Toward Tradable Building Performance Standards

• Date: 01 May 2022
• Author: Danielle Spiegel-Feld and Katrina M. Wyman

52 ELR 10356 ENVIRONMENTAL LAW REPORTER 52022

COMMENTS

TOWARD TRADABLE BUILDING

PERFORMANCE STANDARDS

by Danielle Spiegel-Feld and Katrina M. Wyman

Danielle Spiegel-Feld is Executive Director of New York University (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.

The European Union, China, California, a nd a num-

ber of U.S. states in the Northeast are currently

using emissions trading as part of their eorts to

reduce greenhouse g as (GHG) emissions.1 How ev er, t he

popularity of emissions trading a s a policy tool co-exist s

with a well-established, and increasingly politically power-

ful, set of critiques of it in the United States. ese critiques

come from environmental justice advocates as well as some

academics and other observers.2

For example, in 2021, President Joe Biden decided not

to appoint prominent California environmental regulator

Mary Nichols as administrator of the U.S. Environmental

Protection Agency (EPA) after a long list of environmental

justice-oriented organizations criticized her for being in sen-

sitive to environmental justice concerns3; Nichols’ suppor t

1. See W B, S  T  C P 2021, at 22

(2021).

2. See, e.g., William Boyd, e Poverty of eory: Public Problems, Instrument

Choice, and the Climate Emergency, 46 C. J. E’ L. 399 (2021).

3. See Anna M. Phillips, Environmental Justice Groups Block Mary Nichols’

Path to EPA, L.A. T (Dec. 17, 2020), https://www.latimes.com/en

vironment/story/2020-12-17/environmental-justice-groups-block-mary-

nichols-path-to-epa; see also Letter from Drew Hudson, Founder,

198 methods et al., to Biden-Harris Transition Team (Dec. 2, 2020),

for California’s GHG emissions trading program was given

as a key example of her disregard for environmental justice

communities (EJCs).4 Extending long-stand ing critiques

of trading, academics a lso have recently questioned the

ecacy of existing emissions trading programs in reduc-

ing GHG emissions.5 ey have argued that the politics of

these programs are bound to weak en them,6 and that emis-

sions trading is a complex neoliberal idea ill-suited to the

ambitious goal of societal decarbonization.7

Against this backdrop, this Comment ventures to pro-

pose an innovative application for trading: the develop-

ment of a municipal trading program to help reduce GHG

emissions from buildings, which account for the lion’s

share of many cities’ GHG emissions.8 We call the pro-

posed policy mechanism a “tradable building performance

https://1bps6437gg8c169i0y1drtgz-wpengine.netdna-ssl.com/wp-content/

uploads/2020/12/2020-12-2-Nichols-letter.pdf.

4. See Phillips, supra note 3; Letter from Drew Hudson et al., supra note 3

(“Ms. Nichols and the [California Air Resources Board], in initially de-

signing the carbon trading system, were fully aware of the disproportion-

ate impacts that cap and trade would have on the health of low-income

communities of color. Yet, they championed this strategy that perpetrated

environmental racism.”) (emphasis omitted). Note that some recent aca-

demic studies of the California emissions trading program have failed to

nd evidence to support the claim that the program has increased the pollu-

tion burden on low-income communities of color. See infra notes 41-45 and

accompanying text. However, some other scholars have produced contrary

ndings. See Kristoer Tigue, Why Do Environmental Justice Advocates Op-

pose Carbon Markets? Look at California, ey Say, I C N

(Feb. 25, 2022).

5. See Jessica F. Green, Does Carbon Pricing Reduce Emissions? A Review of Ex-

Post Analyses, 16 E’ R. L 043004, at 5-11 (2021).

6. See D C  D G. V, M C P

W  7 (2021).

7. See Boyd, supra note 2, at 448-49, 469-70, 486-87.

8. See, e.g., Press Release, Oce of the Mayor of Chicago, Mayor Lightfoot

Announces a Building Decarbonization Working Group (June 2, 2021),

https://www.chicago.gov/city/en/depts/mayor/press_room/press_releases/

2021/june/DecarbonizationWorkingGroup.html (70% in Chicago); City

of Boston, Building Emissions Reduction and Disclosure, https://www.bos-

ton.gov/departments/environment/building-emissions-reduction-and-dis

closure (last updated Feb. 25, 2022) (70% in Boston); New York City

Council, Climate Mobilization Act, https://council.nyc.gov/data/green/

(last visited Mar. 6, 2022) (71% in New York); Washington, D.C., Depart-

ment of Energy & Environment, Greenhouse Gas Inventories, https://doee.

dc.gov/service/greenhouse-gas-inventories (last visited Mar. 6, 2022) (71%

in Washington, D.C.).

Authors’ Note: Danielle Spiegel-Feld was the lead author

of a 2021 report for New York City that examined whether

the city should develop a carbon trading program pursuant

to its landmark building performance regulation, Local Law

97 of 2019. See Danielle Spiegel-Feld et al., Carbon Trad-

ing for New York City’s Building Sector: Report of the Lo-

cal Law 97 Carbon Trading Study Group to the New York

City Mayor’s Office of Climate and Sustainability (2021).

Katrina Wyman was also an author of the report. The views

expressed in this Comment draw from lessons learned

throughout the study of Local Law 97. Numerous contribu-

tors to the report, including Mary Jiang, Gilbert Metcalf,

Jonathan Meyers, Sara Savarani, Jason Schwartz, Kath-

leen Spees, Kasparas Spokas, Burcin Ünel, and Mark

Willis, as well as conversations with outside stakeholders,

greatly influenced the authors’ thinking about the potential

to develop a tradable building performance standard.

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