Recent Developments in Legal Frameworks for Zero Emissions Buildings

Earlier this month, the US Department of Energy (DOE) introduced the inaugural National Definition of a Zero-Emissions Building. This definition is designed by the DOE to establish consistent, measurable, and standardized minimum criteria. It is intended for adoption by both public and private sectors to facilitate the transition of buildings towards zero emissions. The release of this definition follows closely after the DOE’s publication of the National Blueprint for the Buildings Sector in April. This Blueprint outlines strategies to achieve a 65% reduction in greenhouse gas emissions from US buildings by 2035, and a 90% reduction by 2050, compared to 2005 levels. The Blueprint also emphasizes goals of equity, affordability, and resilience. While the newly introduced definition is non-binding, it has the potential to influence future regulatory frameworks and industry standards as buildings progress towards decarbonization.

According to Hunton, importantly, DOE’s definition does not provide verification standards, and the agency will not itself certify whether a building meets the criteria under this definition. Instead, where an entity employs the definition, it should determine how the criteria must be documented and verified.

This federal definition of a zero emissions building was released against the backdrop of states and municipalities taking legislative action to require or encourage building decarbonization through building performance standards which limit energy use or emissions. In Maryland, for example, a 2022 law requires covered buildings (those over 35,000 square feet) to achieve net zero greenhouse gas emissions and energy use intensity standards by 2040, with an incremental target of achieving 20% reduction in net direct greenhouse gas emissions by 2030. New York City’s Local Law 97, sets emissions limits for buildings over 25,000 square feet in New York City, which covers around 50,000 buildings and 50% of the City’s building emissions. The compliance period began in January of 2024 and there are incrementally more stringent requirements for compliance over time. While emissions limits will not require any buildings to become zero emissions in the near term, all covered buildings must demonstrate compliance with an emissions factor of zero beginning in 2050. In Massachusetts, a 2022 law requires improved building efficiency and mandatory reporting of energy usage for buildings of a certain size. This law, combined with a grant program to assist with a transition to higher performance buildings, lays the groundwork for the state to promulgate net-zero building performance standards in the future.

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