Covered buildings include:

• any building that exceeds 50,000 gross square feet (“gsf”);
• two or more buildings on the same tax lot that together exceed 100,000 gsf; or
• two or more condominium buildings that are governed by the same board of managers and that together exceed 100,000 gsf.

Square footage is determined based on the records of the New York City Department of Finance.  Covered buildings should have received a notice from the Department of Finance in December 2010.  In addition, the City has published a list of the buildings it believes to be subject to the Benchmarking Law.

To comply with the Benchmarking Law, owners of covered buildings must solicit information on energy usage from non-residential tenants, but are not required to do so for residential tenants.  Benchmarking of water use is not required unless the building was equipped with automatic meter reading equipment by the New York City Department of Environmental Protection for the entirety of the previous calendar year.

Benchmarking reports must be submitted to the City electronically using the U.S. Environmental Protection Agency’s (“EPA”) Portfolio Manager Tool.  Owners of multiple buildings should pay special attention to EPA’s instructions before entering information to ensure that reports are not overwritten by later entries.

The Benchmarking Law is part of New York City’s Greener, Greater Buildings Plan.  A component of the Citywide environmental initiative PlanNYC2030, the Greener, Greater Buildings Plan strives to reduce greenhouse gas emissions by 30% by 2030.

For more information on the Benchmarking Law, please contact SPR partner Dan Chorost.  To learn more about green building trends beyond New York City, please see Dan’s May 2011 article on this topic.

The article, available here in pdf, describes the origin and purpose of the green building movement, summarizes the voluntary LEED and ENERGY STAR programs, and notes their connection to the ongoing greening of building codes nationwide.  Chorost argues that the combination of voluntary programs and mandates means that performance demands for green buildings are gradually increasing, with LEED and ENERGY STAR setting a higher “ceiling” for performance while building codes create a higher “floor.”  Building owners that comply with LEED or ENERGY STAR may reap various direct and indirect benefits in various jurisdictions, including expedited permitting, waived fees, and zoning bonuses or allowances. 

For private building owners, perhaps the most notable development discussed in the article is the passage of new laws in leading jurisdictions requiring that existing buildings conduct audits and retrocommission their energy systems.  These laws generally require owners of certain large buildings to quantify their energy use, report it, and identify and even implement energy-efficiency upgrades that would result in net savings over time.  For example, in New York City, a new law requires owners of buildings over a certain size to audit and report on their energy use and to retrocommission existing building systems to improve efficiency.  With similar laws being enacted in other leading jurisdictions, this newest green legal trend will continue to accelerate and will become the norm in jurisdictions nationwide. 

•  Read the full article here.

Unlike New York’s State Environmental Quality Review Act (“SEQRA”), NEPA imposes no substantive requirement to mitigate a project’s adverse environmental impacts.  When a federal action would have significant adverse impacts, however, the lead agency must prepare an Environmental Impact Statement (“EIS”) which analyzes, among other subjects, the “means to mitigate” those impacts.[2] More commonly, an applicant will incorporate mitigation measures into its project design in order to avoid triggering NEPA’s EIS requirements, resulting in a Finding of No Significant Impact (“FONSI”).

The new Guidance endorses the use of these “mitigated FONSI[s]” when accompanied by “enforceable mitigation measures.”[3] However, the Guidance warns that “failure to document and monitor mitigation may … undermine the integrity of the NEPA review.”[4] Accordingly, CEQ recommends a series of steps to ensure that mitigation commitments are expressly stated and adhered to, and calls upon individual agencies to supplement its Guidance with their own procedures that make “relevant funding, permitting, or other agency approvals … conditional on performance of mitigation commitments.”[5]

First, the Guidance advocates the identification of specific mitigation measures within an EIS or Environmental Assessment (“EA”), including measurable performance standards or expected results.  To the extent that federal funding is required to implement these mitigation commitments, NEPA documentation must analyze the likelihood of whether or not such funds are expected to be available throughout the life of the project.[6]

For certain “important cases” where mitigation eliminates the need for an EIS, the Guidance calls for monitoring of a project’s mitigation commitments after its approval.  Not all mitigated FONSIs require formal monitoring, and the Guidance does not provide a definition of “important cases,” relying on agencies to use their judgment in making such determinations.[7] The party who will be performing the mitigation is responsible for developing and implementing the monitoring program, drawing upon public input and informing the public of the results and progress of such monitoring where appropriate.[8]

Finally, the Guidance discusses remedies for ineffective or non-implemented mitigation measures.  While NEPA does not require mitigation of adverse impacts, mitigation failures may give rise to adverse impacts which were not considered during the initial review process, triggering the need for an EIS (in the case of a mitigated FONSI) or supplemental EIS (if an EIS was already prepared) in the event that additional federal approvals or actions are anticipated.[9] Even when supplemental documentation is not appropriate, agencies are encouraged to incorporate monitoring results into future NEPA analyses, so as to avoid relying upon mitigation measures that have proven ineffective in the past.[10]

With this document, CEQ has now finalized two of the three NEPA Guidance documents released in draft form last year.  The last in the series – Draft NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gasses[11] – is expected to be finalized later this year.

[1] See CEQ, Final Guidance for Federal Departments and Agencies on the Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact (“Mitigation Guidance”), Jan. 14, 2011.

[2] See, e.g., 40 C.F.R. § 1502.16(h).

[3] Mitigation Guidance at 7, n. 18.  While mitigated FONSIs have long been accepted as a matter of practice, prior CEQ Guidance from 1981 had cast doubt upon their legitimacy under NEPA.  Id.

[4] Id. at 2.

[5] Id. at 8.

[6] Id. at 9.  In some cases, failure to provide such disclosure could result in delays and preparation of a supplemental EIS should the necessary funding later become unavailable.  Id.

[7] Id. at 10.

[8] Id. at 12.

[9] Id. at 15.

[10] Id.

[11] See CEQ, Draft NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas Emissions, Feb. 18, 2010.

The Draft Report contains nine findings concerning the projected impacts of sea level rise and 14 policy recommendations for state legislators and executive agencies to prepare for and protect against those risks.  This post focuses on the recommendations related to the State Environmental Quality Review Act (“SEQRA”), the New York law requiring state and local governments to consider the potential significant adverse environmental impacts of their actions.

The SEQRA recommendations primarily relate to actions undertaken within newly-proposed “coastal risk management zones,” which would require an amendment to SEQRA or its implementing regulations.  The Task Force suggests that such zones should be established and include those areas that FEMA has already identified as “coastal high hazard areas” or “areas of moderate wave action” on Flood Insurance Rate Maps (Draft Report, at 54).

SEQRA regulations currently categorize actions as Type I (those that presumptively have significant adverse impacts and are more likely to require preparation of a full Environmental Impact Statement), Type II (those determined not to have significant adverse impact or otherwise precluded from SEQRA review) and Unlisted.  Under one proposal, the Task Force recommends that all Unlisted Actions undertaken within a coastal risk management zone be added to the Type I list (Draft Report at 61).  Alternatively, the Draft Report suggests amending the criteria for environmental significance in the SEQRA regulations to expressly incorporate sea-level rise related impacts (Draft Report at 61; 6 NYCRR 617.7(c)).

Neither of these recommendations, however, addresses the technical issues of how the environmental significance of sea level rise on a proposed project should be measured.  Moreover, the classification of all actions occurring within a coastal risk management zone as Type 1 may be inconsistent with existing SEQRA guidance which anticipates that the significance of sea level rise and other global warming impacts on a project would be assessed “on a case-by-case basis” — with no bright line test imposed based on project location.[1] This recommendation could also sweep in minor discretionary actions, such as wetland permits for single lots, that are not the type or scale of government action typically considered Type I.

Finally, the Task Force makes a commonsense recommendation that DEC’s short and long Environmental Assessment Forms (“EAF”) – used to determine the potential significance of an action’s environmental impacts – be revised to “require[e] an evaluation of risks to and from the project based on the risk of sea level rise and coastal hazards … and other related effects of sea level rise” (Draft Report at 61).  The long EAF currently asks, “Is [the proposed] project or any portion of project located in a 100 year flood plain,” though sea level rise is projected to expand the areas of New York traditionally considered at risk of serious flooding.

For additional information on the consideration of climate-related impacts under SEQRA or the National Environmental Policy Act (“NEPA”), contact Steven Russo.

[1] DEC, Assessing Energy Use and Greenhouse Gas Emissions in Environmental Impact Statements, July 15, 2009, at 4, 5.

Some notable features of the LEED-ND system include:

• Each project must have at least one certified green building;
• A project’s site must be contiguous property, but may include “conclaves of non-conforming properties” that may be exempt from LEED-ND requirements;
• Project sponsors should have control over or title to 50% or more of the project land area.

Projects are evaluated based on a number of prerequisites and credits, earned by incorporating design elements which are grouped by category, including:

• Smart location and linkage – relates to transportation, location, and land preservation;
• Neighborhood pattern & design – relates to community character, mix of uses, and walkability;
• Green infrastructure and buildings – examines building design and construction with regard to energy and water use, and sustainable best practices;
• Innovation and design process – grants credits for “exemplary and innovative” performance, beyond existing credit structures;
• Regional priority – allows credits unique to a project’s local environmental priorities.

The LEED-ND certification process takes place in three stages:

• Stage 1 – conditional approval of plans, to enable projects to build local support;
• Stage 2 – pre-certified plans, intended for projects that have received necessary permits or are under construction, and may assist in securing funding or tenants;
• Stage 3 – to be formally certified projects must have completed construction, and have achieved all prerequisites and credits sought in the first two stages of review, subject to any intervening changes in the LEED-ND system.

Generally LEED-ND applies to newly-constructed projects, but substantial renovations of 50% or more of existing square footage may allow existing neighborhoods to apply for certification.

Implementing LEED-ND may raise a series of legal issues, because the rating system operates at a scale that has traditionally been governed by zoning laws and municipal comprehensive plans.  The USGBC warns that LEED-ND should not be used a substitute for comprehensive planning, but project applicants and municipalities should be aware that implementing LEED-ND may itself trigger the need for revisions to a municipal plan or zoning code.  Some of the potential issues that LEED-ND implementation may face include:

• Project applicants and municipalities need to assess the consistency of existing zoning with LEED-ND requirements.  Qualifying for credits based on mixed-use neighborhood character may be rendered impossible by pre-existing single-use zoning.
• Municipalities wishing to mandate compliance with LEED-ND may create the unintended consequence of rendering significant portions of land undevelopable.  This could expose a government to potential litigation, including takings claims.
• Any revisions to zoning codes to enable use of LEED-ND would require environmental review as appropriate, and should be assessed for consistency with the applicable comprehensive plan for consistency.  See, e.g., NY Town Law § 272-a(c)(11) (requiring that “[a]ll town land use regulations must be in accordance  with  a  comprehensive  plan adopted pursuant to this section”).
• Site-specific rezonings to enable LEED-ND—even on large parcels—may face litigation risk in the form of spot-zoning claims.
• Large-scale projects face a risk of the LEED-ND system itself changing over time.  Applicants to the USGBC should carefully note that projects are not grandfathered to LEED-ND as it existed at the time of its original application.  Rather, at each new stage of review a project may be required to comply with intervening changes in LEED-ND credits and prerequisites.

One recent example of municipal incorporation of LEED-ND in the planning process is the Willets Point Development Plan (the “Willets Point Plan”) proposed in northern Queens, New York,  where SPR is representing the City of New York and its Economic Development Corporation (“EDC”).  According to Final Generic Environmental Impact Statement published for the project, the Willets Point Plan envisions redevelopment of a current industrial area into a mixed-use neighborhood through an Urban Renewal Plan and a rezoning tailored to the Plan’s goals.  The EDC, which is sponsoring the project through acquisition of the land within the proposed development district and issuance of a Request for Proposals to potential developers, has developed an illustrative site plan designed to comply with current LEED-ND requirements, and intends to require the chosen development to achieve LEED-ND certification.

The draft identifies the major green concepts to be considered, which include reducing greenhouse gas (“GHG”) emissions, increasing energy efficiency, reducing waste and increasing recycling, and maximizing habitat value and creating habitat where possible.  In addition, DEC identifies specific techniques that could be employed to “green” a remedial option, such as utilizing clean diesel to reduce emissions, incorporating green building design and utilizing native vegetation to reduce water usage. DEC repeatedly emphasizes that concepts of green remediation cannot be used to justify the “no action” alternative or to support a less protective remedy.

Notably, for state-funded cleanups, DEC would now require the use of renewable energy and/or the purchase of renewable energy credits to offset 100% of the electricity required to implement a remedy.  For other remedial projects, DEC would “strongly encourage[e]” compliance with this requirement, unless a site-specific evaluation demonstrated that it was impracticable or favored an alternative green approach.

All remedial alternatives analysis and decision documents would be required to describe those green remediation principles considered in the remedy selection process.  In addition, such documents would now have to include an analysis of GHG emissions and options to minimize such emissions.  Final engineering reports would also need to include a discussion of the green remediation techniques utilized in the remedial program.

A copy of the proposed policy is available here (pdf).  DEC is accepting comments on the draft until April 30, 2010.

The draft model Code’s emphasis is on building performance, and includes a requirement for building system performance verification and building owner education to ensure that the best energy-efficient practices are followed.  It establishes minimum requirements related to conserving energy, natural resources, and materials, employing renewable energy technologies to improve indoor and outdoor air quality, and developing building operations and maintenance.  A sample ordinance is included for local governments to adopt.

The recently released New York City Greener Greater Buildings Plan, which included four energy conservation and efficiency bills signed by Mayor Bloomberg, may complement the Code.    However, the Code, once finalized and adopted, will likely provide a more expansive regulatory baseline for green construction.

The Code is open to public comment until May 14, and the final version is expected to be released in the beginning of 2012.  The initial public version may be used by jurisdictions nationally and internationally until the final version is published.

The Code, and directions on submitting comments, are available here.

• View all posts on Green Building & Energy Efficiency

The first of the four bills, Intro 476-A, requires private buildings that exceed 50,000 square feet and City buildings that exceed 10,000 square feet to track and asses their energy and water use by utilizing an internet “benchmarking tool” developed by the federal Environmental Protection Agency.  Energy and water use will be reported on an annual basis, and the City will make such information available to the public.

Intro 564-A amends the City’s administrative code to establish an energy conservation construction code for the City.  The new energy code sets energy performance standards for covered residential and commercial buildings and applies to all renovations to such buildings.  This legislation represents a more stringent approach than that of the New York State Energy Code, the standards of which apply to renovation projects only if such projects entail the replacement of at least fifty percent of a particular building system.

Intro 967-A amends the City’s administrative code to require the performance of energy efficiency audits and the submission of energy efficiency reports for buildings that exceed 50,000 square feet.  An energy audit must identify all reasonable energy efficiency and retrofit measures that would reduce energy use and the costs and savings of such measures.  Building owners must implement energy efficient maintenance practices prior to the filing of the energy efficiency report for their building.  Intro 967-A also amends the New York City Charter to require City buildings to implement those retrofits that have been recommended in the buildings’ energy audits that will pay for themselves in seven years in energy savings.

The fourth bill, Intro 973, calls for the upgrade of lighting systems in commercial buildings exceeding 50,000 square feet before 2025.  The legislation also requires that electrical consumption by certain commercial tenants be measured by sub-meters.

In addition to the new legislation, the City’s Greener, Greater Buildings Plan establishes a working group designed to assess green workforce training needs and a revolving loan fund to help finance energy efficient retrofits.

set forth a vision for a robust and innovative Clean Energy Economy that will stimulate investment, create jobs, and meet the energy needs of residents and businesses over its 10-year planning horizon. To that end, the Plan provides the framework within which the State will reliably meet its future energy needs in a cost-effective and sustainable manner, establishes policy objectives to guide State agencies and authorities as they address energy-related issues, and sets forth strategies and recommendations to achieve these objectives.

The draft plan includes assessments on energy demand, price, and efficiency; renewable energy; electricity resources, markets and modeling; natural gas; petroleum; and coal.   Issue briefs are also available on topics including energy infrastructure, siting of new energy infrastructure, environmental justice, climate change, and environmental impacts of energy systems.

Public hearings will be held between August 18 and September 26 on the plan.  Comments may be submitted until October 9, 2009, and may be submitted electronically.

The plan is available here, and more information on the State’s Climate Action Plan, ordered by Governor Paterson, is available here.  Read more below for additional detail on the Plan’s draft strategies and recommendations.

Some notable strategies and recommendations of the draft plan include:

• Produce, Deliver and Use Energy More Efficiently
  • Implement programs to achieve the State‟s goal of reducing electricity use by 15 percent below 2015 forecasts.
  • Update the State‟s Energy Code, and improve training and compliance initiatives.
  • Increase the efficiency of our electric system through expanded demand response programs, deployment of “Smart Grid” technologies, and real time pricing rate structures.
  • Implement alternative financing programs to fund energy efficiency retrofits.
• Support Development of In-State Energy Supplies
  • Create a tracking and trading system for renewable energy credits to foster the voluntary market for renewable energy purchases.
  • Encourage deployment of distributed generation (DG) through improved net metering laws.
  • Encourage development of the Marcellus Shale natural gas formation with environmental safeguards that are protective of water supplies and natural resources.
• Invest in Energy and Transportation Infrastructure
  • Enact a power plant siting law that provides for early and meaningful public participation with ample intervener funding, early identification of environmental justice concerns and a time limit for a decision.
  • Enact Carbon Capture and Sequestration legislation that will provide a siting process to guide the demonstration of this new and promising technology.
  • Support the upgrade and replacement of aging transmission and distribution infrastructure to maintain electric system reliability.
  • Amend Article VII of the Public Service Law (PSL), the transmission siting statute, to provide for intervenor funding to improve public participation.
• Stimulate Innovation in the Clean Energy Economy
  • Increase local demand for clean energy technologies through the State‟s clean energy programs.
  • Foster collaboration among academia, research and development organizations, national laboratories, and private businesses and industry to accelerate the commercialization of emerging clean energy technologies by New York-based firms.
  • Foster regional clusters of clean energy businesses and institutions.
• Engage Others in Achieving the State’s Policy Objectives
  • Amend the City, Town, Village, and General Municipal Laws to incorporate energy considerations in Comprehensive Plans.
  • Encourage local adoption of Smart Growth policies and strategies, and the adoption of local Climate Action Plans by providing State technical assistance and funding opportunities to local governments.
  • Encourage development and growth along existing mass transportation routes, i.e., transit oriented development.
  • Develop energy facility siting and permitting criteria that assess disproportionate health risks and environmental impacts on potential environmental justice areas.
  • Provide and enhance mechanisms for early, fair and meaningful public involvement with transparency in energy-related decisions.

SPR will track significant developments relating to the above recommendations and strategies as they evolve in the public comment process, through the ultimate adoption of the final State Energy Plan.

SPR has decades of experience in siting of energy infrastructure.  Contact us for assistance in evaluating the draft plan, commenting on its contents, or assessing its impacts on your business or organization.  Read more about SPR’s environmental practice areas, and see examples of our work.