Building Better Building Performance Standards

Date01 April 2022
AuthorDanielle Spiegel-Feld, Katrina M. Wyman
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,
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
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://; 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),
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-
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),
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,
building-performance-standards (last visited Feb. 20, 2022).
4. RMI, e Impact of Fossil Fuels in Buildings: A Fact Base,
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
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).
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®,, 1-800-433-5120.

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