Cities Cracking Down on Climate Law-Breakers

Cities are tightening building codes and pressuring owners to translate climate goals into energy efficiency and savings. New York is one leading the way.

New York's Hearst Tower was built to use 26 percent less energy than required by code. Credit: Spencer Platt/Getty Images
New York's Hearst Tower was built to use 26 percent less energy than required by code, with an emphasis on natural lighting and temperature controls to reduce waste. The mayor's proposed energy code updates aim to similarly reduce energy use in more buildings. Credit: Spencer Platt/Getty

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To mitigate climate change, cities need to target buildings—the “mother lode” of greenhouse gas emissions, as New York Mayor Bill De Blasio called them last week.

At a news conference, he announced a pathbreaking proposal to set stricter energy efficiency standards in the city’s aging buildings—and to fine building owners who don’t comply with the codes.

Other cities may need to crack down, too, if they are to meet their climate goals. Across the U.S., cities have pledged to reduce emissions, with some (like New York) aiming ambitiously for 80 percent reductions by 2050.

“If you’re a city that’s concerned about climate change, you have to focus on buildings, because that’s where the carbon is,” says Cliff Majersik, executive director of the Institute for Market Transformation, a Washington, D.C.-based nonprofit focused on climate and energy.

Building energy codes—and the ability to strengthen them—are among the most powerful tools cities have to improve energy efficiency, Majersik says. But even as municipal leaders tout energy efficiency, many aren’t doing enough to ensure that their existing energy codes are followed. Cities may need to adopt stronger tactics to translate climate goals into real energy savings and ensure builders aren’t gaming the system.

In New York, a quarter of the city’s emissions come from 14,500 buildings over 25,000 square feet in size. The city earmarked $2.7 billion in its capital budget to retrofit its own buildings, and more than 1,600 municipal and public housing buildings have been upgraded. Now, the mayor wants to force privately owned buildings to meet the same strict standards with new boilers, windows and insulation. In the long term, such measures save money through lower utility bills, but getting to that point can be a battle.

The city has already had to adopt tougher tactics to make new buildings and renovations comply with its existing codes.

As it was tightening energy code enforcement in new buildings in 2014, “nearly every project that came in did not meet the energy code,” says Emily Hoffman, who is in charge of compliance. When Hoffman’s team began pointing out problems with the designs to developers, they discovered that “the applicants weren’t used to getting any kind of pushback on energy code compliance.”

That’s changed now that the city has told the team to crack down on the problem, she says. They are seeing much better compliance to begin with, and can stop work on projects that aren’t up to code.

A Confusing Patchwork of Rules

Fire and safety codes for buildings have existed for well over a century, but energy codes date back only to the late 1970s. In hundreds of pages, they prescribe efficiency standards for wall insulation, windows, heating and cooling systems, and lighting.

Nationally, it’s a confusing patchwork. States and some local jurisdictions adopt their own codes based on two model codes established by private groups. Many jurisdictions use older versions of the model codes, while some have chosen to go beyond the models.

While there are examples of super-efficient green buildings, most buildings hew to the minimum allowable standard, which is why energy codes have been important efficiency tools. Energy codes “are one of the few policy levers that the government actually controls at some level,” says David Cohan, who manages the Building Energy Codes Program at the U.S. Department of Energy.

Energy Codes: Stopping Leaks, Increasing Efficiency

“We know that the codes, if followed, would be producing increasingly efficient buildings,” says Maureen Guttman, president of the Building Codes Assistance Project, a nonprofit in Washington, D.C. “But we also know that if they’re not adopted and if they’re not used, then none of those energy efficiency savings are realized.”

A task force led by the Institute for Market Transformation estimates that on average, each dollar spent on code compliance and enforcement returns six dollars in energy savings.

Low Compliance, Few Enforcement Resources

Architects, engineers and builders are responsible for complying with energy codes, as are subcontractors who work on aspects of the building like wiring and ventilation. The job of enforcing codes falls to building departments that issue permits for new construction and renovations; they review plans and other documentation, and conduct inspections of the site during construction. But building offices frequently lack the time and staffing to review plans for energy code compliance. Some have a single staff member, and health, safety and fire codes take precedence.

“People who run these code departments are really stuck,” says Guttman. Furthermore, “about 80 percent of current code workforce expects to retire in the next 15 years. So we have this huge crisis looming. Not only do cities not have the financial resources to do all of the important code enforcement work that they want to do, but soon may not have the staffing resources to do that work.”

The American Recovery and Reinvestment Act of 2009 brought new attention to the issue of energy code compliance; it required states that accept stimulus funds to develop and implement a plan to achieve 90 percent energy code compliance by 2017. The act led to a flurry of assessment studies and compliance programs, including New York City’s. But while states are technically on the hook for demonstrating compliance, the wording of the legislation was vague and hard to enforce.

Small studies have found that buildings, by and large, don’t fully comply with codes:

  • In Colorado, compliance rates in 2013 were 90 percent for residential buildings but only 28 percent for recent commercial buildings.
  • Massachusetts found an average compliance rate of 80 percent in recently built commercial buildings in 2012, which improved somewhat in a follow-up study; however, no building fully complied with the code.
  • In New York, a similar study found compliance rates as low as 36 percent for commercial buildings and 61 percent for residential buildings.
  • In California, Lea Haro, supervisor of compliance and enforcement for the California Energy Commission’s energy efficiency division, says that compliance rates in the state’s existing homes are estimated to range from 10 to 38 percent, because of the large amount of unpermitted work.

The Department of Energy published early results in 2015 from a series of rigorous studies on energy use in buildings. A study on single-family homes, Cohan says, found that on average, homes met energy efficiency standards, but specific elements often failed to comply with energy codes. That suggests that homeowners are missing out on energy savings totaling hundreds of thousands to millions of dollars each year in some states. A study on commercial buildings is underway.

“Ultimately, the hope is that this spurs both states and local governments to make this a higher priority,” Cohan says. “We’re basically handing them proof that they’re not enforcing their own laws.“

It’s Easy to Game the System

Meanwhile, an alternative strategy to comply with energy codes is making the job of enforcing energy codes even harder. Called the performance pathway, it allows building designers to skip some of the detailed requirements of prescriptive codes if they can show that the proposed building meets an energy performance target, using a software-based energy model.

Energy modeling allows designers to see how building elements work together and achieve high efficiency. But Duane Jonlin, Seattle’s energy code and energy conservation advisor, warns that “energy modeling for code compliance is typically used to make worse buildings.”

To show that a proposed building is energy-efficient, an energy model compares it to a hypothetical baseline—a similar building that meets the prescriptive code. Although the baseline building and the proposed project should be matched, it’s fairly easy to adjust certain elements to make the proposed design look better, says Jacob Knowles, director of sustainable design at engineering firm BR+A in Boston.

Few building departments are equipped with the expertise to review energy models to make sure the baseline and proposed buildings reflect accurate assumptions.

Energy Codes: The Cost of Comfort

One of the most visible examples is the enduring popularity of glass-walled towers, even in cities with strict energy codes. Standard glass walls can have a major impact on energy use, and prescriptive codes often limit the percentage of glass in outer walls. But developers can add features in an energy model, like high-efficiency heating systems to “make up” for the energy lost by glass walls. The result is buildings that meet code requirements but could be much more efficient.

The small hypothetical energy savings in a model often disappear in the real world. In some cases, the project runs over budget and energy-saving features are “value engineered” out of the final building. “If you value-engineer something out, you should have to remodel the building, but unfortunately that doesn’t really happen,” Majersik says.

Michael Rosenberg, an energy code developer at the Pacific Northwest National Laboratory who has led efforts to curb misuse of energy models, says that commercial buildings often use more energy than expected because the complicated control systems that govern lighting, sensors, and heating and cooling are improperly calibrated or nonfunctional.

Codes are beginning to focus more on requiring commissioning, a months-long process of ensuring all these systems are working, he says.  

These Cities Are Stepping Up Code Enforcement

In response to the 2009 stimulus package, many states launched programs to educate design, engineering and construction professionals, whose licenses are on the line when they stamp documents asserting a project meets code.

In some states, energy utilities are also funding compliance education, but efficiency advocates say they could do more. Several groups have created checklists and software tools to improve how building plans document energy use and help building officials review them quickly.

Some cities are also stepping up code enforcement.

Dallas, for instance, uses professional third-party energy code reviewers and inspectors to handle details that building department staffers can’t.

Washington, D.C., created a Green Building Division in 2013 to enforce its energy code and new green building legislation. Its manager, David Epley, says the division improved the compliance rate of new buildings from 74 to 99 percent in just two years using an approach developed by the Institute for Market Transformation. The division’s staff includes five plan reviewers, funded by building permit fees, who check for compliance at several points along a project’s timeline, from the design phase through a year or two after construction.

In Seattle, which has pledged to be carbon neutral by 2050, “the energy use in new buildings has to be reduced by 70 percent,” says Jonlin. To achieve that, its building department employs several mechanical engineers to review plans. “It’s a luxury that hardly any building departments can afford,” he says.

When the King Street Station in Seattle was remodeled, the designers sought out LED lighting that could match the building's historic look while lowering its energy use. Credit: Mat Hayward/Getty Images
When the King Street Station in Seattle was remodeled, the designers sought out LED lighting that could match the building’s historic look while lowering its energy use. Credit: Mat Hayward/Getty Images

Jonlin’s staff is supported by a yearly grant from Seattle City Light, the city’s publicly-owned electric utility, as well as building permit fees, and an hourly fee to review plans with energy models, which he says can take between three and twenty hours.

More importantly, the reviewers have the power to push back against developers.

“Hardly anybody gets away unscathed,” he says, with most projects requiring at least a couple of cycles of corrections. That sets Seattle apart from nearby communities. “I get complaints all the time” from developers who don’t face similar hurdles in other places, he says.

New York, Washington and Seattle have all benefited from funding made possible by construction booms, but they also have a mandate from the city government to enforce codes.

“Developers are some of the most powerful people in any community,” says Majersik. Building officials “have to know that the mayor has their backs if they’re slowing down permitting for a powerful developer.”

Those kinds of tactics may be needed to turn ambitious energy policies into reality. “Without the policy, nothing else would happen,” says Cohan, “but the policy alone doesn’t solve the problem.”