Green Building Law Blog : Green Building Lawyer & Attorney : Shari Shapiro: Calliope Communications, LLC

There is chatter that the Clean Power Plan Final Rule will be released in early August, but also a strong effort to delay implementation until the various legal challenges are resolved. The stay could be imposed either judicially or legislatively. A bill passed the House and is currently pending in the Senate that would allow states to delay writing implementation plans until judicial review has concluded. A judicial stay could also be imposed. Given that the wheels of justice grind slowly, a stay could destroy the effectiveness of the CPP. Currently, the states' plans are due in 2016. If a stay is in place, the plans would be potentially delayed until after the next presidential election. The next president may or may not support the CPP, and could abandon it altogether. Even if executive support does not wane, the position of some states in complying with the law may. For example, in Pennsylvania, Republican Governor Tom Corbett was a leading voice opposing the CPP, and Pennsylvania passed a law requiring legislative approval of a CPP compliance plan. In 2014, however, Democratic Governor Tom Wolf was elected, and he is very supportive of the CPP, and Pennsylvania is developing its plan to comply. A change in state legislature or administrative make-up could easily go the other way. Moreover, the emissions reductions are measured at 2020 and 2030. If plans are delayed until after 2016, states will have a difficult, if not impossible, task of meeting the 30% emissions reduction target by the current dates. The rule compliance dates would have to shift, which could open up the CPP to more changes and further delays. The stay strategy is quite clever. Inertia is a powerful force. Once plans are submitted and underway, it will be much harder to derail the entire CPP framework. Economic incentives will change, and industries/jobs will grow around the new areas of investment. So, if a stay is put in place (most likely a judicial stay, because it is unlikely that Obama would sign a legislative stay), the CPP will face an uncertain future.

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 Both Michigan v. EPA and Obergefell v. Hodges demonstrate a key learning about governance in America—context matters as much as, or perhaps more, than legal authority.

In 1998, the Environmental Protection Agency (EPA) decided to regulate mercury emissions. EPA apparently did not do a formal cost-benefit analysis (CBA) comparing the benefits to health, etc. with the economic impact on the power industry. However, EPA did submit a “Regulatory Impact Analysis” that estimated the regulation would cost the power industry $9.6 billion per year, for an apparently meager benefit of $4-$6 million per year.

When the mercury rule was challenged on the grounds that EPA had failed to perform a CBA, EPA argued that it was not required to do a CBA under the Clean Air Act, and that EPA did many cost-benefit analyses when implementing the regulation.

Justice Scalia, writing for the majority, held that EPA was obligated to do a CBA in deciding whether to regulate mercury emissions, and therefore the mercury regulations were invalid despite subsequent CBAs.

The LGBT community fought for years ahead of and during the same-sex marriage movement to build public approval of its cause, and to marshal factual evidence to neutralize its opposition’s arguments. Once the Obergefell reached the Supreme Court, the justices were faced with unassailable facts, and to take the transformed social context into consideration. In other words, same-sex marriage became a “no brainer.”

By contrast, in Michigan, EPA appears to have embarked on a battle with the coal industry without taking the regulatory context into consideration. EPA had to have known that the power industry was going to attack the EPA on the cost of its regulations. Without robust evidence to counteract that argument, the EPA left itself open to just the type of challenge brought in Michigan. Even if the EPA were under no obligation to do a CBA, it would have been wise to shore up its defenses from such an obvious line of attack, particularly when the Regulatory Impact Analysis showed a wide disparity in costs and benefits.

Further, given the regulatory environment where the public is regularly exposed to discussion (right or wrong) about the “excessive” costs of regulation. Advancing an argument that EPA does not have to do a cost-benefit analysis in deciding to regulate would not resonate with the public, and did not resonate with the Court.

The scope of regulatory authority is not the only thing agencies need to consider when regulating. The political and social environment is as important, or perhaps more so, than the jurisdictional boundaries of the law.

The EPA should take this education into the roll-out of the Clean Power Plan. EPA must have a sharp eye to measuring and articulating the costs and benefits of the state plans to reduce carbon emissions. In addition, EPA needs to radically ramp up its communications strategy, so that when the Supreme Court has to rule on the implementation of the Clean Power Plan, it’s a “no brainer.” 

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There is a war on building codes across the United States, and Pennsylvania is ground zero.

After years of regular building code updates, a law was passed in 2011 (Act 1) at the urging of the Pennsylvania Builders Association to make it essentially impossible for building codes to be updated. 

Last Thursday, the Clean Air Council decided to take action, filing suit against the Commonwealth for its failure to adopt both the 2012 and 2015 codes, and challenging Act 1. The Petition in Commonwealth Court is available here, with the extensive exhibits available here. 

In summary, the suit alleges that the Pennsylvania Review and Advisory Council (RAC), the 19 member body charged with reviewing and adopting building codes rejected the 2015 codes for no reason and against the recommendations of its own technical review subcommittees. It also alleges that Act 1 violated the Pennsylvania and Federal constitutions by creating a process that makes code adoption impossible.

Pennsylvania is an example of a nationwide trend. Starting with the 2009 codes, homebuilders associations in many states have sought to delay or derail code updates by taking over administrative building code review councils and lobbying for draconian legislation. North Carolina is another example, where the codes are now on a 6 year cycle, and more legislation is in the works (HB255) to make adoption even more difficult. 

The implications for the built environment in terms of safety, energy efficiency, cost-effectiveness and resilience from natural disaster damage are massive. 

Of course, up-to-date codes save lives. Recently, a 2 year old child fell out of a window that was not built to the current codes. Had the current codes been in effect, the window would not have been able to open as far, preventing this tragedy. 

With natural disasters on the rise, making the built environment more resilient is critical. The Federal Emergency Management Agency (FEMA) determined that $1 spent on preparedness for natural disasters will save $4 in restoration costs. FEMA has also said that up-to-date building codes are among the most cost-effective mitigation measures. 

The 2015 codes include many flood-related provisions, including changes to the 2015 International Residential Code supported by FEMA’s Superstorm Sandy analysis report.

Up-to-date codes save consumers money and benefit the environment through greater energy efficiency. The 2015 codes are 15% more energy efficient than the 2009 codes, and 30% more energy efficient than the 2006 codes. The Department of Energy estimates that consumers will save between $4000-$24,000 over the course of a 30 year mortgage (2009 compared to 2015 codes), as well as reducing air pollution and greenhouse gas emissions. Simple payback will be less than two years. 

The health of the United State's manufacturing sector and the safe and effective installation of new technology also requires regular building code updates. 

Investment:  The investment decisions of electrical manufacturing companies like Eaton, Tyco, Lutron and others in capital equipment, machinery, and jobs are often based upon nationwide adoption of codes.  When those codes are not adopted, or adoption is delayed, decisions to make those investments and hire employees are negatively impacted. 

       Risk management:  Installation codes and product standards work hand in hand to ensure public safety and ensure that products perform in the manner in which the manufacture intends and customer expects.  Not adopting the latest code puts us at risk, first responders at risk, engineers at risk, distributors at risk, general contractors, electrical contractors and citizens at risk.  Liability can be increased for all of the above if up-to-date codes are not adopted.  These companies build products to meet new code requirements, and expect the equipment to be installed in that manner across the United States. 

 Innovation:  New technology, like ground source heat exchange, high-pressure decorative exterior grade compact laminates, dynamic glazing, solar energy systems, electric vehicle charging stations and many others have been gaining traction over the past few years.  Up-to-date codes provide guidance on the safe and effective installation of these new products.  For example, the 2015 codes have updated roofing requirements for installation, wind resistance, fire classification and others.  These changes will protect the lives of homeowners and first responders alike. 

The Clean Air Council chose to take this issue head on, and I will keep you updated on the progress. 

Image courtesy of kdshutterman at FreeDigitalPhotos.net

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The Home and Garden Channel (HGTV) is the top rated cable network on the weekends.  At the end of every remodeling show on HGTV is the big reveal, dramatic "before and after" footage of the transformation of the kitchen or bedroom.

How does this relate to EPA?  On my Muse of Eloquence blog (which deals more generally with policy and communications issues), I discussed the Democratic losses last week, diagnosing it as a communications problem, not a policy problem.  

This is doubly true with respect to the Environmental Protection Agency.  Specifically, the Environmental Protection Agency needs to improve its brand image, not just among young voters (or, non-voters, as is more accurate), but with voters that turn out on a regular basis.  To do so, it must make the impact of environmental regulation personal.

Fortunately, the EPA has a lot of "before and after" images to use in its advertising campaign.  For example, above is a picture of air pollution in Los Angeles in 1968, before the Clean Air Act was passed in 1970, and 2005, 35 years later (Image courtesy of the Cooperative Institute for Research in Environmental Sciences (CIRES) at the University of Colorado Boulder).

CIRES conducted a study on what caused the reduction in air pollution.  Although population has tripled in LA since 1968, according to lead study author Ilana Pollack: 

LA’s air has lost a lot of its ‘sting,' Our study shows exactly how that happened, and confirms that California’s policies to control emissions have worked as intended.

"Before and after" footage is compelling because, by viewing the pictures, we are experiencing the change personally.  The EPA (and other Federal agencies, for that matter) needs to reframe the debate by spending more (a LOT more) of their budgets on advertising showing the American people the transformative impact that regulation has had on everyday life.  We await the big reveal in 2016.  

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Happy Monday!  

As I posted earlier, in Murray, et al v. EPA , plaintiff Murray Energy Corporation seeks to enjoin EPA's Clean Power Plan rule even before it has been issued as a Final Rule.  The Clean Power Plan proposes to regulate the carbon emissions of existing power plants under the Clean Air Act. 

 Last week, the states of New York, State of Connecticut, State of Delaware, State of Maine, State of New Mexico, State of Oregon, State of Rhode Island, State of Vermont, State of Washington, Commonwealth of Massachusetts, District of Columbia filed notice of their intention to participate as amicus curiae 

In June, Alabama, Kentucky, Oklahoma, South Carolina, West Virginia, Alaska, Nebraska, Ohio and Wyoming also filed an amicus brief in this case.

Assuming that the northeastern states support the Clean Power Plan, it sets up a sort of "Blue v. Grey over Green" battle, with the western states thrown in as well.   

There was also an interesting decision in the D.C. Circuit last week, lifting a stay on the EPA's Cross-Border Pollution Rule.  But, additional issues remain to be resolved in the DC Circuit case, so there will likely be more action on this critical rule.    

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The Federal government has long been a leader in constructing green buildings, and LEED has been the Federal standard of choice. The Department of Energy issued a final rule updating its recommended certification standards and levels for all Federal buildings on October 14, 2014. 

The Final Rule does not tell Agencies which rating system to use.  Rather, if the Agency chooses to use a rating system, such system must meet the following characteristics:

1. Allow assessors and auditors to independently verify the criteria and measurement metrics of the system;
2. Be developed by a certification organization that (i) provides an opportunity for public comment on the system, (ii) provides an opportunity for development and revision of the system through a consensus-based process;
3. Be nationally recognized within the building industry;
4. Be subject to periodic evaluation and assessment of the environmental and energy benefits that result under the rating system; and 
5. Include a verification system for post occupancy assessment of the rated buildings to demonstrate continued energy and water savings at least every four years after initial occupancy. 

Sounds a lot like LEED or Green Globes to me, so unless something else comes into the marketplace, Federal buildings are likely to use the LEED standard.

The DOE's rule is based, at least in part, on a General Services Administration (GSA) report on green building rating systems issued on October 25, 2013, and available here.  The GSA recommended LEED-2009 Silver or 2 Green Globes v 2010.  It also contained a variety of other recommendations, including keeping current with the rating systems as they evolve. 

The GSA's recommendation is an interesting one for two reasons:

(1) the GSA requires its buildings to be LEED Gold, and

(2) the recommendation was not supplemented to recommend LEED v4, even though the GSA did evaluate LEED v4. 

Since the Final Rule does not have a recommended rating system, and most agencies are unlikely to parse whether a particular rating system other than LEED complies with these characteristics, the GSA's recommendations are likely to become the Federal default.  

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 I was at a presentation by the Department of Energy on Wednesday (hosted by the Northeast Energy Efficiency Partnerships) where they reviewed the status of their Home Energy Score program.  Like the fuel economy stickers on cars, these systems aim to create easy to understand energy ratings for buildings. 

The idea is grounded in basic human behavior--if people know how much energy a building uses and how much money they can save, they will purchase more energy efficient homes and/or invest in energy efficient retrofits.  Several cities have begun to harness the power of energy transparency for commercial buildings through benchmarking laws.  The Institute for Market Transformation has a map of jurisdictions with these laws here. 

However, while long called for, this type of program has not really gotten off the ground for small commercial or residential buildings.  The resistance has been strongest from the National Association of Realtors, who believe that such information would prejudice buyers against certain houses. The National Association of Realtors' position on energy efficiency and disclosure is available here.

There are really only two ways to overcome this resistance--make the disclosures mandatory as part of the owner's disclosures or to make them so common that purchasers demand them. 

Interestingly, some states, like Connecticut and Vermont, are considering incorporating these ratings into their utility energy efficiency programs.  Perhaps this is a way to get a sufficient number of houses benchmarked that it becomes a commonplace part of residential transactions.  

It would be even more interesting if states made residential benchmarking part of their programs under the new Clean Power Plan (the existing power plant carbon emissions rule).  That would help to reach the "tipping point" for residential energy use disclosure. 

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As the reaction to EPA's Clean Carbon Plan has demonstrated in living color, environmental regulation is tough in the United States in 2014.  For many years, there has been many efforts to use innovative tools to promote adoption and enforcement of energy efficient building codes.  I think there is a lot to learn from these efforts, as I discuss in my piece at RegBlog, the blog of the University of Pennsylvania Program on Regulation.  

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Welcome back from vacation.  To ease you back into the workday routine, I want to share a post I wrote for RegBlog, the blog of the University of Pennsylvania Program on Regulation, about regulating sharing economy companies like Uber, Lyft and Airbnb. 

In short, the most efficient route to regulating these companies is tweaking existing regulatory structures to accommodate these new models.  This has been the model for years in the construction industry--residential construction is regulated under the same scheme as commercial construction, but with different requirements. 

You can read the whole post here...

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There have been memorable social marketing campaigns over the years--Smokey the Bear, the sizzling egg that is your brain on drugs and the coining of “Obamacare” come to mind. Now Grist reports that Martin Glaser, the advertising genius that came up with the "I Heart New York" logo, has turned his communications brilliance to Climate Change.  

As I said in my earlier post on the importance of communications to public policy, Madison-avenue style marketing should not be reserved for toothpaste and cell phone plans.  Policy, like anything else, needs to be sold to the public in order to be accepted and effective.

The slogan is "It's not warming.  It's dying." You can see the campaign here.  I like the slogan, it captures the urgency.  But more than the slogan, I like the graphic of a green circle being overcome by a black shadow.  I think it is quite effective. 

If Madison Avenue can get Americans to believe that 4 out of 5 dentists agree that sugar free gum is good for you, then hopefully Martin Glaser can improve Yale's survey finding that "only one in three Americans thinks people in the U.S. are being harmed “right now” by global warming in the United States." 

I am giving away a "It's Not Warming, It's Dying" to the first 5 people that Tweet this post! 

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There have been memorable social marketing campaigns over the years--Smokey the Bear, the sizzling egg that is your brain on drugs and the coining of “Obamacare” come to mind. Now Grist reports that Martin Glaser, the advertising genius that came up with the "I Heart New York" logo, has turned his communications brilliance to Climate Change.  

As I said in my earlier post on the importance of communications to public policy, Madison-avenue style marketing should not be reserved for toothpaste and cell phone plans.  Policy, like anything else, needs to be sold to the public in order to be accepted and effective.

The slogan is "It's not warming.  It's dying." You can see the campaign here.  I like the slogan, it captures the urgency.  But more than the slogan, I like the graphic of a green circle being overcome by a black shadow.  I think it is quite effective. 

If Madison Avenue can get Americans to believe that 4 out of 5 dentists agree that sugar free gum is good for you, then hopefully Martin Glaser can improve Yale's survey finding that "only one in three Americans thinks people in the U.S. are being harmed “right now” by global warming in the United States." 

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It was inevitable that EPA's Clean Power Plan, regulating carbon emissions from existing power plants was going to generate law suits.  Even if the suits are ultimately unsuccessful, an injunction against the Plan's adoption or implementation may slow or stop the EPA's ability to move forward for years. The wheels of justice grind slowly, after all.  

The first of these actions was filed on June 18 by Murray Energy, the largest privately owned coal company in the country (the complaint can be downloaded here). Murray alleged that EPA had exceeded its statutory authority under the Clean Air Act, and asked the D.C. Circuit Court of Appeals to stop the EPA from enacting the Clean Power Plan regulation.  A week or so later nine states — West Virginia, Wyoming, South Carolina, Ohio, Nebraska, Oklahoma, Alaska, Alabama, and Kentucky —petitioned to join the Murray Energy suit.

In essence, Murray is claiming that EPA and the states cannot double regulate power plants.  Certain specific "Hazardous Air Pollutants" from power plants are already regulated at the Federal level under Section 112 of the CAA.  Murray's argument is that Section 111(d), which allows state plans for regulation of emissions, only applies to sources that are not regulated under 112.  to interpret it otherwise would be to allow double, and potentially conflicting, regulation of the same sources.   

I wish I could say that the suit has no merit, but I cannot.  It is a close question, which is well analyzed here by Robert Nordhaus and Ilan Gutherz at the Environmental Law Institute.  My opinion is that EPA's authority to regulate will be upheld.  

However, the recent Supreme Court decision in Utility Regulatory Group v. EPA makes me wonder whether off-site energy efficiency programs and cap-and-trade protocols will be allowed as control technologies.  In the Utility Regulatory Group decision, Scalia all but invited a follow-up suit on the control technologies EPA chooses to implement its regulations, particularly energy efficiency:

We acknowledge the potential for greenhouse-gas BACT to lead to an unreasonable and unanticipated degree of regulation, and our decision should not be taken as an endorsement of all aspects of EPA’s current approach, no ras a free rein for any future regulatory application of BACT in this distinct context.

Regardless of the outcome of the suit, it simply should not be this hard to regular carbon.  EPA has been forced to take a challenging path to regulation because Congress has refused to act directly on this critical issue.  

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 I want to pass along three interesting articles I have read over the past day or so about coal's decline (or alleged decline) in the United States totally unrelated to EPA's recent proposed rule on carbon emissions from existing power plants. Here are the takeaways:

1. From former Sierra Club CEO Carl Pope at EcoWatch:  Hundreds of years of mining existing coal seams has made coal harder and more expensive to extract.
2. From Berkeley Professor Meredith Fowley at The Energy Collective: The low price of natural gas and limited opportunities for exports (at least not yet) has made it economically attractive to switch fuel sources. This article has some very nice graphs about the decline of coal as a fuel source. 
3. From Rebecca Leber at the New Republic:  Retrospective of pro-coal ads shows that coal has been predicting its own demise for over 40 years. I especially love the 1976 Coal Ad about the OPEC energy embargo. 

Reading these articles reminds me a bit of the scene in Monty Python's Holy Grail about the bubonic plague.  Coal may be dying, but its not dead yet. 

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What if there was a technology that had a 20 year track record of saving 4.8 quads of energy and 41 million tons of carbon, while saving consumers more than $44 billion over the past 20 years, and was anticipated to save consumers up to $230 billion on their utility bills, 53 quads of energy and 3,995 million tons of carbon from 2012-2040? 

What if the return on that technology was $400:$1--for every $1 of government program money spent, the return in cost savings was $400?

You would think that the EPA would have that technology at the top of its list of ways for states to reduce energy use and carbon emissions to comply with its new Clean Power Plan regulations. Instead, the EPA's response was "meh:"  

[Building energy codes*] might have substantial impact[], and the EPA does not want to discourage their implementation in state plans, but they might require development of appropriate quantification, monitoring, and verification protocols. The EPA and its federal partners intend to discuss the development of appropriate EM&V protocols for such measures with states in the coming years.

Federal Register, Vol. 79, No. 117, Wednesday, June 18, 2014 at 34921.

I don't know why the EPA seems to have a thing against energy codes.  Perhaps it is that energy codes do not require cool new technology like carbon capture.  They do not require states to implement new programs or hire new personnel, because all 50 states already have building codes in place, either at the state or municipal level.  Or maybe it is because when you go to a cocktail party and start to talk about building energy codes, people feel compelled to refill their plate of cheez-its.       

But what I do know is that the EPA's concerns about building energy codes seem to run contrary to recent scholarship and state experience with building energy code programs.  

Two recent publications—one from the Pacific Northwest National Laboratory and a joint study by the Northeast Energy Efficiency Partnerships, the Edison Foundation and the Institute for Market Transformation—have protocols for measuring and verifying building energy code program savings.  In addition, over 10 states have included building energy code programs in their utility energy efficiency programs, many of which include M&V protocols.  

Even if the EPA is correct that there is some uncertainty and variability in M&V of building energy codes, the evidence of energy and carbon reductions for other compliance pathways that EPA supports, like carbon capture and storage, are much, much less certain.  

You have until October 16, 2014 to submit a comment on the proposed rule, letting EPA know that building energy codes should be at the top of its list of compliance paths, not the bottom.  

* Building energy codes are  minimum  standards for energy efficient design and construction for new and renovated buildings.  Like all construction codes, building energy codes are adopted as law by states and municipalities, and enforced by building code officials.          

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