By Marne Sussman
Within the past two years, two cities in the U.S. have passed ordinances mandating that existing buildings benchmark their energy usage. Benchmarking requires a building owner to report energy use data which can then be compared to data from buildings of a similar size and function and to past data from the same building. These ordinances push green building one step further than most municipal laws, by not only enforcing standards on new construction, but regulating existing buildings. As building stocks take a long time to turn over, regulating existing buildings’ energy usage is crucial to attacking the problem of climate change. This article takes a closer look at the two ordinances and some of the similarities and differences between them.
Washington, D.C. was the first city in the country to pass an energy benchmarking law. The Clean and Affordable Energy Act of 2008 requires that all buildings owned or operated by the District or any of its instrumentalities that are at least 10,000 square feet be energy benchmarked by 2009. Privately-owned non-residential buildings of at least 200,000 square feet must be benchmarked annually starting in 2010. The size threshold for privately-owned buildings drops by 50,000 square feet each year so that by 2013 all non-residential buildings of at least 50,000 square feet will require benchmarking.
New York City passed a benchmarking law in 2009 as part of the Greener, Greater Buildings Plan. This law requires that buildings larger than 10,000 square feet owned by the city or where the city regularly pays all or part of the annual energy bills, begin annual energy and water benchmarking by May 1, 2010. Covered buildings, defined as buildings more than 50,000 square feet, two or more buildings on the same tax lot that together exceed 100,000 square feet, or two or more buildings held in condominium form of ownership governed by the same board that together exceed 100,000 square feet, must benchmark their energy and water usage annually starting May 1, 2011.
Both laws require city-owned buildings to be benchmarked within a year of passage of the ordinance. D.C. allows a phase in period for privately-owned buildings, while New York is more stringent and requires that all buildings over 50,000 square feet are benchmarked two years after passage. D.C.’s phase in approach won’t accomplish this until five years after passage. In addition to requiring benchmarking sooner, the New York City law is more comprehensive because it includes residential as well as non-residential buildings and certain buildings that are less than 50,000 square feet on their own.
New York City’s law also requires more of the benchmarked buildings than D.C.’s in that it requires water benchmarking as well as energy benchmarking. However, benchmarking is only required for water usage for buildings for which the Department of Environmental Protection has equipped automatic meter reading equipment and the equipment has been in operation for the entire previous calendar year.
Both laws conduct benchmarking through the U.S. Environmental Protection Agency’s Portfolio Manager Tool, a free online benchmarking program that compares energy and water usage to past data from the building and to data from other buildings of similar sizes and uses. The New York City law encourages utility companies to upload energy usage data directly but does not require it. However, the New York City Department of Environmental Protection must directly upload information on all water usage at buildings equipped with automatic reading equipment.
Both laws also require public disclosure of energy usage. Under the D.C. law, the benchmark and Energy Star statements for energy performance of each District building must be made public via an online database within 60 days of being generated. Private buildings must have their information made public via the internet by January 1 of the year after benchmarking begins. The New York City law requires benchmarking data to be posted on the Internet no later than September 1, 2011 for city buildings, September 1, 2012 for non-residential buildings, and September 1, 2013 for residential buildings. Disclosed data in New York City will include the building’s energy utilization index (BTUs per square foot), the water use per square foot, the Energy Star rating comparing energy use with similar buildings, and a year-to-year comparison of the building’s benchmarked data.
New York City’s law is lengthier than D.C.’s and also covers issues of getting energy data from tenants, maintaining records, and violations that D.C.’s law does not mention. If a unit or other space in a covered building, other than a dwelling unit, is occupied by a tenant and that space is separately metered by a utility company, the owner must request info related to energy use from the tenant and the tenant must provide that information to the owner. The owner must request the data in January and the tenant must report it no later than February 15. The owner must also maintain such records as the department determines are necessary to carry out the purpose of the law, including energy and water bills and reports or forms received by tenants. Finally, failure to upload benchmarked data is a lesser violation of the building code and fees are imposed.
Both laws push the boundaries of green building regulations and are a step in the right direction for municipal laws dealing with climate change. Overall, the laws are similar, but New York City’s is more comprehensive and in-depth, requiring more buildings to comply with the benchmark regulations, requiring them to comply sooner, and requiring more data to be made public. Municipalities that are serious about doing their part to address climate change can look to these laws as an example of how to address energy usage in existing buildings and ultimately climate change.
 Clean and Affordable Energy Act of 2008, Title V, Sec. 501.