Existing Buildings

AuthorJames Charles Smith
Page 277
I. Introduction
Existing buildings in the United States account for
approximately half of U.S. energy consumption and 75%
of electricity consumption,1 and are a prime contributor to
greenhouse gas (GHG) emissions. For 2014, the building
sectors (residential and commercial) produced 1,995 mil-
lion metric tons (MMT) of carbon dioxide (CO2) equiv-
alent emissions.2 e Deep Decarbonization Pathways
Project (DDPP) reports cal l for drastically reduced CO2
emissions attributable to buildings by 2050 for all four
scenarios. e Mixed Scena rio has the most aggressive tar-
get, calling for only 76 MMT for emissions for all U.S.
buildings—a reduction of more than 96%.3 e High
Renewables and High Nuclear Scenarios are not much
more permissive, with targeted reductions of 95% and
94%, respectively.4 e High Carbon Capture and Storage
1. Architecture 2030, Why the Building Sector?, http://architecture2030.org/
buildings_problem_why/ (last visited Oct. 30, 2017); U.S. D
 E, 2011 B E D B 1-1 (2012), available at
2. J H. W  ., P  D D  
U S, U.S. 2050 R, V : T R 19 tbl.
7 (Deep Decarbonization Pathways Project & Energy and Environmental
Economics, Inc., 2015), available at http://usddpp.org/downloads/2014-
technical-report.pdf [hereinafter DDPP T R] (1,053 resi-
dential + 942 commercial).
3. Id.
4. Id.
(CCS) Scenario is more tolerant, allowing for 260 MMT,
a reduction of 87%.5
Buildings have long useful lives,6 and therefore a large
majority of today’s buildings will continue to be in use in
2050. e only way to achieve the DDPP’s deep carbon-
ization goals for the building se ctors is to retrot a majority
of our existing building s. is chapter discusses a number
of legal strategies that have potential in helping to meet
the goal. Section II explains how buildings contribute to
overall GHG emissions, describes the DDPP objectives for
buildings for each scenar io, sets forth its recommendations
on how to achieve the decarbonization of existing build-
ings, and discusses some additional measures and general
principles that bear on the objective.
e remainder of the chapter analyzes pathways that
may lead to the deep decarbonization of existing residen-
tial and commercial buildings, as follows: Section III,
energy audit programs, which include the benchmarking
of buildings; Section IV, mandatory retrot laws, which
require building owners to make cha nges to achieve energy
eciency; Section V, the special case of energy eciency
5. Id.
6. Census data shows that the average U.S. home is 40 years old. Many are much
older. More than 40 million U.S. homes that are presently occupied were
built before 1960. James Charles Smith, Making Existing Homes Greener, 4
T. AM J. P. L. 117, 122 (2017) [hereinafter Smith, Making Existing
Homes Greener]. Likewise, commercial buildings have long useful lives. Stuart
A. Feldman, Research Commentary, E C. P. D (at
the end of 2016, the average U.S. commercial building was about 50 years
old (49.07 years)), http://www.commbuildings.com/ResearchComm.html.
Chapter 11
Existing Buildings
by James Charles Smith
Existing buildings account for 75% of U.S. electricity consumption. e Deep Decarbonization Pathways Proj-
ect reports call for a drastic reduction of greenhouse gas emissions attributable to buildings, ranging from 87%
to 96% depending upon the scenario. Because buildings have long useful lives, the only way to achieve the goal
is to retrot a majority of our existing buildings. is chapter discusses six legal pathways that, when used in
combination, may accomplish the objective: energy audits; mandatory retrot laws; energy-eciency perfor-
mance standards for new buildings; voluntary certication systems; switching from fossils fuels to low-carbon
electricity; and nancing programs.
Page 278 Legal Pathways to Deep Decarbonization in the United States
standards for government buildings; Section VI, volun-
tary certication systems pursuant to which buildings are
certied as meeting specied standards; Section VII, fuel
switching from fossil fuels to elect ricity; and Section VIII,
nancing mechanisms that allow building owners to bor-
row funds to retrot their buildings. A ll of these strategies
have potential, and can be used together productively.
Most of the measures described above aim at the e-
cient use of energy. Cutting down on the enormous quan-
tities of electricity used in buildings is essential for two
reasons. First, an appreciable amount of our electricity
supply in 2050, just as today, probably will not be carbon
neutral even though the DDPP reports call for decarbon-
izing electricity.7 us, reduced ele ctricit y consumpt ion
in buildings will reduce carbon emissions associated with
electricity generation. Second, reduced building-related
consumption will help the electrical utility industry to
transform to zero-emission and low-emission production
by cutting overall demand (or at least help counteract the
increased demand from electric ation of vehicles and of
buildings). Energy eciency might be achieved through
energy audit programs, with building owners incentiv-
ized by market considerations to invest in energy eciency
improvements to their properties. Mandatory retrotting
laws are more direct, and probably should be used for at
least some types of existing buildings.
e single most important pathway to deep decarbon-
ization is fuel switching from fossil fuels to electricity gen-
erated with no CO2 or very low CO2 emissions. e DDPP
policy report emphasizes that “[e]nergy policy for build-
ings and appliances must shif t focus to carbon emissions
rather primary energy u se, and from traditional energy
eciency to fuel switching.”8 It is not possible to achieve
the DDPP’s objectives for the building sectors without
electrifyi ng a large majority of the country’s existing build-
ings. is means replacing spac e heating and water heating
systems that consume fossil f uels on-site (mainly natural
gas, but also heating oil and propane) with all-electric sys-
tems. Mandatory fuel switching, at least for many types
of buildings, is necessary. As an alternative, incentive pro-
grams might work in principle, but present market condi-
tions for the natural gas industry make it highly unlikely
that incentive progra ms would induce enough bu ilding
owners to convert from natural gas to electricity.
Existing buildings can also be ret rotted to generate
their own electricity, especially with rooftop solar pho-
7. See DDPP T R, supra note 2, at 35-37.
8. J H. W  ., P  D D  
U S, U.S. 2050 R, V 2: P I 
D D   U S 15 (Deep Decarbonization
Pathways Project & Energy and Environmental Economics, Inc., 2015), avail-
able at http://usddpp.org/downloads/2015-report-on-policy-implications.
pdf [hereinafter DDPP P R].
tovoltaic cells. is kind of distributed generation is dis-
cussed in Chapter 19 (Distributed Renewable Energy).
II. Existing Buildings and GHG Emissions
A. Contribution of Buildings to Overall GHG
Buildings have always constituted the major ingredient
of our “built environment,” which consists of human-
made physical structures and physical infrastructure in
all places—urban, suburban, and rural.9 Buildings obvi-
ously have immense value, but they also have an enormous
impact on our environment. e construction of buildings,
and their ongoing maintenance and use, devour massive
quantities of raw materials.10 Buildings cover large areas of
natural and open lands. e y account for approximately
half of U.S. energy consumption and 75% of electricity
consumpt ion.11 Buildings also devour large shares of natu-
ral gas and water supplies.12
Buildings are a prime contributor to GHG emissions,
a concern of heightened importance in an era of global
climate change. According to the Buildings Energ y Data
Book published by the U.S. Department of Energy (DOE),
buildings are presently the biggest c ontributor to U.S. CO2
emissions. ey directly or indirect ly emit 40% of the
na ti on’s CO 2 emissions, an increase f rom 33% in 1980.13
Most of the emissions stem from building-related electric-
ity consumption.14 DOE projects the percentage to fal l to
38% in 2020 and to rise to 41% in 2030 and 2035.15
e United States has approximately 135 million dwell-
ing un its,16 housing a population of more than 313 mil-
lion people.17 Most of the units— almost 84 million—are
9. See R P. L, T B E  P H 5
(2012) (“built environment itself consists of all the many features that have
been constructed and modied by humanity [including] the construction
of homes [and] the structure of neighborhoods and metropolitan areas”).
10. Globally, buildings use 40% of raw materials. U.S. G B
C, G B F 2, https://www.usgbc.org/sites/default/
11. Architecture 2030, supra note 1. Building operations consume 41.7%, and
building construction and materials make up 5.9%. Id. Slightly lower per-
centages are reported by the U.S. Department of Energy (DOE). Buildings
account for 72.9% of the electricity and 41.1% of the total primary energy
consumed in the United States, a number that has risen from 33.7% in 1980.
U.S. D  E, supra note 1, at 1-1.
12. Buildings use about 21% of the gas and 10% of the water consumed in the
United States. U.S. D  E, supra note 1, at 1-1, 8-1.
13. Id. at xx, 1-19, tbl. 1.4.1. is percentage does not include emissions of
buildings-related energy consumption in the industrial sector. Id. at 1-19.
14. Id. at 1-19.
15. Id.
16. e Census Bureau estimates 134,789,944 as of July 1, 2015. U.S. Cen-
sus Bureau American FactFinder, Annual Estimates of Housing Units for
the United States, 2015 Population Estimates, https://factnder.census.
PEPANNHU&prodType=table (last updated May 2016). is is an increase
of more than three million units from July 1, 2010. Id.
17. Id.; U.S. Census Bureau American FactFinder, Monthly Population Esti-
mates for the United States, 2015 Population Estimates, https://factnder.

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