industries, environmental extremists, academia, and the media will love Kerry-Lieberman; you will not because you will pay for the costs.
• Passing Kerry-Lieberman will not stop the oil spill. Cost of the spill will be
paid for by BP. Don't let the President get the bill passed by riding the unrelated oil spill tragedy which will cost you money.
• The Obama Administration is touting energy independence by passing Cap and Trade. You cannot run your cars, planes, businesses, and homes on Wall Street's profits. Wind and Solar pr ovide less than one percent of our energy and that will not increase by a meaningful amount for decades. Fossil fuels provide 83% of our energy. Our economy will never recover if Obama's attack on this industry succeeds.
Cap and Trade proponents are buying support from industries on Wall Street with various corporate giveaways as he did with the very expensive Health Care Bill. Do not let this happen again with the Kerry-Lieberman Cap and Trade Bill.

If you are interested in who CO2 green is according to EENews,

Spokesman H. Leighton Steward sits on the board of directors of EOG Resources Inc., an oil and natural gas development company. He also is an honorary director at the industry trade group American Petroleum Institute, according to a biography on EOG's website...CO2 is Green is bankrolled by Corbin J. Robinson, chief executive of and leading shareholder in Natural Resource Partners, a Houston-based owner of coal resources.

According to Mother Jones

Natural Resource Partners is also a member of the American Coalition for Clean Coal Electricity (ACCCE), the scandal-plagued coal front group currently under investigation for its role in the forged letters sent to members of Congress criticizing the House climate bill.
 

What I am particularly amused by is the imaginary cabal of Wall Street bankers and the Obama administration against the unlikely pairing of energy companies and the common man.  Last I checked (which was today), EOG Resources is listed on the New York Stock Exchange.  In their 2009 annual report, this scrappy upstart champion of the little guy stated:

For the three, five and 10-year periods ended December 31, 2009, EOG’s stock appreciation was 56 percent, 173 percent and 1,008 percent, respectively, significantly exceeding the performance of the S&P 500 Oil and Gas Exploration and Production Index for these three periods.

EOG’s persistence in managing costs and maximizing reserve recoveries has resulted in superior returns, year after year. Our average ROCE(2) for the 10-year period ended December 31, 2009 was 18 percent. EOG’s outperformance on stockholder returns and ROCE validates its long-term organic growth strategy.

 

That's right--for the past 10 years, stock of EOG has increased 1,008 percent.  So Wall Street's profits are...EOG profits.   

Moreover, let's take a brief look at the proposition that "Our economy will never recover if Obama's attack on this industry succeeds." Does this mean that the economy cannot afford even a slight reduction in EOG's 1,008 percent stock price increase? Let's play my favorite statistical game. If we reduce our dependence on fossil fuels by half, which in turn reduces EOG's profits by half, their stock will only have gained in value 504% over the last five years. 

This doomsday conclusion also assumes that there will be a massive negative economic impact of weaning off fossil fuels, which evidence indicates is not the case. 

According to the Congressional Budget Office, the cost of Cap & Trade to each American household on a net economywide basis would be...wait for it...

On that basis, the Congressional Budget Office (CBO) estimates that the net
annual economywide cost of the cap-and-trade program in 2020 would be
$22 billion—or about $175 per household.

But we will never recover from this increase.  To put it in perspective, $175 is less than the cost of an Amazon Kindle or about the cost of a subscription to cable, cell phone and internet access (cable is $71 and internet access about $45 and cell phone about $73) FOR A MONTH. 

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

Last week, the USGBC announced its list of the Top 10 Pieces of Green Building Legislation in the 111th Congress.  Top of the list were the American Recovery and Reinvestment Act, better known as the Stimulus Bill, and the American Clean Energy and Security Act, better known as Waxman Markey.  I have posted about these pieces of legislation extensively--here for Waxman-Markey posts and here for ARRA posts.  So I was interested to see what the rest of the list had to offer in terms of overall perspective on Federal regulation of green buildings:

1. It's all about incentives.

Heaven forbid that Congress should force anyone to do anything.  With the exception of Waxman-Markey, the bills selected by the USGBC are all incentive based, providing funds for energy efficiency, water savings, etc. 

2. It's not very innovative.

There are only two bills on the list which I consider to be innovative or interesting.  The Federal Personnel Training Act of 2010 (yet to be introduced) which focuses on training federal personnel to operate and maintain high performance buildings, and S. 1619, the Livable Communities Act of 2009 which seeks to establish an Interagency Council on Sustainable Communities and provides $4 billion in grants to incentivize integrated community planning and implementation of sustainable projects. I like the first bill because it recognizes the need to raise the skills of implementing federal employees to realize the benefits of high performance buildings, and I like the second because it recognizes the linkage between planning and sustainability.   

3. Building Codes are not addressed.

Waxman-Markey, and its Senate counterpart The American Clean Energy And Leadership Act, both have some provision for creating a national energy efficient building code.  The other bills, however, do not attempt to address the key policy lever of building codes to enhance sustainable construction and save resources. This is probably because of the enormous political fight involved, both in wresting control of building codes away from states and local governments, and with the private interests involved in the building industry.   

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

On Friday, Senator Barbara Boxer released a 923-page climate change and energy bill.  A draft of the bill had been leaked to the media in late September, and I discussed it here. 

Although the overall bill has swelled from 600+ pages to 900+ pages, there is still just 1.5 pages on the National Energy Efficiency Building Code, first proposed as Section 201of the Waxman-Markey Bill.  In the Waxman-Markey Bill, the House called for: 

1. Establishing a “national energy efficiency building code” for residential and commercial buildings, sufficient to meet each of the national building code energy efficiency targets.

2. Setting energy efficiency targets for the national building code: “on the date of enactment of the American Clean Energy and Security Act of 2009, 30 percent reduction in energy use relative to a comparable building constructed in compliance with the baseline code…effective January 1, 2014, for residential buildings, and January 1, 2015, for commercial buildings, 50 percent reduction in energy use relative to the baseline code; and…January 1, 2017, for residential buildings, and January 1, 2018, for commercial buildings, and every 3 years thereafter, respectively, through January 1, 2029, and January 1, 2030, 5 percent additional reduction in energy use relative to the baseline code.”

3. If consensus based codes provides for greater reduction in energy use than is required under the ACESA, the overall percentage reduction in energy use provided by that successor code shall be the national building code energy efficiency target.

4. Requiring that states and local governments comply with or exceed the national energy efficiency building code, and providing for enforcement mechanisms for states which are out of compliance.

The original Boxer-Kerry draft backed off of the Waxman-Markey structure entirely, simply mandating that the Department of Energy or "other agency head or heads as may be designated by the President shall promulgate regulations establishing building code energy efficiency targets...beginnning not later than January 1, 2014... "

The exact same language is mirrored in the current version of the Senate Bill at Section 163 (starting at page 200 of the current bill).  No structure, no mandatory energy efficiency targets, no requirments that states adopt energy efficiency codes by a certain date.  

This is a fascinating development because of the vast energy savings possible through regulation of new buildings and retrofits of old buildings.  According to a study by McKinsey on energy efficiency,

by 2020, the United States could reduce annual energy consumption by 23 percent from a business-as-usual projection by deploying an array of...efficiency measures, saving 9.1 quadrillion BTUs of end use energy...

The majority of the 900 page bill is dedicated to defining and establishing a cap-and-trade program.  While a worthy goal, I think that the Boxer bill misses the opportunity to grasp low-hanging fruit in energy savings through energy efficient building requirements.

• Email This
• Print
• Trackbacks
• Share Link

Yesterday, a draft of the Boxer-Kerry senate version of the Waxman-Markey climate change bill was leaked to the media. I have previously posted about the proposed National Energy Efficiency Code in the Waxman-Markey bill and in the first proposed senate bill ACELA. 

Both of those proposed Energy Efficiency Codes had specific energy efficiency targets, timelines, adoption and implementation plans, and enforcement, though they differed somewhat in the specifics. Not so the Boxer-Kerry Bill.  What had been pages of turgid regulatory prose in the prior two bills has been condensed to a mere page and a half--Section 174, starting on page 113 of the draft bill for those of you following at home. 

The most interesting part is that all specifics have disappeared.  No mandated energy efficiency savings, no specifics for implementation timeline, no enforcement, nothing.  Just a mandate that the Department of Energy or "other agency head or heads as may be designated by the President" 

shall promulgate regulations establishing building code energy efficiency targets...beginnning not later than January 1, 2014... 

There is also a section requiring the suitable administrator to "promulgate regulations establishing national energy efficiency building codes."  The entire specifics of the regulations are as follows:

Such regulations shall be sufficient to meet the national building code energy efficiency targets...in the most cost-effective manner, and may include provisions for State adoption of the national building code standards and certification of State programs.

Many have argued that the Waxman-Markey and ACELA bills went too far--making the energy efficiency requirements too high, and requiring to fast an implementation timeline.  I would argue that the Boxer-Kerry draft does not go far enough--it simply does not provide the stick required to urge rapid development and adoption of a national energy efficiency code.  It also leaves a lot of room for further politicking at the administrative agency level.  What do you think?

• Email This
• Print
• Comments (4)
• Trackbacks
• Share Link

In an earlier post, I criticized the International Council of Shopping Centers (ICSC) for a letter sent to their members critical of the National Energy Efficiency Code provisions (Section 201) of the Waxman-Markey Bill (a summary of those provisions is available here). 

Yesterday,  I had the opportunity to speak to Kent Jeffreys, Staff Vice President in the Office of Global Public Policy of ICSC about their position on Waxman-Markey and the future of retail energy efficiency. Here are selections from our conversation:

GBLB: You were critical of the Waxman-Markey National Energy Efficiency Code proposal.  Why? 

KJ: One of the problems with the overall bill is that it is one size fits all when it comes to energy efficiency. For example, how do you measure the energy efficiency of a mixed use facility? Different code standards apply, and energy consumption is determined by tenant mix—a Best Buy and grocery store are different from a yoga studio and a shoe store. Waxman-Markey's adherence to the measuring stick being the building creates problems for shopping centers.

The bottom line is that the commercial building sector would like to see the same consideration that the utilities had—their deadlines were pushed off until 2020. There are a few facts that stand in the way of rapid adoption of a stringent new code. For example, many states don’t have energy codes at all. Other states have adopted different levels of ASHRAE. Waxman Markey refers to 2004 as the baseline. Then it says exceed 30% by 2010—which is tomorrow when it comes to new building construction. It is aggressive. We think it will be be problematic.

There are ways to achieve it. Talking to the technical folks, some are already exceeding ASHRAE by 20% or more. This requires certain design changes. If you start taking out windows, you can add more insulation. Most folks can move forward at 30%, we just don’t think they can do it by 2010. It is a bit unrealistic.

That is why we encouraged our members to talk to their members of congress about how they are increasing the energy efficiency. In the real world, we cannot make them all adopt cutting edge technology. The real world problems that we run into—if they have not been totally focused on energy efficiency, they are going to get a rude awakening if the bill passes in its current form.

The second step in the Waxmna-Markey Section 201, 50% by 2015, we actually don’t know how to do. You would have to change what ASHRAE addresses in order to calculate 50%, including operations, for example. 2015 is actually not that far away. At the very end, the coal burning utilities pushed their deadlines back by arguing technologically and economically that they couldn’t meet it.

These goals were picked in terms of political effectiveness, not technological. In the House, they were unwilling to even talk to us. Therefore, we couldn’t support the overall bill.

GBLB: What efforts did you make to try to work out these issues?

KJ: I went and met with people with folks from Wal-Mart, Target, developers, and let the staffers ask questions. The letter we sent out to our members was intended to inform about the fact that this will change the way they do business. Member of congress don’t know how this will impact their local communities. If you make it impossible for retailers to keep up with the times, in some communities it means jobs are not created, new projects and major renovations will not happen. I don’t really know the ramifications for the nation, but right now, no one is building anything because you can’t borrow money. We did not conduct a study to figure out how much 30-50% energy efficiency would cost—NAIOP figured out it would take 20 year payback. Then you have to figure out how you are financing it. We want members of congress to consider this. Right or wrong, the members of congress did take into consideration the cost for utilities.

There are things we support in the bill, like the REEP program. We tried to make this program more comprehensive.

GBLB: How would you suggest regulating your industry to create more energy efficiency?

KJ: The 40% “responsible” for GHG emissions by buildings—there is an underlying assumption that reduction by buildings lead to a 1 to 1 reduction of emissions. Direct emissions from commercial buildings is more like 4% than 40%. The initial responsibility means that we should be able reduce emissions by that much which is not realistic.

Until we address the generation issue—buildings are not the source of emissions—focusing on buildings is a false hope. If you look at California, the typical shopping center is more energy efficient, because of that experience, developers are adopting those procedures nationwide. But it’s going to take time. If 201 goes into effect, there will be no effect on overall GHG emissions. It will be swamped by other factors.

We would be happy to work with congress on a natioanl net metering standard, there is a patchwork of regulations right now. This would have very direct impact on reducing energy use—if there were economic incentives.

GBLB: What about the part of your letter which criticizes Waxman-Markey on the basis of creating additional code bureaucracy--"there is no trained inspection force to oversee a national building code, so it will require the federal government to retrain state employees and, no doubt, hire a huge number of new inspectors"? 

KJ: I think it is a critical flaw that congress passes a law and leave it to the states to implement. The states are strangled—they can’t run deficit spending. I don’t think that the federal government’s grant to the states for training and enforcement is sufficient. If the federal government thinks that the states will be able to enforce this code by 2010, with this amount of funding, they are sadly mistaken. Some states are really good and others are incompetent. You can’t say it is an anti-government notion—you have got to provide the resources to the states to get this done. The answer is for Congress to slow down and reconsider what it has done, or if you are going to pass the bill as written, give the states more money.

What if the states think implementing energy efficiency evaluation is too hard? Then they may say everybody passes and you get no increase in energy efficiency.  You need standards which are realistic and can be enforced and implemented by the public. 
 

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

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. 

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

By now, everyone has heard of "greenwashing"--a term used to describe the practice of companies disingenuously spinning their products and policies as environmentally friendly.  The new wave of anti-environmental action is more devious, and potentially more destructive.  I choose to term it "greenbashing." 

What is greenbashing? The use of seemingly reasonable arguments about catastrophic costs or unforeseen dangers to undermine progressive environmental programs.  There have been lots of examples of greenbashing lately.  Here are a few choice examples:

1.  Green roofs may spontaneously combust.  In challenging Toronto's recent mandatory green roof by-law, Don Marks, executive director of the Ontario Industrial Roofing Contractors Association, warns that

“I don’t believe that the insurance industry has caught up with the increased risk of fire that may result from improperly maintained green roofs...”

According to engineer Rob Diemer, partner with AKF Engineering, this threat does not comport with reality:

This is a new technology and the codes, insurance companies, underwriters and testing agencies are just now catching up. From what I have seen, we should see code language and testing protocols dealing with wind uplift and fire hazard for green roofing in the near future. In the mean time I think the fire hazards are minimal and depend a lot on the type of roof and plants used.

 

On an extensive roof using shallow, lightweight, mineral based growing medium and sedum plants, there is probably little or no fire hazard. Even if the plants should die due to a prolonged drought, the fuel load of the dead plants is minimal and it is likely that any fire would rapidly consume the plants and die out before damaging the building structure. Intensive roofs using deeper growing medium and larger plants may provide a larger potential fuel base; however, most of these roofs need to be irrigated which would tend to mitigate the fire hazard due to drought induced plant death. As with all things in life there are no guarantees; however, it would appear that the potential fire hazard of green roofs is more than outweighed by the many positive benefits they provide.

2. A national energy efficiency code will catastrophically increase housing prices.  The National Association of Home Builders issued a press release on June 29 regarding the national energy efficiency provisions of Waxman-Markey that Chris Cheatham and I discussed here in our Green Building Guide to Waxman-Markey.  According to the NAHB, requiring increased energy efficiency will have catastrophic effects on affordable housing:

The market is not geared up to supply the necessary materials and equipment, and that's going to drive up costs. The result will be fewer working-class families in these new energy-efficient homes. They'll be relegated to older, less efficient housing stock and face ever higher utility bills.

In addition, a national energy efficiency code would apparently impede regional sustainability considerations: 

Usurping states' rights to determine appropriate building efficiency for homes and buildings within their jurisdiction would result in ineffective application of efficiency standards to address varying climate zones and specific needs, he added.

The reality of the situation is, of course, that builders benefit from lack of regulation. Currently,  thirteen states have no statewide commercial building codes, and fourteen states have no statewide residential building code.  A national energy efficiency building code would impose regulations where none existed before, or more stringent regulations in jurisdictions with lagging codes.  The result might be higher costs of construction--but of course lower cost of ownership of homes in the long term.  

3.  A National Energy Efficiency building code will require huge new federal bureaucracy.  Our friends over at Sullivan Kreiss  reprinted a letter that the International Council of Shopping Centers sent to its members warning of the dangers of a national energy efficiency building code: 

The cost and complexity of this federal takeover of state and local building codes forced ICSC to oppose the overall bill. The specific efficiency targets are too aggressive and the deadlines are too short. In addition, there is no trained inspection force to oversee a national building code, so it will require the federal government to retrain state employees and, no doubt, hire a huge number of new inspectors. Supporters of this new federal program simply refused to negotiate or compromise on the language. As a result, ICSC does not support this provision.
 

Of course, the way that Section 201 is written, building codes will be drafted and implemented by code councils and the states/local governments in the same way they are now, unless those entities fail to develop codes that meet the Waxman-Markey efficiency standards.  Also, the ICSC letter fails to identify how retraining code official in energy efficiency and creating additional green jobs enforcing an energy efficiency code would be a bad thing.  

Greenbashing would be a rational approach to protect vested interests if there was vested interest to protect.  However, according to the Census Bureau, new housing starts in May were down over 45% from 2008 and shopping centers are being decimated as well.  Instead, these groups could embrace sustainable programs to create new demand for their products, and to help the climate crisis which will effect us all. 

• Email This
• Print
• Comments (4)
• Trackbacks
• Share Link

I wrote last week about the proposed National Energy Efficiency Building codes contained in Section 201 of Waxman-Markey. 

Section 201 of the Waxman-Markey Act calls for the development and adoption by state and local governments of a national energy efficiency code. A summary of the main provisions are as follows:

1. Establishes a “national energy efficiency building code” for residential and commercial buildings, sufficient to meet each of the national building code energy efficiency targets.

2. Sets energy efficiency targets for the national building code: “on the date of enactment of the American Clean Energy and Security Act of 2009, 30 percent reduction in energy use relative to a comparable building constructed in compliance with the baseline code…effective January 1, 2014, for residential buildings, and January 1, 2015, for commercial buildings, 50 percent reduction in energy use relative to the baseline code; and…January 1, 2017, for residential buildings, and January 1, 2018, for commercial buildings, and every 3 years thereafter, respectively, through January 1, 2029, and January 1, 2030, 5 percent additional reduction in energy use relative to the baseline code.”

3. If consensus based codes provides for greater reduction in energy use than is required under the ACESA, the overall percentage reduction in energy use provided by that successor code shall be the national building code energy efficiency target.

4. Requires that states and local governments comply with or exceed the national energy efficiency building code, and provides for enforcement mechanisms for states which are out of compliance.

The federalism issue looms lage with this provision of Waxman-Markey.  Building codes have historically been a state and local concern, not a national one. Advocates of state and local governance are already objecting  to this proposed transfer of authority.  On the other hand, state and local governments have failed to maintain current building and energy codes, in some cases imposing no building codes whatsoever. How to resolve this situation? 

 The answer, I believe, is form based energy codes. Form-based zoning codes:

are keyed to a regulating plan that designates the appropriate form and scale (and therefore, character) of development rather than only distinctions in land-use types.
 

By analogy, the Senate version of Waxman-Markey could maintain the targets for energy efficiency of building codes, and allow states and local governments to meet them through any means that fits the state and local needs.  This allows for continuing control of building codes at the state and local level, but mandates that state and local governments must have updated codes.    

• Email This
• Print
• Trackbacks
• Share Link

I have written here before about the ag lobby, homeowner associations and other under the radar foes of green regulation.  The Alternet has a great article on the role of financial lobbies in seeking lax oversight of carbon offsets and other regulatory tools.

• Email This
• Print
• Trackbacks
• Share Link

The great people over at Treehugger had some great additional thoughts on Friday's Waxman-Markey post.

Particularly interesting was Lloyd Alter's insight from his dealing with uniform building codes:

When I practiced architecture, I had to work with a building code that covered a territory that ranged from temperate at the south to arctic at the north, and quite capably handled it with maps and tables that adjusted requirements for degree-days, snow loads and other climactic differences, it's not that difficult.
 

Appendix writers, sharpen your pencils.  Alternatively, the building code could be a performance based code, which sets the standard and allows states and local governments to meet it in different ways. 

• Email This
• Print
• Trackbacks
• Share Link

[Many thanks to Chris Cheatham for collaborating with me on this post]

Today, the Waxman-Markey bill, otherwise known as the American Clean Energy and Security Act (H.R. 2454) is set to be voted on in the House of Representatives. The very fact that the vote is occurring means this bill will pass in the House. This monumental bill would establish a cap-and-trade program to cut global warming pollution. Of course, a cap-and-trade program faces an even more difficult path in the Senate.

So what is a cap-and-trade program exactly (PDF)?

The cap: Each large-scale emitter, or company, will have a limit on the amount of greenhouse gas that it can emit. The firm must have an “emissions permit” for every ton of carbon dioxide it releases into the atmosphere. These permits set an enforceable limit, or cap, on the amount of greenhouse gas pollution that the company is allowed to emit. Over time, the limits become stricter, allowing less and less pollution, until the ultimate reduction goal is met.

The trade: It will be relatively cheaper or easier for some companies to reduce their emissions below their required limit than others. These more efficient companies, who emit less than their allowance, can sell their extra permits to companies that are not able to make reductions as easily.

Companies will be required to purchase the emissions permits from the federal government, which in turn results in a sizeable revenue stream to the federal government. Much of the back room politicking that has occurred over the last few weeks regarding the Waxman-Markey bill has involved how this revenue stream will be allocated to government programs.

In addition to establishing an overall Cap-and-Trade program for carbon emissions, the Waxman-Markey bill contains several provisions which involve green building, and many green building and energy efficiency programs will be funded by the cap-and-trade revenue. Below is a summary of some of the major provisions regarding green building contained in the Waxman-Markey bill.

Section 201: National Energy Efficiency Building Codes

Section 201 of the Waxman-Markey Act calls for the development and adoption by state and local governments of a national energy efficiency code. A summary of the main provisions are as follows:

1. Establishes a “national energy efficiency building code” for residential and commercial buildings, sufficient to meet each of the national building code energy efficiency targets.

2. Sets energy efficiency targets for the national building code: “on the date of enactment of the American Clean Energy and Security Act of 2009, 30 percent reduction in energy use relative to a comparable building constructed in compliance with the baseline code…effective January 1, 2014, for residential buildings, and January 1, 2015, for commercial buildings, 50 percent reduction in energy use relative to the baseline code; and…January 1, 2017, for residential buildings, and January 1, 2018, for commercial buildings, and every 3 years thereafter, respectively, through January 1, 2029, and January 1, 2030, 5 percent additional reduction in energy use relative to the baseline code.”

3. If consensus based codes provides for greater reduction in energy use than is required under the ACESA, the overall percentage reduction in energy use provided by that successor code shall be the national building code energy efficiency target.

4. Requires that states and local governments comply with or exceed the national energy efficiency building code, and provides for enforcement mechanisms for states which are out of compliance.

The federalization of building codes has the potential to save consumers large amounts of money on their energy bills by enhancing the energy efficiency of buildings nationwide, as well as addressing the 38% of carbon emissions generated by buildings in a comprehensive manner. On the other hand, it represents a major shift in the balance of power over building and land use regulation. Traditionally, building codes, like almost all land use regulation in the United States has been a local (in some cases, state) issue. This makes for a patchwork of different codes across the nation. Indeed, thirteen states have no statewide commercial building codes, and fourteen states have no statewide residential building code.

Proponents of local control of regulatory authority argue that local government can more appropriately respond to local conditions and can experiment more freely with different types of regulations than would be possible at the federal level. On the other hand, federal control of building codes provide uniformity across the country for a problem which does not respect state and local borders, prevents local challenges to individual energy efficiency efforts (like AHRI v. City of Albuquerque) and, given the large number of states which do not have a current building code at all, provides more effective regulation of this important source of carbon emissions.

Section 131, 132: SEED funds

According to analysis completed by the American Council for an Energy-Efficient Economy,

allocations detailed in Section 782g direct 9.5% of allowances in 2012 (and decreasing amounts thereafter) to go into a State Energy and Environmental Development (SEED) account to be used by state and local governments for efficiency and renewables projects.

The allocation of SEED money will be at the discretion of local and state authorities.

One of the programs that can be funded by these allocation are Property Assessed Clean Energy (“PACE”) Bonds. PACE bonds involve loans to commercial and residential property owners to finance energy retrofits. Through the interest generated on these bonds, a revolving fund is established to allow for even more retrofits to occur. Already, California and Missouri have announced plans to use funding from the Department of Energy State Energy Program to establish PACE bond programs. Look for more states to jump on the PACE bond bandwagon and use cap-and-trade revenue to fund similar programs.

Section 202: REEP Program

With the American Recovery and Reinvestment Act, the Department of Energy’s State Energy Program received billons of dollars. Under the Waxman-Markey bill, the State Energy Program will again receive billions of dollars for more energy efficiency retrofits. From the Pew Center on Climate Change (PDF):

This section requires the Secretary of Energy to develop a Retrofit for Energy and Environmental Performance (REEP) program to facilitate building retrofit programs for energy efficiency and efficient water use. Funding will be made available through REEP to the State Energy Programs for state and local efforts, including audits, incentives, technical assistance, and training. States are permitted to choose funding mechanisms, with options including credit support, such as interest rate subsidies or credit enhancement, providing initial capital, and allocating funds for utility programs.

The REEP program has not been created yet so it is unclear what the program will look like. Based on the DOE’s previous support for PACE bond programs when allocating ARRA funds, don’t be surprised to see even more of these programs established through REEP.

Green Act: H.R. 2336—Amendment to Waxman-Markey

On May 7, 2009, Rep. Ed Perlmutter (D-Colorado) introduced H.R. 2336, the Green Resources for Energy Efficient Neighborhoods Act of 2009 (“GREEN ACT”). According to Perlmutter’s office, “The GREEN Act provides incentives to lenders and financial institutions to provide lower interest loans and other benefits to consumers, who build, buy or remodel their homes and businesses to improve their energy efficiency and use of alternative energy.”

In essence, the Act:

1. Encourages energy efficiency in HUD housing by offering block grants and credit for energy improvements in the underwriting of mortgages;

2. Provides that Fannie Mae and Freddie Mac will have a duty to serve very low, low and moderate income communities while developing underwriting standards to facilitate a secondary market for energy-efficient and location efficient mortgages;

3. Requires federal banking regulators to establish incentives for the development and maintenance of “green banking centers” for the purpose of providing information to customers seeking information about acquiring green mortgages.

Interestingly, Perlmutter’s GREEN Act passed the full House of Representatives as part of HR 6899, the Comprehensive Energy Security and Consumer Protection Act in September 2008, but the Senate failed to take action on this legislation. The GREEN ACT was added this morning to the manager's amendment to the Waxman-Markey bill.
 

• Email This
• Print
• Trackbacks
• Share Link