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Section 201 of Waxman-Markey Could Impose Energy Efficiency Mandates as Decried by NAIOP

As the Waxman-Markey climate change legislation heads to the Senate, I think it’s important to note that, as currently drafted, the bill includes provisions that could impose the types of energy efficiency mandates which NAIOP argued against in its controversial report that was released earlier this year. Section 201 of the American Clean Energy and Security Act (H.R. 2454) would first set baseline standards for all commercial (ASHRAE 90.1-2004) and residential buildings (the 2006 IECC code) and dates for certain percentage reduction targets in energy consumption over those baselines. The Act would require an immediate 30 percent reduction over those baselines once enacted (likely in 2011 or 2012 if the bill proceeds through the Senate and is implemented as drafted), followed closely by a 50 percent reduction by 2014 for residential buildings and 2015 for commercial buildings. The reduction mandate would increase by 5 percent every 3 years through 2029/2030 for a total reduction of 75 percent over the baselines. However, the Department of Energy would have the ability to increase or decrease the reduction targets based on technological feasibility. Section 201 further obligates state and local governments to adopt the codes, or their own codes that meet or exceed the established targets; the federal government itself will enforce the national codes if state and local governments fail to comply. If you recall the comments from NAIOP President Thomas Bisacquino in the aftermath of the uproar created by the NAIOP study, Waxman-Markey may ultimately create the precise scenario that NAIOP and its constituents feared: 30 to 50 percent reductions over ASHRAE 90.1-2004 in the short-term.

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“Whither the Lawsuits?” A Mid-2009 Assessment of the State of Green Building Litigation

In a piece that appeared both on her blog and at Greener Buildings, my colleague Shari Shapiro opines on why, as we rapidly approach the midpoint of 2009, there remains a dearth of reported lawsuits arising out of green building projects, despite much commentary suggesting the contrary to be imminent. Ms. Shapiro suggests four reasons: (1) a relative lack of green building practices generally as compared to overall construction; (2) owners who are “too afraid” to measure building performance and are thus unable (or unwilling) to assert a claim arising out of violated green building expectations; (3) a general reluctance to engage in costly litigation given the economic downturn; and (4) the green building movement’s relative infancy. However, over the course of 2009, and notwithstanding the lack of lawsuits filed to date, there has been an explosion in commentary on green building litigation across the legal community. Accordingly, I thought Ms. Shapiro’s piece was particularly timely and worthy of some additional discussion here at GRELJ.

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NAIOP Responds to Critics by Making Case for Incentives to Boost Efficiency in Commercial Office Buildings

I took great interest in a number of the documents that NAIOP released in the aftermath of its controversial energy efficiency study. The organization has compiled both an FAQ and fact sheet detailing the various assumptions it made and conclusions it drew in an effort to clarify some of the unproductive vitriol that has flown around the web over the past month decrying its conclusion that 30 percent energy reductions are not practicable for the majority of commercial office properties. Both the fact sheet and FAQ are available on NAIOP’s web site and point out that the results of the study do not apply to all buildings; “[t]he study analyzes a typical office building that represents more than 50 percent of new Class A construction [that took place] in 2008.” NAIOP also clarifies that the subject building is a real 95,000-square-foot, speculative commercial office property in California, and claims that the results of its study show what’s possible for the “vast majority of new construction without having to redesign a typical office building,” calling the results “impressive.”

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