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November 17, 2023

Building Performance Standards (BPS): East Coast Approaches to Reducing Building Stock Emissions

Katherine Lee Goyette

What Are Building Performance Standards?

Building emissions performance standards or building performance standards (BPS) are state or local laws that require existing buildings to achieve minimum levels of energy or climate performance. BPS policies are gaining traction nationwide with policy makers as a strategy to reduce greenhouse gas (GHG) emissions from building stock. GHG emissions in buildings derive from the use of fossil fuels within them, such as natural gas used for cooking or both natural gas and oil used for heating, hot water, and electricity. Building performance standards are thus intended to encourage reductions in GHG emissions by setting threshold standards that certain-sized buildings must achieve. D. Spiegel-Feld, Building Better Building Performance Standards, 52 Envtl. L. Rep. 10268 (2022). Generally, BPSs regulate medium and large-sized commercial or industrial-type buildings (as they tend to emit more emissions than smaller buildings) and require them to meet fixed carbon reduction targets that decrease over time. While smaller residential building stock makes up a substantial portion of building emissions, residential buildings will generally have a harder time meeting BPS emissions caps compared to commercial buildings (as electricity provides a larger proportion of all energy used in commercial buildings). Id. The shift from utility or government incentive programs to encourage achievement of building emissions reduction targets toward a BPS-style approach is occurring as BPS programs mandate participation and are structured to look at the lifecycle emissions of buildings.

Types of Building Performance Standards

There are two main types of building performance standards. Boston and New York City have implemented building performance standards that cap total GHG emissions per building square foot, while other jurisdictions such as Denver and Washington, D.C., have adopted energy-efficiency standards limiting the amount of total energy consumed per square foot. Id. The difference between these standards is that the former does not technically require a reduction in energy consumption (as compliance with an emissions reduction requirement can be achieved through substituting oil, coal, or natural gas energy with low or-zero-GHG-emitting energy). Alternatively, an energy efficiency-based standard may not incentivize switching to less-polluting types of energy or to renewable energy (as a GHG-emissions cap standard would). Id. Pairing a BPS with complementary policies like phase-out dates for the sale of emitting HVAC equipment could help address the potential weaknesses of both varieties of building performance standards.

Building Emissions Reduction Approaches in New England

Building emissions reductions approaches in New England vary. In 2021, Maine adopted an updated building and energy code for all newly constructed buildings as well as an energy “stretch” code for ambitious communities that prefer to adopt compliance pathways that are more aggressive than the state’s baseline code. In 2019, Vermont’s legislature required the convening of both a residential building energy labeling working group, and a commercial and multi-unit building energy labeling working group, to review requirements for assessors, training programs, building energy performance reporting requirements, standardization of information on energy labels, and other matters relating to building emissions benchmarking and energy ratings. While the final 2021 report provided several recommendations, it specifically did not require BPS-style reporting of building energy information beyond already-existing weatherization reporting requirements. Most recently, Vermont enacted the Affordable Heat Act, which establishes a clean heat standard that both reduces GHG pollution and transitions households to more affordable heating practices. A clean heat standard is a performance standard for the heating fuel sector, whereas a BPS program establishes a performance standard for the buildings sector. BPS and clean heat standard policies should complement each other, as the increased use of clean heat measures would naturally reduce building sector emissions.

Rhode Island has reviewed the potential of zero-energy and high-performance buildings, or buildings that can generate as much energy as it consumes. In 2016, the state’s electric company published a white paper that analyzed zero-energy building adoption throughout the state. While statewide adoption of zero-energy buildings is challenging due to market barriers, the state did adopt its first voluntary stretch code two years later. Massachusetts’ state 2050 decarbonization roadmap and accompanying buildings sector technical report published in 2020 recommended adoption of green energy codes for new construction but did not go as far as a BPS program recommendation. Climate legislation enacted in 2022 did include a statewide BPS-style benchmarking requirements for large state-owned buildings, though with a delayed 2024 effective date. Finally, the City of Boston has established a “true” BPS standard, requiring large buildings to report their annual energy and water usage and gradually reduce GHG emissions. Unlike other building carbon reduction approaches in New England, the City of Boston’s BPS program mandates participation (with third-party verification of data), provides several compliance pathways, establishes emissions standards based on both the size of and use of a building, and has a review board that oversees program implementation (six members of which are nominated by a community-based organization, and one member of which is reserved for the chair of the City Council’s Environmental Justice, Resilience, and Parks Committee). Violations of the city’s BPS program requirements can result in financial penalties, which are routed to a city fund supporting environmental justice and low-income populations. Like Vermont, Massachusetts is also in the process of developing a Clean Heat Standard.

Components of a BPS Framework

Data Collection

Immediately implementing a BPS policy can be challenging due to the need to collect data on building stock emissions to establish the emissions reductions standard. Policy makers can set emissions standards based on the size of a building, building type, or both, and to create emissions targets for buildings over the course of time. For example, the City of Boston began collecting building emissions data in 2013 but did not launch a “true” BEPS framework with enforcement mechanisms with carbon targets until 2021. The city was able to analyze the hard data that was reported over the prior decade (including how specific community groups and buildings are impacted, such as environmental justice populations, income-restricted housing, and houses of worship to establish their building stock emissions targets), accustom building owners to data reporting, and surface other community-specific needs (i.e., providing alternative compliance pathways for property owners, creating a repository for annually collected data, providing a retrofitting resources portal for building owners and tenants, and ensuring community voices are heard via their review board).

Compliance Pathways

Providing several compliance pathways to allow building owners to comply with building performance mandates is ideal, as the goal of BPS programs are to encourage retrofitting and building energy efficiency to decrease overall building stock emissions. D.C.’s BPS program, for example, provides both performance-based (requiring achievement of a numerical energy performance improvement target) and action-based (requiring actions that improve a building’s energy performance) compliance pathways. The D.C. BPS program also incorporates “safety nets” for building owners who encounter unforeseen difficulties in completing their compliance pathway, allowing for both short- and long-term extensions depending upon the circumstances; similarly, the City of Boston’s BPS program allows building owners to seek approval for an individualized compliance schedule or for a hardship compliance plan.

Advisory Entity

The creation of an advisory council, task force (the approach taken in D.C.); working group, committee or Review Board, as in Boston’s case, is beneficial for a number of reasons. Community members sitting on a BPS entity like this can advise the governmental agency on best practices with both implementing the program and communicating with residents and property owners. It is crucial that this advisory entity involves stakeholders, including those that represent low-and-moderate-income and environmental justice communities, to best serve and advocate for the public’s interest. The advisory entity will also be helpful to the enforcing governmental agency, as compliance with building emission reduction mandates cannot be achieved without the availability of energy consumption/emissions reduction resources for building owners, tenants, and contractors.

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    Katherine Lee Goyette

    Conservation Law Foundation

    Katherine Lee Goyette is a staff attorney with the Conservation Law Foundation in Boston, an environmental nonprofit organization that uses science-based legal advocacy in New England. She may be reached at [email protected].