Cracking the Climate Code: Battle Raging Over Building Energy Standards

NAIOP Massachusetts remains committed to addressing the serious ramifications of climate change, and we look forward to working with policy makers to move forward practical, feasible initiatives. However NAIOP continues to oppose technologically unattainable and impracticable proposals. The below article, written by Andy Metzger, originally appeared in the online edition of CommonWealth Magazine on December 8, 2019.

An arcane state board, known to few outside the world of design and construction, is the setting of a furious clash the outcome of which could influence the amount of climate-curdling emissions that pour out of chimneys, as well as the future supply of housing in Massachusetts, where affordable homes are already scarce.

The Board of Building Regulation and Standards might seem an odd venue for the drama that has unfolded there. The BBRS adopts and administers the statewide building code and the building energy code, sets of rules that are important but would bore the average reader to tears. It is the domain of professionals who think in cubic feet, seismic loads, and kilowatt hours. Now, the problems of the world are before it.

While much attention has been focused on reducing emissions from power plants and cars, commercial, residential, and industrial buildings in Massachusetts collectively spew more greenhouse gases into the atmosphere than either the power or transportation sectors. Commercial and residential buildings in Massachusetts emit about as much harmful gas into the air as the entire transportation sector.

That’s leading activists like Dr. Gaurab Basu, a Somerville physician who says the climate crisis will ultimately produce a public health crisis of increased deaths and hospitalizations, to insert themselves into the byzantine world of building codes. “As a parent of two young children and as a physician, I’m deeply concerned about this. I realize that the crisis forces us to do things that feel uncomfortable, to be pushing at a scale that feels like it’s untenable, but that’s the situation we’re in,” Basu told the board at its November meeting.

Climate activists like Basu, who have paid careful heed to the dire warnings of the world’s scientists, have pressed the BBRS to put out a net-zero energy code. The idea is that under a more stringent code newly constructed and newly renovated buildings would produce virtually no greenhouse gases, notching a small but meaningful victory in the worldwide campaign to avoid a climate catastrophe. That could be accomplished with tighter construction, energy efficient appliances, on-site renewable energy generation such as solar roofs, or under certain circumstances, a financial arrangement to procure renewable power from off-site.

Real estate agents and some builders are strongly opposed to the net-zero campaign, arguing that piling new requirements on top of existing construction costs would grind development to a halt, squeezing home prices, and exacerbating the region’s affordable housing crisis.

“We encourage an energy-efficient code, but we need to go where it makes sense from a cost standpoint and a technology standpoint,” said Tamara Small, CEO of NAIOP Massachusetts, which represents commercial developers. “We may get there, but we’re not there yet.”

Because of the schedule for adopting new building codes in Massachusetts, which statutorily follows the issuance of the International Energy Conservation Code, the big decision over whether to include a net zero code in that update won’t come to a head for another couple years – probably 2021 at the earliest. But environmentalists and business interests have already begun to skirmish and jockey for position.

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Meanwhile, activists are making other plays at the local level to try to cut down on climate pollutants. In late November, Brookline’s town meeting adopted a bylaw to prohibit the installation of oil and gas pipes in new construction and renovations, which would give the market a big shove toward electrical appliances and home-heating systems. It was the first municipality to take that step. All town bylaws must undergo a review by the attorney general’s office to see whether they align with state laws and the constitution, so opponents still have a chance to kill the policy. Arlington town manager Adam Chapdelaine said on Twitter that depending on how the attorney general rules, he would be interested in trying the same sort of thing in his town.

From a global perspective, environmental initiatives undertaken so far have failed to slow – much less reverse – the output of greenhouse gas emissions into earth’s atmosphere. For the past decade, emissions have grown 1.5 percent annually, and emissions must drop sharply over the next decade to avoid the worst ravages of climate change, according to the latest United Nations report. The blight, disease and flooding that unchecked climate change will unleash is all the more reason, according to advocates, to take the necessary steps in Massachusetts to significantly reduce the amount of greenhouse gas that seeps out of our homes and workplaces.

BOARD MEETING SHOWDOWN

The Board of Building Regulation and Standards is nestled under several layers of government bureaucracy. It is contained within the Division of Professional Licensure, which is an agency of the Office of Consumer Affairs and Business Regulation, which is itself a component of the Executive Office of Housing and Economic Development, whose secretary, Mike Kennealy, serves at the pleasure of Gov. Charlie Baker.

The 11-member board is presided over by John Couture, who doubles as the town of Sutton’s building inspector. Couture, who decline an interview and said he doesn’t talk to any news reporters, will see his term come to an end December 31. Couture will remain on the board, which will elect its next chairperson, according to a spokesperson.

The BBRS holds its monthly meetings all over the state. When in Boston, it generally uses a conference room in a non-descript state office building across the Massachusetts Turnpike from Chinatown. That is where the board convened on a Tuesday in early November for a session where net-zero proponents and opponents each warned of a calamitous future.

Over the course of several hours, members of the public alternately pressed the board for stricter environmental standards to avoid a complete environmental collapse, or cautioned against rash action that could further balloon housing costs or threaten the chimney and fireplace industry. Couture and other board members listened respectfully to some of the testimony, but they were at times dismissive or skeptical of environmentalists pitching the net-zero idea.

Jacob Knowles, director of sustainable design at BR+A, a national engineering firm, told the board that net-zero building makes for cheaper and healthier living spaces, and his firm found that making buildings net-zero adds less than 1 percent to the construction costs. To buttress his case, Knowles unfurled a letter signed by roughly 1,500 people and 80 companies, including prominent architecture firms, calling for the development and adoption of a net-zero code.

“Take that with you,” Couture replied curtly, after Knowles displayed the letter on the table. “We don’t want your prop.”

Board members also occasionally debated with commenters, questioning the philosophical underpinnings of their advocacy.

“There are a lot of developers that will do the code minimum, period. Period. So we need to raise all boats,” argued Jim Stanislaski, an architect for the international firm Gensler, who supports creating a net-zero code. “And incentives are great; carrots are great. But we need to move out of the voluntary into the compulsory.”

To Michael McDowell, a board member and homebuilder, that sounded like an indictment of people’s intelligence.

“The more we regulate, the less we give citizens of Massachusetts an opportunity to make a choice,” McDowell said. “In other words, you’re almost saying to the citizens, ‘You’re too stupid to make the right choice so we’re going to make it for you. Congratulations.’”

Stanislaski protested that he wasn’t calling people stupid. Then Couture jumped in to question what would happen if the highest standards were used for structural integrity and fire protection requirements – as opposed to energy efficiency.

“If we started saying, you know what, ‘We think that we should have 200-pound roof-loads, just because it’s good,’” said Couture. “There are ramifications for that.”

To deal with these knotty issues, the board had tasked its Energy Advisory Committee – which is made up of other building professionals and engineers – to “show us what net-zero looks like,” according to Couture. But around the same time, the board changed the composition of that committee so that it tilts more toward the views of the construction industry. In October, the board decided to add three contractors to the advisory committee and remove spots designated for a utility representative, an indoor air quality expert, and an appliance expert.

To those hoping to push the state towards a net-zero code, the committee shakeup seemed part of a strategy to thwart that effort.

“It seems like a big shift to say, ‘Take off some of the energy experts and put on contractors,’” said Knowles in an interview. “At face value, that screams to me of trying to shift the whole dialogue towards a more conservative solution.”

A discussion about the shakeup raised hackles among board members during their November meeting when member Richard Crowley suggested that “people on the ground know more about what’s going on” than architects or engineers who rely on books.

“Just stop. Really stop,” board member Kerry Dietz, an architect, interjected. “It is insulting to those of us who are professionals.”

According to Couture, the shakeup was based on a directive from Division of Professional Licensure commissioner Diane Symonds, who wanted more input from “stakeholders.”

“Just because we added three contractors doesn’t mean we added three villains,” said Couture. “We added people that are actually building this stuff.”

Couture also expressed his irritation at an email circulated about the advisory committee issue that he said was “mean” and attacked the board’s integrity. Couture appeared to have been talking about a missive from the Massachusetts Climate Action Network encouraging people to attend the November meeting. While that email criticized the board’s changes to the advisory committee as a “big step backwards,” it did not suggest ulterior motives or make any overt attacks on the board’s integrity.

Advocates on both sides of the issue will have plenty of time to hone their arguments. Under a 2008 state law dubbed the Green Communities Act – which was one of Deval Patrick’s signature environmental accomplishments as governor – the state must meet or exceed the standards of the International Energy Conservation Code, which is developing an update for 2021. That would present the next obvious opportunity to push for a net-zero code.

WHAT WOULD NET-ZERO MEAN?

Net-zero construction is already happening in Massachusetts, and the principle of a net-zero code is pretty straightforward: eliminate the carbon footprint of buildings by enhancing their efficiency and using renewable energy sources for all power. But advocates are fuzzy on the details. As of November, only the American Institute of Architects had submitted a fleshed out proposal to the BBRS.

The AIA plan would give builders a couple of options to determine a building’s energy needs either through a formula or by measuring the building’s actual energy performance. Then the AIA plan would require a corresponding amount of renewable energy generation either installed on-site or procured off-site. The AIA net-zero plan would apply to new commercial, institutional, and mid-level or high-rise residential buildings.

There is one big complication with applying a net-zero standard to urban development. Residential towers and commercial skyscrapers don’t have enough space on their roofs to provide solar power to all the floors below.

“High rise is extremely challenging,” said Stanislaski, the architect who supports shifting to net-zero.

One irony is that high rise developments can help reduce carbon emissions in the transportation sector, especially if they are near transit, because they tend to make neighborhoods denser and more walkable.

It’s not impossible to build a net-zero skyscraper. Solar power and wind energy can be procured off-site, and under the current mix of government incentives, it can even be cheaper than using fossil fuels, according to Knowles, who acknowledged that a renewable energy requirement presents new risks for developers.

“They want to minimize risk, so if there is any potential volatility, they want to avoid that, but I don’t see how that supersedes the need to address climate change and minimize our carbon footprint,” Knowles said.

Small, the NAIOP Massachusetts CEO who represents commercial real estate developers, has a bleaker view on what sort of effects a net-zero standard could exert on the marketplace.

“When you then talk about adding on something that makes a building zero net-energy, it’s going to be cost-prohibitive, so nothing’s going to be built. The numbers simply don’t work. And I don’t think when we have a housing crisis that really is necessarily the best approach,” Small said. “I think we have to proceed with caution because the unintended consequences could literally be no new commercial office space, lab space, retail, multi-family, mixed-use, you name it.”

Other areas with high housing costs have pushed the construction industry towards net-zero standards. California has instituted new requirements and set goals to phase-in net-zero construction for new and existing buildings over the next decade. New York is taking a number of steps to encourage net-zero developments and retrofit existing buildings to make them more energy efficient.

Massachusetts has made significant strides in energy efficiency. For nearly a decade, the Bay State has earned top marks from the American Council for an Energy Efficient Economy for its policies, including the relatively stringent measures adopted by the BBRS.

But given the scale of threat posed by global warming, many believe more should be done, and Knowles said the changes needed in construction are well within reach.

“This is not pie-in-the-sky. This is not some sort of dream fantasy idea. This is something that we’re doing consistently now on large, complex urban and non-urban projects,” Knowles said. “I have not come across a project that cannot achieve these goals, and in every single case we’ve been able to prove it’s cost-effective.”

State Adopts New Energy Code

On Tuesday, the Board of Building Regulations & Standards (BBRS) voted to adopt the latest version of the International Energy Conservation Code (IECC), making Massachusetts one of the first states in the nation to have it take effect statewide. This change represents a 20% increase in energy efficiency over the current statewide energy code. Under the Green Communities Act, the Massachusetts state energy code must be updated within one year of any revision to the IECC, so there was a statutory requirement to adopt this code.

The IECC is widely recognized as one of the most energy efficient codes. There is no question there are significant costs and design impacts associated with this code change. The IECC 2012 is approximately equal to the energy efficiency requirements of the stretch energy code, now in place in 131 communities in Massachusetts. Because of the Green Communities Act, Massachusetts will continually be updating its energy code to ensure it has the most energy efficient requirements in the nation.

Yesterday, the Legislature held a hearing on several bills addressing the concept of local option codes. NAIOP strongly opposes such codes, including the stretch energy code. Given that Massachusetts is required to have a very aggressive and energy efficient statewide code, NAIOP does not believe there is a need for a stretch energy code that would go beyond the latest version of the IECC. NAIOP testified in support of legislation that would ensure the IECC would be the energy code for all communities in Massachusetts. It would create one uniform, statewide energy code. By discontinuing the use of two or more energy codes for the state, it eliminates confusion for local building inspectors who are responsible for safely enforcing such codes. The legislation also clarifies that communities could be designated as Green Communities, and eligible for the grants associated with such a designation, by adopting this code. Most importantly, rather than having different requirements in different communities, it puts all communities on a level playing field – helping to ensure the Commonwealth’s competitiveness.

NAIOP will be hosting a special program on the energy code changes later this year and we will continue to push for one, statewide energy code.

NAIOP Pursues Ambitious Government Affairs Agenda in 2013

The following appeared in the February 24, 2013 edition of Banker & Tradesman:

Cranes are once again dotting the landscape.  Boston, Cambridge and the suburbs are bustling with new economic development opportunities featuring office, retail, residential, lab, and mixed use projects.  Absorption rates are up and previously proposed developments are seeing new life.  The commercial real estate industry in Massachusetts is alive and well.  Through its government affairs efforts, NAIOP Massachusetts, the Commercial Real Estate Development Association, worked diligently in 2012 to stimulate the industry’s recovery.  Increasing predictability and eliminating red tape were top priorities. Advocacy-sm

As an example, NAIOP strongly supported the Jobs Bill, An Act Relative to Infrastructure Investment, Enhanced Competitiveness & Economic Growth in the Commonwealth, which was signed into law in August.  The law included many of NAIOP’s top legislative priorities including an extension of the Permit Extension Act.  Permits and approvals in effect at any time between August 15, 2008 and August 15, 2012 were extended by four years.  This affected all properties: commercial, housing, business expansions, universities, hospitals, and infrastructure projects.  The bill also made important improvements to District Improvement Financing and the Infrastructure Investment Incentive (I-cubed) program.  In addition, it created a new Local Infrastructure Development Program that provides developers and municipalities with a new tool for leveraging private funding to finance critical infrastructure projects.  The bill was the result of a close collaborative effort by the House, Senate, the Governor’s economic team, and the business community.

Looking ahead, NAIOP is gearing up for an action packed year.  The 2013 – 2014 legislative session kicked off in January and NAIOP filed numerous bills affecting the development, ownership, management, and financing of office, lab, industrial, multifamily, and retail space in Massachusetts.

A top priority for NAIOP is the extension of the Brownfields Tax Credit, which is set to expire this summer if no legislative action is taken.  This tax credit is a proven success.  It protects public health by providing an incentive to clean up contaminated land and redevelop formerly blighted sites into economically vibrant properties.  However, developers need certainty and predictability – especially when making long-term investments.  Without swift action by the Legislature to renew this tax credit, many new projects will not move forward.

NAIOP will continue to advocate for reform of the Facilities of Public Accommodation requirements under Chapter 91, the law governing waterfront development.  Existing law requires virtually all of the ground floor of a waterfront building to be accessible by the public.  This requirement results in countless vacant and underused spaces.  NAIOP’s bill would create more flexibility for ground floor uses, while continuing to create public access to the waterfront.

NAIOP will also pursue legislation that would create a single, uniform statewide energy code.  The bill would ensure Massachusetts remains a leader in energy efficiency while creating a level playing field for all communities.  Building on that concept, NAIOP will also be focused on climate change preparedness.  Given the impact of recent storms, the industry must be prepared for more frequent and severe weather events.  Practical steps are needed to shield existing properties and infrastructure from irreparable damage.  The Commonwealth’s economic survival is at stake.

On the regulatory front, NAIOP will continue to support the Patrick Administration’s massive, top-to-bottom regulatory review for all state agencies. NAIOP was part of the Business Regulatory Review Advisory Committee that recommended which regulations should be rescinded, modified, and or made more consistent with a national model or standard.  Earlier this year, Governor Patrick announced that 446 sets of regulations had been reviewed, leading to 286 opportunities for reform.  NAIOP looks forward to the continued implementation of this effort.  The Massachusetts Department of Environmental Protection is expected to finalize and implement 21 regulatory reforms in the coming weeks.  Also supported by NAIOP, the reforms will make a substantial improvement on the cost and time expended by the regulated community, without diminishing environmental protection.

While Massachusetts is doing well compared to the rest of the nation, the Commonwealth’s recovery is still fragile.  In 2013, NAIOP will continue to urge legislators and regulators to do all they can to ensure Massachusetts retains its competitive advantage.