On July 9, 2013, the U.S. Department of Energy (DOE) issued the attached final rule updating the baseline energy efficiency standards for new federal commercial buildings and for new multi-unit residential buildings that are higher than three stories. The rulemaking document does not include any discussion of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, which requires each federal agency to seek input from tribes in developing regulatory policies that have tribal implications. Apparently, DOE not only concluded that there are no “tribal implications” but also that there was no need to explain such a conclusion. It appears to us, however, that there may be tribal implications that have been overlooked.
DOE is required by statute to establish energy efficiency standards for new federal buildings. 42 U.S.C. § 6834(a) (regulations codified at 10 CFR Part 433). A federal building is “any building to be constructed by, or for the use of, any Federal agency. Such term shall include buildings built for the purpose of being leased by a Federal agency, and privatized military housing.” A “commercial building” is “any building other than a residential building, including any building developed for industrial or public purposes.” 42 U.S.C. § 6832. Issues relating to buildings constructed by tribal governments for the operation of federally-funded programs are not addressed in either the statute or the regulations. Presumably, a building constructed by the Bureau of Indian Affairs (BIA) or Indian Health Service (IHS) is a federal building even though title to the building may be transferred to a tribe through a self-determination contract. If a tribe constructs a building with federal funds, e.g., through self-determination contract or self-governance compact, then it is arguably not a federal building and, so, not subject to federal energy efficiency standards.
The rule updating the energy efficiency standards for new federal buildings is part of a multi-faceted program to promote energy efficiency in new buildings. 42 U.S.C. §§ 6831 – 6836. Other components include support for non-governmental organizations that develop standards for incorporation into building codes and support for states and local governments to periodically review their building codes and incorporate such standards. Tribes are not included in the statutory language, and have generally been left out of the assistance that DOE provides to state and local governments.
The program for federal buildings seeks to provide leadership in energy efficiency. The goal is to reduce consumption of fossil fuel energy in federal buildings such that by 2030 new buildings will consume zero fossil fuel energy. The basic approach is to incorporate by reference the standards in the “voluntary consensus codes” developed by two organizations: the International Code Council (ICC) and the American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE). The ICC’s International Energy Conservation Code (IECC) is the referenced code for low-rise residential buildings (three stories or less above grade), and ASHRAE Standard 90.1 is the referenced code for commercial buildings and high-rise residential buildings. Both the IECC and ASHRAE 90.1 are updated periodically. Whenever one of these codes is updated, DOE must determine, based on a life-cycle analysis of cost-effectiveness, whether to amend the baseline standards to incorporate the updated referenced code. In the new final rule, DOE has determined that it will be cost-effective to update baseline standards for new federal commercial and high-rise residential buildings to incorporate the 2010 version of ASHRAE 90.1 as the minimum.
New federal buildings are required to at least meet the minimum standards, but they are supposed to do better – they are supposed to be 30 percent more efficient than a building that complies with the minimum standards, as long as the incremental efficiency improvements are life-cycle cost-effective. Thus, after the new rule takes effect, the standard for a new federal building will be 30 percent more efficient than a building that just meets the ASHRAE 90.1 2010 standards and, consequently, will have energy costs of about 30 percent less per year. A new building that is federally funded but not “federal” will have to meet the energy efficiency standards in the applicable building code, if there is one. If a new building constructed by a tribe is held to compliance with the 2010 version of ASHRAE 90.1, the tribe’s new building would have energy operating costs of about 30 percent more than a comparable new federal building.
For reasons explained in the preamble to the final rule, it was not published for public review and comment. Nevertheless, tribes could file comments with DOE to raise concerns regarding the tribal implications of this final rule and other aspects of the DOE program to promote energy efficiency in new buildings. For example, tribes could ask for assistance from DOE to develop tribal building codes that incorporate an energy reduction target like that in the new final rule, i.e., 30 percent better than ASHRAE.
If we may be of further assistance regarding energy efficiency standards for new federal buildings, please contact us at the information below.