Building Better Building Performance Standards

• Date: 01 April 2022
• Author: Danielle Spiegel-Feld, Katrina M. Wyman

52 ELR 10268 ENVIRONMENTAL LAW REPORTER 42022

COMMENTS

Policyma kers at the local,¹ state,² and federal³ levels

are increasingly turning to building performance

standards (BPSs) to reduce buildings’ contributions

1. See, e.g., 2019 N.Y.C. Local Law No. 97, N.Y.C. Charter §651, N.Y.C. A-

. C §§24-802(e), 24-803(a)-(b), 28-320, 28-321 (2022); Boston,

Mass., Ordinance Amending City of Boston Code, Ordinances ch. VII,

§§7-2.1 and 7-2.2, Building Energy Reporting and Disclosure (BERDO)

(Oct. 5, 2021); Denver, Colo., Council Bill 21-1310 (Nov. 24, 2021); St.

Louis, Mo., Building Energy Performance Standards (BEPS), Ordinance

71132 (Apr. 20, 2020); Washington, D.C., CleanEnergy DC Omnibus

Amendment Act of 2018, D.C. Law 22-257, 66 D.C. Reg. 1344 (Jan. 18,

2019); Chula Vista, Cal., Ordinance 3498 (Mar. 2, 2021).

2. Washington State has a building performance standard (BPS). Washington

State Department of Commerce, Clean Buildings Performance Standard,

https://www.commerce.wa.gov/growing-the-economy/energy/buildings/

clean-buildings-standards (last visited Feb. 20, 2022). In 2021, Colorado

passed legislation directing the development of a BPS. Colorado Energy

Oce, Building Benchmarking, https://energyoce.colorado.gov/climate-

energy/energy-policy/building-benchmarking (last visited Feb. 20, 2022).

New York State is considering developing a BPS. See N Y S

C A C, D S P 123-25 (2021), https://

climate.ny.gov/Our-Climate-Act/Draft-Scoping-Plan; New York State En-

ergy Research and Development Authority (NYSERDA), Day 1—Draft

Carbon Neutral Buildings Roadmap Presentation, YT, at 00:36 (June

23, 2021), https://www.youtube.com/watch?v=ldKaJk4fJm0.

3. President Joseph Biden issued an Executive Order on December 8, 2021,

directing the Council on Environmental Quality to establish BPSs for feder-

al buildings. Anna Phillips, Biden Wants to Make Federal Government Carbon

Neutral by 2050, W. P (Dec. 8, 2021, 4:18 PM), https://www.wash-

ingtonpost.com/climate-environment/2021/12/08/biden-government-pur-

chasing-climate-change; Exec. Order No. 14057, Catalyzing Clean Energy

Industries and Jobs rough Federal Sustainability, §§205(a), 510(b), 86

Fed. Reg. 70935, 70936, 70941 (Dec. 8, 2021). In January 2022, President

Biden ocially announced the “Building Performance Standards Coali-

to climate change. is growing interest in BPSs reects

the signicance of buildings as a source of greenhouse gas

(GHG) emissions; building emissions come from fossil

fuels burned in buildings for cook ing on natural gas stoves,

from natural gas a nd oil used for heating and hot water,

and from electricity bought by building occupa nts. Per-

formance standards seek to reduce GHG emissions attrib-

utable to buildings by setting a standard that buildings

must meet. As the climate crisis ac celerates, and the federal

government continues to stumble in its eorts to decar-

bonize the energy sector, strategies that seek to reduce the

market’s appetite for carbon-intensive energy have become

all the more important.

A key question in designing BPSs is what “metric” the

standards should use to gauge a bui lding’s performance.

For instance, should the laws measure and encourage

reductions in the total amount of energy that buildings

use? Or should the laws track and encourage reductions in

the GHGs attributable to building energy use? e adage

“you can’t improve what you don’t measure” underscores

what is at stake in the debate about the metric for this

emerging form of regulation. Whether these laws measure

the performance of buildings i n terms of energy use, GHG

emissions, or something else will have a major impact on

the behavioral changes that they induce in buildings.

For example, a law that measures GHG emissions might

induce building managers to subst itute less GHG-intensive

solar energy for more GHG-intensive oil or natural gas

tion,” which includes 33 state and local governments. Rachel Frazin, Biden

Launches Green Buildings Partnership With States, Cities, H (Jan. 21,

2022, 1:58 PM), https://thehill.com/policy/energy-environment/590805-

biden-launches-green-building-partnership-with-states-cities. For a map of

state and local jurisdictions with BPSs, see Institute for Market Transforma-

tion, Building Performance Standards, https://www.imt.org/public-policy/

building-performance-standards (last visited Feb. 20, 2022).

4. RMI, e Impact of Fossil Fuels in Buildings: A Fact Base, https://rmi.org/

insight/the-impact-of-fossil-fuels-in-buildings (last visited Mar. 2, 2022).

5. See Jacob Drucker, You Are What You Measure, F (Dec. 4, 2018, 8:00

AM), https://www.forbes.com/sites/theyec/2018/12/04/you-are-what-you-

measure (attributing the adage to Peter Drucker); see also Institute for Mar-

ket Transformation, Building Performance Policy Center, https://www.imt.

org/public-policy/building-performance-policy-center (last visited Feb. 20,

2022) (using the adage “[y]ou can’t manage what you don’t measure” in

discussing benchmarking).

BUILDING BETTER BUILDING

PERFORMANCE STANDARDS

by Danielle Spiegel-Feld and Katrina M. Wyman

Danielle Spiegel-Feld is Executive Director of NYU Law’s Guarini Center on Environmental,

Energy and Land Use Law and Adjunct Professor of Urban Environmental Law at NYU

Law. Katrina M. Wyman is Sarah Herring Sorin Professor of Law at NYU Law.

Authors’ Note: Spiegel-Feld was the lead author of a 2021 re-

port for New York City that examined whether the city should de-

velop a carbon trading program pursuant to its landmark build-

ing performance regulation, Local Law 97 of 2019. See Danielle

Spiegel-Feld et al., Carbon Trading for New York City’s Building

Sector: Report of the Local Law 97 Carbon Trading Study Group

to the New York City Mayor’s Office of Climate & Sustainability

(2021). Wyman was also an author of the report. The views ex-

pressed in this Comment draw from lessons learned throughout

the study of Local Law 97. Conversations with numerous members

of the Local Law 97 Study Team, New York City officials, as well

as outside stakeholders influenced our thinking about the design

of building performance standards.

Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.