One of the dominant trends in the law of sustainability is that the regulations that govern green building construction and performance – think of them as “green building codes” – are not written by legislators or municipalities but by private, non-governmental organizations. The most visible example of this phenomenon is the U.S. Green Building Council’s LEED green building certification system.
Another key player in private green regulation is ASTM International. ASTM started life in 1898 as the American Society for Testing and Materials. It is an international standards organization that develops and publishes voluntary consensus technical standards for a wide range of materials, products, systems, and services. And in February of this year, ASTM published its “Building Energy Performance Assessment (BEPA) Standard,” known in shorthand as ASTM E2797-11 or as simply the ASTM BEPA standard.
A technical dissertation on BEPA’s provisions is beyond the scope of this post (and would likely put you to sleep). But here is the meat of the coconut:
- The BEPA standard is intended to “define a commercially useful practice for collecting, compiling, and analyzing building energy performance information associated with a building involved in a commercial real estate transaction”;
- The BEPA standard has five basic components – (1) a site visit; (2) collection of records, information, and data; (3) review and analysis of the collected materials; (4) interviews; and (5) preparation of a report; and,
- BEPA is designed to be used in connection with other design and ratings standards, such as LEED, ASHRAE, and Energy Star.
It will take some time for the practical effect of BEPA to become clear. Another “outside the scope” use of the BEPA standard is that it complements the Sustainable Buildings Design and Sustainable Energy-Efficient Buildings Programs already on the books in Arkansas. The guidelines associated with the programs recommend energy data measurement and collection, and BEPA could provide a uniform standard by which to do so.
Another reasonable expectation is that BEPA assessments will become part of the due diligence associated with commercial real estate transactions. There is a precedent for this, as the ASTM “Environment Site Assessment (Phase I) Standard” has become a standard point of due diligence.
We can also anticipate that the BEPA standard will be incorporated into state and local law regarding building “labeling” – i.e., regulations that require building owners to measure and disclose certain energy efficiency data about a building. Such requirements are vogue in places like New York City and Austin, Texas. While Arkansans do not take many cues from the Big Apple (at least, not that we admit to), there is a known close relationship between Little Rock Mayor Stodola and his counterpart in Austin.
A final consideration is the
Gifford v. USGBC lawsuit, which, among other things, challenges the effectiveness of the LEED rating system in measuring a building’s energy efficiency. Despite the claims in Gifford, it seems that there is little debate that LEED is a system related to
designing buildings, and not for
measuring their performance. Indeed, part of the USGBC’s response to the
Gifford suit is that “LEED is premised on identifying strategies intended to improve building design,” and that, with the exception of the “existing buildings program, the LEED certification process does not assess the actual environmental performance of any of the structures for which certification is sought or granted.”
Nonetheless, the LEED system has become the rock upon which the green castle is built as an increasing number of states and municipalities – Arkansas and the cities of Fayetteville and Little Rock included – have sought to green their building practices and to legislate sustainability and energy efficiency. While there is evidence that LEED-certified buildings are more energy efficient than their non-certified counterpart, the LEED system is not a building code and certification is not a substitute for a systematic analysis of a building’s performance. This means that in many cases, the LEED system is being but to a task for which it was never intended. The BEPA standard fills this gap.
In short, local governments, developers, energy raters, lawyers, investors, bankers, and deal-doers of all types who deal with green commercial real estate and who want to get ahead of the curve should add a new acronym to their vocabulary. Absent some “battle of the standards,” BEPA is here.
(Department of Citation: The material quoted from the USGBC’s response to the Gifford suit comes from the “U.S. Green Building Council’s Memorandum of Law in Support of Motion to Dismiss First Amended Complaint,” United States District Court for the Southern District of New York civil action no. 1:10-cv-07747, Docket No. 20 at p. 5.)
