Transcript Green Building And The Law

Red White & Green:
Recent Changes To Federal Green
Building And Renewable Energy
Policy
Shari Shapiro, J.D., LEED AP
The Federalism Question
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"But as the plan of the [Constitutional]
convention aims only at a partial union or
consolidation, the State governments would
clearly retain all the rights of sovereignty
which they before had, and which were not,
by that act, EXCLUSIVELY delegated to the
United States.“
-- Alexander Hamilton
Change In Legal Trends
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Historically, environmental regulations has relied on
national “command and control” approach to
compliance
Federal environmental enforcement and stewardship
in decline since 2000.
Trend is reversing due to:
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2008 election cycle
Public awareness and concern about Global Warming
Energy price spike
State and Local Action
Types of Green Building and
Renewable Energy Policies
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Command and Control Type Regulations
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Financial Incentives
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2008—Portland enacts “feebate” structure
Non-Financial Incentives
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July 17, 2008—California adopts green building code for all
new construction statewide
2007—Boston, Washington, San Francisco, Los Angeles
mandate green building requirements for new construction
above a specified square footage
Waxman-Markey Nationwide Energy Efficient Building Code
Expedited permitting; increased FAR, building height or density
for green buildings
Green Jobs training
Government As Market Participant
Growth Of Green Building And
Renewable Energy Policies
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Green practices are being incorporated into state and
local zoning and building codes and ordinances
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14 percent of U.S. cities with populations of more than 50,000
have green building programs
The number of counties with green building programs has
grown by nearly 400 percent since 2003
Federal statutes require federal agencies to procure
recycled material, reduce energy consumption and
prevent pollution.
Areas of Development At The Federal
Level
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Federal Energy Policy
Federal Leadership in Environmental,
Energy, and Economic Performance
Executive Order
SEC Climate Change Risk Disclosure
Guidelines
Incentives
Other Federal Policies On The Horizon
American Clean Energy Security Act
(aka Waxman-Markey)—Cap & Trade
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The bill was approved by the House of
Representatives on June 26, 2009 by a vote of
219-212
The bill proposes a cap and trade system,
under which the government sets a limit (cap)
on the total amount of greenhouse gases that
can be emitted nationally. Companies then buy
or sell permits to emit these gases, primarily
carbon dioxide (CO2).
American Clean Energy Security Act
(aka Waxman-Markey)—Cap & Trade
GHG emission reductions (benchmark is 2005 emission levels)
Year
Required Annual Percentage
2012
3.0
2020
17.0
2030
42.0
2050
83.0
American Clean Energy Security Act
(aka Waxman-Markey)
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Section 201—National Energy Efficiency Building Code
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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,
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.
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Section 131, 132—SEED funds for state energy efficiency programs
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Section 202—REEP Program--EPA Administrator to develop and
implement standards for a national building retrofit policy for residential
and nonresidential buildings. Funding will be made available through
REEP to the State Energy Programs for administration of the program.
American Power Act—Cap & Trade
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Emissions would be cut by 17 percent below 2005
levels by 2020 and by more than 80 percent by 2050.
It would also provide for a separate, more urgent
limit-and-reduction schedule for super-greenhouse
gases and black carbon.
Introductory floor and ceiling prices are set at $12
(increasing at 3 percent over inflation annually) and
$25 (increasing at 5 percent over inflation annually),
respectively.
The bill only requires the largest sources of pollution
to comply with reduction targets: those who produce
more than 25,000 tons of carbon pollution annually.
American Power Act—Cap & Trade
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Restrictions would take effect in 2013 for
power plants and transportation fuels and in
2016 for manufacturers.
Two-thirds of emissions revenues not used
for deficit reduction will be sent back to
consumers.
States will not be permitted to operate capand-trade programs for greenhouse gases.
American Power Act—Other
Provisions
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Increased funding for nuclear loan guarantees to $54
billion, ten percent tax credit for the construction of
certain nuclear power facilities and tax-exempt
bonds to be used for public-private partnerships for
advanced nuclear power facilities.
$2 billion for clean coal
Expands the clean energy manufacturing tax credit
by $5 billion, providing incentives for the production
of advanced vehicles and component parts and
funding investments in energy efficiency innovation.
Carbon tariff
American Power Act—Energy
Efficiency
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States are allocated between 2.5% and 1% of all green house
gas emission allowances.
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Of that allocation, .5% must go to Indian Tribes.
With the remainder, the states may use for a variety of
programs, including energy efficiency, renewable energy and
transportation.
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1) Energy efficiency purposes, including implementation of
programs related to—
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(A) building codes that improve energy efficiency;
(B) energy-efficient manufactured homes;
(C) building energy performance labeling;
(D) low-income community energy efficiency improvements; and
(E) energy efficiency retrofits of existing buildings.
Federal Energy Policy, Cont.
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November 5, 2009--Clean Energy Jobs and
American Power Act (S.1733) was passed by the
Senate Environment and Public Works Committee.
Several other bills in progress in the Senate
Some compilation of the bills likely to be developed
this year
Passage of a comprehensive bill is unclear, but
energy efficiency is likely to be part of a smaller
energy bill
Federal Leadership in Environmental,
Energy, and Economic Performance
Executive Order
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October 5, 2009--President Barack Obama
issued an executive order entitled "Federal
Leadership In Environmental, Energy and
Economic Performance."
EO sets out ambitious goals for every
federal agency to pursue sustainable
priorities, including developing net-zero
buildings, and to report on their
environmental performance
Climate Change Risk Shareholder
Resolutions
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2005 SEC guidance concluded that
resolutions [about climate change risk]
could be omitted under SEC Rule 14a-8
(i)(7) as ordinary business matters, not
suitable for shareholder consideration
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New 2010 SEC revisions to Staff Legal
Bulletin No. 14E (CF) state that in deciding
when a company can omit a resolution,
rather than focusing on whether a
resolution relates to an evaluation of risk,
the staff will instead focus on the
underlying subject matter to which the
risk pertains.
Climate Change Risk Disclosures
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Jan. 27, 2010 — The Securities and Exchange
Commission voted to provide public companies with
interpretive guidance on existing SEC disclosure
requirements as they apply to business or legal
developments relating to the issue of climate change.
Areas of risk:
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Impact of Legislation and Regulation
Impact of International Accords
Indirect Consequences of Regulation or
Business Trends
Physical Impacts of Climate Change
Incentives—ARRA
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Signed into law February 17, 2009
Green Building Funding
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General Services Administration
$4.5 billion
Department of Defense
$3.6 billion
States
$3.1 billion and $3.2 billion
Incentives—
Federal Tax Incentives
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COMMERCIAL TAX DEDUCTION
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Up to $1.80 per square foot is available to owners or
designers of new or existing commercial buildings that save
at least 50% of the heating and cooling energy of a building
that meets ASHRAE Standard 90.1-2001.
Partial deductions of up to $.60 per square foot can be
taken for measures affecting any one of three building
systems: the building envelope, lighting, or heating and
cooling systems
Incentives—
Federal Tax Incentives
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RESIDENTIAL TAX CREDITS
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Tax credits are available at 30% of the cost, up to $1,500, in 2009 & 2010
(for existing homes only) for:
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Windows and Doors
Insulation
Roofs (Metal and Asphalt)
HVAC
Water Heaters (non-solar)
Biomass Stoves
Tax credits are available at 30% of the cost, with no upper limit through
2016 (for existing homes & new construction) for:
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Geothermal Heat Pumps
Solar Panels
Solar Water Heaters
Small Wind Energy Systems
Fuel Cells
Other Federal Legislation On The
Horizon
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Building Star—S. 3079--provides rebates for
retrofitting commercial and multifamily buildings in
existence as of December 31, 2009 with energy
efficient components, like insulation, window, doors,
HVAC equipment, etc.
Federal Personnel Training Act of 2010 (yet to be
introduced)--focuses on training federal personnel to
operate and maintain high performance buildings
Livable Communities Act of 2009-- S. 1619--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.
For More Information
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Green Building Law Blog-www.greenbuildinglawblog.com
Pew Center--Global Climate Change Program-www.pewclimate.org
SEC—www.sec.gov
DSIRE Website—www.dsireusa.org
USGBC—www.usgbc.org
Delaware Valley Green Building Council—
www.dvgbc.org