Regulating Greenhouse Gases Residential and Commercial Buildings

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					               Comment Submitted to Docket EPA-HQ-OAR-2008-0318:
                         Advance Notice of Proposed Rulemaking:
               Regulating Greenhouse Gas Emissions under the Clean Air Act

The Inefficiencies of Regulating Greenhouse Gas Emissions from Residential
             and Commercial Buildings under the Clean Air Act

                                     Submitted by the
                             Environmental Law Project
                                           at the
                          University of Pennsylvania Law School

                              Authors (in alphabetical order):
 Roland Backhaus, Linda Bartusiak, Elizabeth Corey, Seth Daniels, Alexander Dworkowitz,
  Zeynap Goral, Kwan Ting S. Ho, Christina Kaba, Kerri A. Kuhn, Jonathan Lane, Matthew
Mcfeeley, Johnathan Peterson, Spencer Romney, Adam Schwartzbaum, Benjamin Simler, Deena
   Shanker, Eleni Skoufari, Brandon Tuck, Nathan Vogel, Ronald B. Wells and Gary Yen.

   The Environmental Law Project is a voluntary group of law students at the University of
   Pennsylvania Law School. The views expressed in this paper are neither endorsed by nor
             submitted on behalf of Penn Law or the University of Pennsylvania.
                                                            Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

                  The Inefficiencies of Regulating Greenhouse Gas Emissions
              from Residential and Commercial Buildings under the Clean Air Act*

                                             I.       INTRODUCTION

         Climate change, caused by greenhouse gas (―GHG‖) concentrations in the atmosphere, is

a danger to public health and welfare. GHG emissions, including carbon dioxide (CO2)

emissions must be reduced in order to mitigate climate change. The Clean Air Act,1 designed by

Congress to address all air quality problems,2 requires that the Environmental Protection Agency

(―EPA‖) regulate GHGs.3

         Residential and commercial buildings play a primary role in the emission of GHGs in the

United States. First, these buildings are major consumers of energy generated from fossil-fuel

combustion. Second, a significant number of buildings in these sectors contain on-site furnaces,

boilers and water heating systems that directly emit GHGs into the atmosphere. Because of this

on-site generation of GHGs, the EPA will be legally required to regulate these buildings as

―stationary sources‖ under a plain reading of the Clean Air Act.4

            This comment was authored by student-members of the Environmental Law Project at the University of
Pennsylvania Law School. The Environmental Law Project is a voluntary group of law students, and the views
expressed in this paper are neither endorsed by nor submitted on behalf of Penn Law or the University of
            42 U.S.C. § 7401 et seq. (1990).
            See id. § 7401(b) (declaring the Clean Air Act‘s purpose to be, in part ―to protect and enhance the quality
of the Nation‘s air resources so as to promote the public health and welfare and the productive capacity of its
            See Mass. v. U.S. Environmental Protection Agency, 549 U.S. 497, ___, 127 S.Ct. 1438, 1462 (2007)
(finding that ―greenhouse gases fit well within the Clean Air Act‘s capacious definition of air pollutant….[therefore]
EPA can avoid promulgating regulations only if it determines that greenhouse gases do not contribute to climate
            Clean Air Act, 42 U.S.C. § 7408(a)(1)(A) (1990) (requiring the EPA Administrator to regulate ―emissions
of [air pollutants] which, in his judgment, cause or contribute to air pollution which may reasonably be anticipated
to endanger public health or welfare‖); cf. Mass. v. EPA, 549 U.S. at ___, 127 S.Ct. at 1462 (noting that the EPA
Administrator‘s ―judgment‖ under 42 U.S.C. § 7521(a)(1) ―must relate to whether an air pollutant cause[s], or
contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare‖).

                                                   Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

        Although reducing emissions from residential and commercial sources is crucial to any

climate change strategy, the Clean Air Act is an ineffective tool for regulating these sectors.

First, applying the Clean Air Act to GHG emissions would impose unduly burdensome

requirements on individuals and commercial property owners in instances where GHGs are

emitted from on-site energy generation. Second, by using the Clean Air Act to regulate these

sources, the EPA would miss important opportunities to improve energy efficiency, and overall

GHG emissions, from all residential and commercial properties. Therefore–although GHG

emissions from residential and commercial buildings should be regulated–lawmakers must

develop an alternative to the Clean Air Act to effectively address the unique challenges inherent

in these sectors.


                             BOTH CRITICAL AND COST-EFFECTIVE

        Residential and commercial buildings constitute a primary source of GHG emissions in

the United States. As a major contributor, any comprehensive plan to mitigate climate change

will not reach its optimal effect without regulation of these buildings. The two sectors

combined, inclusive of electricity use, account for about 2.3 trillion metric tons of CO2 annually,

more than any other sector, including the (much publicized) transportation sector. Unless strictly

regulated, their emissions will continue to swell as population and annual per capita income

increase. However, these sources comprise the ―low hanging fruit‖ in climate change mitigation

because emission reductions from these sectors are both highly cost-effective and

technologically feasible.

                                                           Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

         Residential and commercial buildings are a major source of GHGs as they are among

primary consumers of electricity. Much electricity in the United States comes from fossil fuel

combustion, which ―comprises the single largest category of carbon dioxide emissions.‖5

Combustion of fossil fuels accounts for 98% of CO2 emissions,6 and 85% of all GHG emissions.7

Eighty-five percent of fossil fuel combustion generates energy, primarily electricity.8 The

residential and commercial sectors are the primary consumer of the electricity produced,9

consuming about 70% of all electricity generated.10 In total, American residential and

commercial buildings are responsible for 30% of GHG emissions in the United States, and 39%

of U.S. carbon emissions.11

        Residential and commercial buildings are also responsible for GHG emissions from a

variety of means other than electricity consumption. For example, residential and commercial

buildings are large consumers of water, for which the delivery can be an energy intensive

process.12 Similarly, these sectors also account for a significant amount of solid waste, which

THE UNITED STATES 2006, NO. DOE/EIA-0638, at 2 (2008), available at http://www.eia. (last visited Nov. 28, 2008).
DOE/EIA-X012 (2008), available at greenhouse.pdf (last
visited Nov. 28, 2008).
005 (2008), available at emissions/downloads/08_CR.pdf (last visited Nov. 28, 2008).
           DOCUMENTATION FOR EMISSIONS, supra note 5 (last visited Nov. 28, 2008).
            U.S. Green Building Council, Building Design Leaders Collaborating on Carbon-Neutral Buildings by
2030, available at ID=3124 (last visited Nov. 4, 2008)
[hereinafter Building Design].
2012, at 1-5 (2008), available at
complete.pdf (last visited Nov. 18, 2008) (noting that U.S. buildings account for 9.1% of the global total of carbon

                                                            Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

may be incinerated on-site, disposed of in landfills, or sent to treatment facilities, all of which

contribute to GHG emissions.13

         Buildings in the residential and commercial sectors also directly generate GHGs.14

Notably, a significant number of the homes and commercial buildings contain furnaces, boilers,

and water heating systems that direct emit GHGs. One study suggests that the use of a gas-fired

residential boiler can emit up to 3 tons of CO2 per year, while a gas-fired furnace can emit up to

4.97 tons of CO2 per year.15 These homes and buildings are clearly sources under a plain reading

of the Clean Air Act.16

         Energy consumption in the residential and commercial sectors is steadily increasing.

Although between 1990 and 2006 the U.S. population grew an average of 1.2% annually, the

CO2 emissions from the residential sector increased at an annual rate of 1.8% during a similar

period, generating a net of nearly 300 million metric tons more CO2 emitted by the residential

sector in 2005 than 1990.17 According to one estimate, ―[o]ver the next 25 years, CO2 emissions

from buildings are projected to grow faster than any other sector.…‖18 Carbon dioxide

emissions from the residential sector are primarily attributable to fuel used for ―heating and

              Nadav Malin, Counting Carbon: Understanding Carbon Footprints of Buildings, ENVTL. BLDG. NEWS,
July 1, 2008, available at
Understanding-Carbon-Footprints-of-Buildings (last visited Nov. 4, 2008).
              What emissions are counted in any statistic is largely policy driven—what is emphasized generally is
dictated by the end goals. We mention that there are a significant variety of GHG emissions generally not accounted
for when considering the residential and commercial sectors in order to point out that regulating these sectors can be
both far reaching and effective. ―Emissions from energy used in building operations are the obvious place to start in
measuring a building‘s carbon footprint, but stopping there leaves many emission sources off the table, such as
emissions from transportation to and from the building, providing water to the building, and creating the building
itself.‖ Id.
              Lijun Yang, Radu Zmeureanu & Hugues Rivard, Comparison of Environmental Impacts of Two
Residential Heating Systems, 43 BUILDING AND ENVIRONMENT 1072, 1078 (2008).
              See infra Section III.
              Building Design, supra note 10.
              Id. (noting that as the economy and population grow, as many as 15 million new buildings will be
constructed to meet demand through the year 2015).

                                                         Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

cooking‖ and ―[e]lectricity for cooling (and some heating), for lighting, and increasingly for

televisions, computers, and other household electronic devices.‖19

        At the same time, the carbon dioxide output from the commercial sector grew at

approximately the same rate as annual per capita income from 1990 through 2006, contributing

to a corresponding increase in GHG emissions.20 Commercial sector emissions are ―largely the

result of energy use for lighting, space heating, and space cooling in commercial structures.‖21

        The United States‘ residential sector accounts for about 6 quadrillion BTUs in non-

electric consumption, and over 20 quadrillion BTUs of thermal consumption when including

electricity contributions22 which translates into almost 500 and 1300 million metric tons of

annual CO2 emissions, respectively.23 Commercial entities consume 5 quadrillion BTUs in non-

electric consumption and approximately 19 quadrillion BTUs when electric consumption is

included,24 which amount to the emission of approximately 250 and 1,000 million metric tons of

CO2, respectively.25

        While much of the available data only accounts for emissions from existing buildings,

there are also emissions attributable to the construction of new buildings and the raw materials

used in that construction; indeed, these emissions are expected to account for as much as 18% of

a building‘s lifetime emissions.26 If engineers and architects designed buildings to use

CARBON DIOXIDE EMISSIONS, available at (last visited Nov. 4,
          GREENHOUSE GASES, CLIMATE CHANGE, AND ENERGY, supra note 6, at fig. 4.

                                                             Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

approximately 50% less energy over their 50-100 year expected lifetimes, ―it would save over 6

million metric tons of CO2 annually for the life of the buildings–the equivalent of taking more

than 1 million cars off the road every year.‖27

          Regulation of residential and commercial buildings is a cost-effective, technologically

feasible, and readily implemented means of reducing United States‘ emissions. New building

technologies can substantially reduce emissions from new buildings28 without increasing overall

costs.29 Cost-effective technologies to improve the energy efficiency of existing buildings are

also available, but not widely utilized.30 Reductions from commercial and residential building

are some of the easiest and cheapest methods to reduce overall GHG emissions in the United


          Furthermore, reducing GHG emissions from these sources has beneficial secondary

effects. Of primary importance is the correlation between reduced energy consumption and

reduced dependence on foreign sources of fuel. Cost savings from reducing energy consumption

are estimated at upwards of $70 billion.31 Green buildings have also been shown to have health

              Building Design, supra note 10.
              Id. (―Building green is one of the best strategies for meeting the challenge of climate change because the
technology to make substantial reductions in energy and CO 2 emissions already exists. The average LEED®
certified building uses 32% less electricity and saves 350 metric tons of CO2 emissions annually‖).
              Lisa Fay Matthiessen & Peter Morris, Cost of Green Revisited: Reexamining the Feasibility and Cost
Impact of Sustainable Design in the Light of Increased Market Adoption, at 1, 5 (2007), available at
(last visited Nov. 4, 2008) (finding no significant difference in average costs for green buildings as compared to
non-green buildings).
              See Deloitte & Charles Lockwood, The Dollars and Sense of Green Retrofits (2008), available at (last visited Nov. 4, 2008) (discussing the financial
benefits of ―green‖ building retrofits).
              William J. Fisk, Health and Productivity Gains from Better Indoor Environments and their Relationship
with Building Energy Efficiency, 26 ANN. REV. ENERGY ENV‘T 537, 560 Table 4 (2000) available at EE2000.pdf (last visited Nov. 4,

                                                          Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

benefits for employees and residents, leading to increased productivity and fewer day of work

missed for health reasons.32

           Residential and commercial buildings are responsible for a major portion of domestic

GHG emissions. These emissions can be reduced at a low price and can provide many

secondary benefits. Therefore, any effective regulatory scheme designed to reduce GHG

emissions must directly address and regulate energy consumption and the direct generation of

GHG emissions by residential and commercial buildings.


                                  CLEAN AIR ACT: A LEGAL ANALYSIS.

           The Clean Air Act requires EPA to regulate residential and commercial buildings once it

makes its affirmative endangerment finding.33 Historically, the Clean Air Act has been applied

to industrial polluters, such as coal power plants; however, the Act‘s regulatory framework does

not differentiate based on building type. Rather, the Act targets any source, mobile or stationary,

whose emissions of identified pollutants exceeds certain thresholds. Therefore, once EPA

resolves to regulate GHGs under the Clean Air Act, the Act will apply to all significant sources,

including homes, apartment buildings, retail stores, and other commercial buildings that have on-

site furnaces, boilers, or water heating systems. These buildings will need to acquire permits

from EPA or approved state agencies in order to emit GHGs.

           Id. at 558-59.
           Clean Air Act, 42 U.S.C. § 7408(a)(1)(A) (1990) (requiring the EPA Administrator to ―regulate
emissions of [air pollutants] which, in his judgment, cause or contribute to air pollution which may reasonably be
anticipated to endanger public health or welfare…‖); cf. Mass. v. EPA, 549 U.S. at ___, 127 S.Ct. at 1462 (noting
that EPA Administrator‘s ―judgment‖ under the Clean Air Act ―must relate to whether an air pollutant ―cause[s], or
contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare‖).

                                                          Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

        Once EPA determines that a specific compound, element, or air pollutant type may

reasonably be expected to endanger the public‘s health or welfare, EPA‘s administrator must

publish that finding,34 the most recent scientific information about effects and control

techniques,35 and proposed national primary and secondary ambient air quality standards

(collectively, ―NAAQS‖).36 Emissions limits vary depending on whether the source is covered

under the New Source Review program or under the New Source Performance Standards. The

New Source Review has two main components. First, Title I‘s Part C prevention of significant

deterioration (―PSD‖) program applies in geographic areas currently in NAAQS attainment

status and requires best available control technology, air quality analysis, impacts analysis, and

public involvement.37 Second, Title I‘s Part D non-attainment program applies in geographic

areas not currently in NAAQS attainment and requires lowest achievable emission rates and

emission offsets.38 Alternatively, the New Source Performance Standards apply to 88 specific

industrial categories.39 To comply with these standards, permits must be obtained during the

planning stages for new stationary sources, prior to any modification of existing sources, and

throughout the operation of existing major sources.

        The following discussion focuses on regulation under EPA‘s New Source Review

program, while acknowledging that EPA may also regulate GHGs through New Source

Performance Standards of residential, commercial, and industrial groupings.40

           42 U.S.C. § 7408(a)(2), (d).
           Id. § 7408(b).
           Id. § 7409.
           Id. §§ 7470-7479.
           Id. §§ 7501-7515.
           Id. § 7411.
           Under the New Source Performance Standards, EPA may consider other factors, such as cost and energy
requirements, when deciding whether to impose limits. EPA has published regulations covering specific industries,

                                                           Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

         Under the Clean Air Act, EPA delegates the day-to-day regulatory activities to the states

through state implementation plans (―SIPs‖).41 Each state‘s SIP must include an enforcement

and permitting system for new and modified sources.42 This permitting system requires that any

source of a listed pollutant obtain and adhere to an emissions permit.43 Once GHGs become

regulated pollutants, residential and commercial buildings will require a permit from the state

before they can emit GHGs.

         To determine whether EPA is required to regulate commercial and residential buildings,

one must determine whether a building fits within the statutory and regulatory definitions of a

―source.‖ The Clean Air Act, at 42 U.S.C. § 7661(a), broadly defines the sources required to

obtain a permit:

         [A]n affected source (as provided in subchapter IV-A of this chapter), a major
         source, any other source (including an area source) subject to standards or
         regulations under section 7411 or 7412 of this title, any other source required to
         have a permit under parts C or D of subchapter I of this chapter, or any other
         stationary source in a category designated (in whole or in part) by regulations
         promulgated by the Administrator (after notice and public comment) which shall
         include a finding setting forth the basis for such designation, except in compliance
         with a permit issued by a permitting authority under this subchapter.

         The statutory section on standards of performance for new stationary sources defines a

stationary source as ―any building, structure, facility, or installation which emits or may emit any

each of which identifies appropriate standards (e.g., lowest achievable emission rates or best available control
technologies). See 40 C.F.R. § 60. The regulations rely on Standard Industrial Classification codes to define
industrial groups. § 51.195(a)(1)(ii). SIC code 6514 applies to operators of dwellings other than apartment buildings
(dwellings and residential buildings with four or fewer housing units), and SIC code 6513 applies to operators of
apartment buildings (five or more housing units). Occupational Safety & Health Admin., SIC Division Structure, sic_manual.html (last visited Oct. 25, 2008). Generally, neither are currently
regulated under the New Source Performance Standards program. One notable exception for a residential feature is
the standard for new residential wood heaters. § 60.530. The statutory framework allows EPA to add industrial
categories for New Source Performance Standards at his discretion upon an endangerment finding.
            42 U.S.C. §§ 7401(a)(3), 7416 (1990).
            Id. § 7410(a)(2).
            Id. § 7661a.

                                                             Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

air pollutant.‖44 Furthermore, EPA‘s Plain English Guide to the 1990 Amendments defines a

stationary source as ―[a] place or object from which pollutants are released and which does not

move around. Stationary sources include power plants, gas stations, incinerators, houses etc.‖45

These definitions do not take into account a building‘s physical type, use, or location; rather,

they focus on the presence of air pollutant emissions. A home or commercial building with an

on-site furnace, boiler, or water heating system, clearly qualifies as a ―stationary source‖ under

the Act,46 and some buildings may even meet the more stringent definition of a ―major source.‖47

Therefore, buildings of this type may need to comply with the Act‘s permitting provisions.

         Commercial buildings and larger housing developments may also meet the definitional

requirements of a major source and would need to meet Title V permitting requirements. The

regulations define a major stationary source as ―[a]ny stationary source of air pollutants that

emits, or has the potential to emit, 100 tons per year or more of any regulated NSR pollutant,

except that lower emissions thresholds shall apply in [nonattainment areas].‖48 However, the

Clean Air Act provides that buildings ―which belong to the same industrial grouping, are located

on one or more contiguous or adjacent properties, and are under the control of the same person

(or persons under common control)‖ are considered a single source and may allow aggregation to

             Id. § 7411(a)(3).
             U.S. EPA, Region 9, Air Permits: Definitions of Selected Permitting Terms, available at (last visited Oct. 25, 2008).
             42 U.S.C. § 7602(z) (―The term ‗stationary source‘ means generally any source of an air pollutant except
those emissions resulting directly from an internal combustion engine for transportation purposes or from a nonroad
engine or nonroad vehicle as defined in section 7550 of this title‖).
             Id. § 7602(j) (―[T]he term[] ‗major stationary source‘…mean[s] any stationary facility or source of air
pollutants which directly emits, or has the potential to emit, one hundred tons per year or more of any air pollutant‖).
             40 C.F.R. § 51.195(a)(1)(iv)(A)(1); see also 42 U.S.C. § 7602(j) (1990) (―[T]he term ‗major stationary
source‘ . . . mean[s] any stationary facility or source of air pollutants which directly emits, or has the potential to
emit, one hundred tons per year or more of any air pollutant‖).

                                                  Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

meet the emissions threshold.49 This definition may work to aggregate the emissions of

commercial complexes and residential groupings, such as apartment complexes and common

interest communities, creating major sources out of these clusters of buildings.

       Although not all residential and commercial properties have on-site generation

equipment, the possibility that some residential or commercial buildings may meet the

definitional requirements of a major source is critical. The Clean Air Act allows the EPA

Administrator to exempt entire categories of sources if ―the Administrator finds that compliance

with such requirements is impracticable, infeasible, or unnecessarily burdensome on such

categories…‖50 However this exemption authority is limited where the category includes a major

source under the Act.51 Under this section, the EPA Administrator will likely be prohibited from

exempting residential and commercial buildings from permitting requirements since larger

residential and commercial properties may be considered major sources of GHGs under the

Clean Air Act. Thus, Congress‘s regulatory framework may require GHG regulation of

residential and commercial buildings despite major impracticalities in applying the permit

system to these myriad, diffuse sources.


       The Clean Air Act is an inadequate framework for regulating GHG emissions,

particularly as it applies to households and commercial buildings. First, the Act‘s permitting

process is an excessively burdensome and administratively inefficient means to regulate GHG

          40 C.F.R. § 51.195(a)(1)(i), (ii).
          42 U.S.C. § 7661a(a) (1990).

                                                        Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

emissions from non-industrial sources. Moreover, the Clean Air Act‘s regional approach to

regulation does not adequately regulate GHGs, which, as global stock pollutants, are

fundamentally different in nature from criteria air pollutants regulated under the Act. Because

the Clean Air Act is an inefficient means of regulating diverse sources and is not designed to

address global stock pollutants, it is the wrong regulatory tool for mitigating climate change.

        A.       Permitting Process Under the Clean Air Act

        Permitting individual emissions sources is an inefficient and burdensome approach to

regulating GHGs. While EPA has recognized that individual households can be significant

emitters of criteria air pollutants, such as particulate matter from fireplaces and woodstoves,52

EPA has not chosen to require permits for particulate matter emissions from these residential

sources. Instead, EPA has adopted a different approach for forcing technology change by

certifying individual woodstoves for efficiency and low emissions.53 Requiring GHG permits for

residential and commercial buildings would be even less practical than doing so for particulate

matter. There are many more GHG sources from these buildings and many more buildings that

emit GHG pollutants.

        Congress amended the Clean Air Act in 1990 in part to introduce an operating permit

program.54 The purpose of the operating permit program is to aid EPA in enforcing the Act and

to ensure that sites comply with the requirements of the Act.55 Under the Act, states are required

            U.S. EPA, Cleaner Burning Woods Stoves & Fireplaces,
            See U.S. EPA, List of EPA Certified Woodstoves,
publications/monitoring/caa/woodstoves/certifiedwood.pdf (listing certified wood-burning stoves).
            U.S. EPA, Overview of Clean Air Act Amendments,

                                                   Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

to implement their own permit programs, but if a state fails to implement an approved program,

the EPA will intervene and enforce a federal program for that state.56

       Additionally, the Act provides that the EPA Administrator promulgate minimum permit

requirements to guide states in implementing their own programs.57 These requirements include

a standardized application form, monitoring and reporting requirements, annual fees by

applicants to cover the cost of the permitting program and ―adequate personnel and funding to

administer the program.‖58 Permits issued pursuant to the Act should ―set forth inspection, entry,

monitoring, compliance certification, and reporting requirements to assure compliance with the

permit terms and conditions.‖59

       The Act also requires that applicants submit a compliance plan detailing how the

permittee intends to comply with the Act.60 The compliance plan should include a ―schedule of

compliance, and a schedule under which [a] permittee will submit progress reports to the

permitting authority no less frequently than every 6 months.‖61 The Act further requires that the

permittee periodically certify that the source complies with the permit requirements and

promptly report deviations from the permit requirements.62

       A prospective permittee must submit to the permitting authority both a compliance plan

and an application certified by a responsible official.63 The Act requires that the permitting

authority approve or disapprove the application within 18 months of its receipt; an applicant who

          42 U.S.C. § 7661a(i)(4) (1990).
          Id. § 7661a(b).
          Id. §§ 7661a(b)(1)–(4).
          Id. § 7661c(c).
          Id. § 7661b(b)(1).
          Id. § 7661b(b)(2).
          Id. § 7661b(c).

                                                    Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

submits a timely and complete application, but has not received approval from the permitting

authority, will not violate the Act by failing to have a permit.64

       The permitting authority is in turn required to submit a copy of each permit application,

compliance plan, and proposed permit to the Administrator.65 The Act further requires the

permitting authority to notify those states that either may have their air quality affected and are

adjacent to the state of origin or are within 50 miles of the source of the emissions.66 The

affected states then have an opportunity to submit recommendations to the permitting authority

regarding the permit‘s terms and conditions; if the permitting authority declines to follow those

recommendations, he or she is required to notify the affected states and the Administrator his or

her reasons for so doing.67 If the Administrator independently determines that a permit does not

comply with the Act, he or she is also required to object to its issuance.68

       Requiring such burdensome and costly regulatory oversight of every building‘s GHG

emissions would be impractical. Homeowners and real estate developers would be excessively

burdened by these requirements, and the EPA and the states would be overwhelmed by their

administration. Adding to the difficulties of permitting these sources, monitoring individual

sources for compliance would be equally costly and burdensome. Permitting individual

residential and commercial buildings for carbon dioxide emissions is therefore not a practical, or

even feasible, approach to regulating the significant emissions from these buildings.

          Id. § 7661b(c)–(d).
          Id. § 7661d(a)(1)(A).
          Id. §§ 7661d(a)(2)(A)–(B).
          Id. § 7661d(a)(2)(b).
          Id. § 7661d(b).

                                                            Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

         B.       GHGs are Fundamentally Different from Criteria Air Pollutants

         The Clean Air Act‘s regional framework will not adequately measure the source or

impact of GHG emissions, which are far more globally-reaching than the criteria air pollutants

currently covered under the Act. Unlike other criteria air pollutants, CO2 is not localized in

nature, so monitoring ambient levels of the gas for regulatory purposes under the Clean Air Act

is impossible. Similarly, the environmental impact of GHGs is not limited to the regions in

which they are produced. 69 The Clean Air Act‘s regional framework is therefore inadequate for

regulating these pollutants.

         GHGs are global stock pollutants. As a global pollutant, atmospheric CO2 emitted from

one source is fundamentally indistinguishable from carbon dioxide emitted from a separate

source at another—potentially extremely distant—location. Once CO2 enters the atmosphere, it

mixes with ambient CO2, disperses globally, and is subject to both natural and anthropogenic

global carbon fluxes. The earth naturally cycles carbon through and between oceans, land, air,

and plant biomass. Carbon dioxide and carbon are exchanged between the atmosphere and both

the earth‘s land surface and ocean surface.70 Approximately 120 GtC71 are cycled between the

atmosphere and the earth‘s surface each year as plant photosynthesis converts CO2 to carbon and

             The provisions of 42 U.S.C. § 7415 are simply inadequate to deal with global pollutants like CO 2; the
international agreements it would require are not in place, the need for regulation is pressing, and in any case apply
only to pollution coming from the United States that affects foreign states–it does not address domestically produced
pollutants that affect American interests.
ENERGY AND ENVIRONMENT, DOE/SC-0090 (2005), available at
gov/benefits/simple.shtml (last visited Oct. 2, 2008).
             One gigaton of carbon (―GtC‖) is equivalent to one billion tons of carbon. In the atmosphere, however,
carbon is found in the form of carbon dioxide, which contains two atoms of oxygen for every atom of carbon.
Because oxygen has a higher atomic weight than carbon, it is necessary to multiply GtC by 3.7 to obtain GtCO 2.
of Energy‘s Office of Energy Efficiency and Renewable Energy & EPA,

                                                          Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

terrestrial respiration and microbial decomposition of dead matter reconvert carbon to CO2.72

This terrestrial carbon cycle results in a net annual uptake of approximate 1 GtC stored in soil

and plant biomass.73 Similarly, the earth‘s oceans cycle approximately 90 GtC between their

surface and the atmosphere, resulting in a net annual uptake of approximate 2 GtC stored in the

earth‘s oceans.74 Carbon dioxide that is not stored in the earth‘s soil, oceans, and plant biomass

through this global carbon cycle stays in the atmosphere, making it a stock pollutant.

        As a global stock pollutant, ambient air quality standards, used to monitor criteria air

pollutants to determine compliance with federal and state implementation plans, will not work to

monitor compliance of plans to reduce GHG emissions. The ambient level of a particular GHG

in the atmosphere over any region, state, or monitoring station will largely reflect global GHG

emissions rather than the emissions from that region or state. Therefore, assessment of a state‘s

ambient air quality would not reflect the success of a particular state‘s reduction initiatives; it

would reflect the status of emissions reductions worldwide. Either every state and region would

be in compliance or none would be in compliance. Accordingly, the Clean Air Act‘s regulatory

framework is inappropriate for global stock pollutants like GHGs.

        Although the Clean Air Act requires regulation of GHGs, including those attributable to

residential and commercial buildings, it is an inappropriate and ill-fitting regulatory tool.

Permitting individual homes and commercial building would be extreme costly and burdensome

to the EPA and the American public. Furthermore, GHGs, as global stock pollutants, are

            See OFFICE OF SCIENCE supra note 70.
            Id. The oceanic uptake of carbon may endanger fisheries and coastal zones, since such uptake increases
REPORT 52 (2007), available at (last visited Nov. 18,

                                                 Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

fundamentally different from the pollutants that the Clean Air Act was designed to regulate.

GHGs emissions cannot be effectively monitored through National Ambient Air Quality

Standards.75 For these reasons, the required regulation of GHG emissions requires a new

regulatory framework.


       The EPA is required to regulate GHGs under the Clean Air Act, but the Clean Air Act is

an inadequate tool for addressing these unique pollutants. EPA should notify Congress that the

Clean Air Act is unworkable and assist Congress in designing an alternative regulatory

framework. Regulation of commercial and residential buildings should be included in the new

regulatory scheme because existing, cost-effective technology is available and significant

reductions could be achieved very quickly if the technology is widely used.

       Simply regulating residential and commercial buildings–or any other individual sector of

GHG sources–will be insufficient. Comprehensive national GHG legislation is needed. Climate

change is unlike any environmental regulatory problem the EPA has encountered due to its

breadth and complexity. GHGs are produced by every person in the United States on a daily

basis and they are generated through a diverse array of actions. This complex nature of the

problem suggests that GHG reductions are best achieved through a set of complementary

solutions. Developing complementary programs, rather than a single uniform program, will be a

major challenge, but one that must be accomplished for the United States to achieve the

necessary emission reductions.

            OFFICE OF SCIENCE supra note 70.

                                                       Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

        To craft a comprehensive set of complementary regulatory programs, EPA and Congress

should review existing regulatory models on the local, state, national and international levels,

and incorporate their plans where sensible. EPA and Congress should address the largest and

most cost-effective solutions, including emissions from commercial and residential buildings, in

the earliest stages of implementation. However, it is important to realize that GHG reductions of

the magnitude necessary will come at significant cost; therefore, this comment does not suggest

that only low cost solutions should be pursued.

        A.      Cost Effective Technologies Can Curb Emissions from Residential and

        Commercial Buildings

                          1.      Green Technologies for Existing Buildings

        Many technologies currently exist that are capable of reducing GHG emissions from

existing residential and commercial buildings; consequently, well-crafted regulation would not

present an excessively cumbersome burden to the economy. Existing technologies can be

broadly categorized for their uses in a variety of applications, including building thermal

envelopes, HVAC systems, water heating, lighting, appliances, home electronics, office

equipment, and commercial food service.76 Most of these technologies can be deployed in

existing residential and commercial buildings. Buildings that have been retrofitted with

available technologies have already exhibited many energy efficiency improvements.

           M. Levine et al., Residential and Commercial Buildings, in CLIMATE CHANGE 2007: MITIGATION OF
CLIMATE CHANGE 387-446. Contribution of Working Group III to the Fourth Assessment Report of the
Intergovernmental Panel on Climate Change (2007), available at assessment-
report/ar4/wg3/ar4-wg3-chapter6.pdf (last visited Nov. 18, 2008).

                                                        Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

                                  a)      Thermal envelope

        Between 40-60% of energy use in residential and commercial buildings is used for space

conditioning, including heating, cooling, and ventilation.77 Much of this energy is lost to the

outside environment through a building's ―thermal envelope,‖ a term that refers to the ability of a

building to maintain its temperature and air quality by preventing heat and air from being

exchanged with the external environment. A building‘s walls, roof, foundation, doors, and

windows all form a part of its thermal envelope, and improvements in these areas could reduce

overall energy consumption and GHG emissions.

        Reflective roofs, for example, have already been implemented to reduce cooling costs

during summer months. When building roofs are exposed to the intense summer sun, standard

roof materials absorb the sunlight and increase in temperature. This heat in turn heats the

interior of the building, increasing the stress on the building‘s air conditioning unit. By replacing

the roof material with other materials that have been designed to reflect sunlight and emit heat,

energy demands can be reduced during peak times by as much as 15%. Importantly, currently

available reflective roof materials are often priced similarly to standard roof materials. 78

        Double-pane, spectrally selective windows are another available option for improving a

building‘s thermal envelope. These windows typically consist of two panes of spectrally

selective glass with inert gas sealed between the two panes. Spectrally selective glass is glass

that has been treated to allow only certain wavelengths to pass. This glass is designed to prevent

            U.S. Dep‘t of Energy, Commercial Buildings: Heating Ventilation, and Air Conditioning, (last visited Nov. 18, 2008) (―HVAC accounts for 40
to 60 percent of the energy used in U.S. commercial and residential buildings‖).
            Nicole Sturdevant, Reflective Roofs Return Multiple Dividends, BUILDING OPERATING MGMT. 105, 105-
16 (2000), available at (last visited Nov. 18, 2008).

                                                         Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

heat from radiating through the window, which increases insulation while maintaining the visible

transparency of the glass. The gas layer can also be specially designed to inhibit heat flow and

increase insulation. By replacing single-pane windows with double-pane, spectrally selective

windows, energy loss through windows can be reduced by as much as 25%, which can in turn

reduce the cooling demands of a home by as much as 15%.79

                                  b)       HVAC systems

        Programmable thermostats and air-source heat pumps are just two of many technologies

that have already been implemented in existing houses to reduce energy usage and curb GHG

emissions. Programmable thermostats have been used in many buildings to control the

temperature of the buildings during different time periods throughout the day. With these

thermostats, the temperature of a building can be set to correspond to heating or cooling needs.

For example, in summer, a residential building can set the temperature to be higher during the

day, when residents are likely to be at work and will not need the home to be cool. Conversely,

in winter, a commercial building can set the temperature to be lower at night, when fewer people

are likely to be active. Buildings can reduce their HVAC energy requirements by as much as

18% by installing programmable thermostats.80

        Similarly, air-source heat pumps are an alternative to traditional heating systems.

Traditional space heating systems use energy, such as gas or electricity, to generate heat. By

contrast, air-source heat pumps move heat between the interior of a building and the

BOOKLET 18 (2006), available at savers.pdf (last visited
Nov. 28, 2008).
available at (last visited Nov. 18,

                                                        Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

environment. These systems typically involve passing water or another fluid through sets of

coils located inside and outside of a building. Because energy is only needed to move the heat,

these systems require less energy and emit less GHGs. Air-source heat pumps could reduce

heating and cooling costs by as much as 60%.81 Recent technologies have made heat pumps

practical in even severe climates.82

                                  c)      Water heating

        Approximately 14-25% of the energy currently used by residential and commercial

buildings is consumed by hot water heaters.83 There are many technologies currently available

that can reduce the water heating demands of a building. For example, heat pump water heaters

may be installed in conjunction with air-source heat pumps for space heating.84 These water

heaters take advantage of the heated water used in air-source heat pumps and eliminate the need

for a separate boiler. Demand water heaters work by heating water as it is needed, which

reduces energy (heat) loss from the water during storage. Although the initial installation costs

for both of these technologies are higher than the costs of standard water heaters, they can create

energy cost savings of 25% and 45% respectively, and the increased cost of installation can be

recovered within 10 years.85

home/space_heating_cooling/index.cfm/mytopic=12620 (last visited Nov. 18, 2008).
GUIDE: WATER HEATING, available at water_heating/
index.cfm/mytopic=12760 (last visited Nov. 18, 2008).
            Heat pumps for water work best between 40º and 90ºF, and are best suited for buildings in moderate
CONSUMER‘S GUIDE: HEAT PUMP WATER HEATERS, available at gov/consumer/
your_home/water_heating/index.cfm/mytopic=12840 (last visited Nov. 18, 2008).
            See Jennifer Thorne Amann et al., CONSUMER GUIDE TO HOME ENERGY SAVINGS (9th ed. 2007).

                                                         Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

                                  d)       Lighting

        Lighting demands account for about 10% of residential energy use and 20% of

commercial energy use. Efforts are already underway to reduce lighting energy demands by

using more efficient ambient lighting and by replacing existing incandescent light bulbs with

new light bulb technologies.86 These types of efforts could result in a reduction of lighting

electricity demands by as much as 90%.87

        Compact fluorescent light bulbs (―CFLs‖) represent new light bulb technology that is

increasingly being used to replace incandescent bulbs. Traditional incandescent light bulbs

generate light by heating a metal filament until it glows, and as a result, most of the energy used

by incandescent bulbs is lost as heat. By contrast, CFLs generate light by creating a plasma that

excites phosphors that then emit light. Because CFLs can be designed to create mostly light that

is visible to humans, they do not create excessive heat and are thus more energy-efficient. CFLs

use about 75% less energy than traditional incandescent bulbs, and are significantly less

expensive to operate than incandescent over the entire lifetime of the bulb.

        Light emitting diode (LED) lamps are also gaining popularity and are based on solid-state

technology and generate light by the manipulation of electrons within a semiconductor. LED

lamps are more efficient than CFLs, and because LEDs do not require the use of vacuum or gas

tubes, they have a much longer lifetime when compared to both incandescent bulbs and CFLs.

When used to replace incandescent bulbs, LED lamps can result in a 90% reduction in energy

           E.g., Energy Independence and Security Act of 2007, 121 Stat. 1492, P.L. 110-140 (phasing out
incandescent bulbs by 2020).
           Levine, supra note 76.

                                                          Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

use. However, because the technology is relatively new, the higher cost of these bulbs limits

their widespread use.88

                                   e)      Appliances

        By far, the largest demand for energy in residential and commercial buildings is for

powering appliances, including household appliances, consumer electronics, and office

equipment. Appliances account for about 50% of all commercial building energy use and 40%

of all residential building energy use in the United States.89 Many manufacturers already

produce energy-efficient models of existing appliances; many of which are listed on the U.S.

Department of Energy and EPA‘s Energy Star program.

        Absorption refrigerators, for example, contain no moving parts and do not require freon

as a coolant. Absorption refrigerators are cooled by causing liquids and pressurized gases to

flow through the appliance. The unit only requires an external heat source to drive the cooling

process. The heat could be supplied from sources of waste heat, such as exhaust vents, or from

natural processes, such as sunlight.90 Replacing standard refrigerators with absorption

refrigerators would reduce GHG emissions significantly as refrigerators represent the single

largest consumer of electricity in the residential home.

            But see Emil Venere, Advance Brings Low-Cost, Bright LED Lighting Closer to Reality, Purdue U.
News, July 17, 2008, (last visited Nov. 18, 2008)
(noting that although currently prohibitively expensive, LED lighting should be generally affordable within two
            Levine, supra note 76.
            K.E. Herold et al., ABSORPTION CHILLERS AND HEAT PUMPS (1996).

                                                    Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

                          2.        Green Technologies for New Buildings

       Green technologies allow the construction of new residential and commercial buildings

that use significantly less energy than buildings made using standard construction techniques.

Some of these technologies are also used in retrofitting existing buildings, while other

technologies are used solely in conjunction with new construction. These technologies target

various aspects of the construction, including:

               Building Materials. There is a large variation in the GHG emissions stemming

                from building materials. Increasing the use of wood in building construction

                could reduce CO2 emissions by 50%. The total energy used in the manufacturing

                of glulam beams is one-half to one-third of the energy used for the manufacturing

                of steel beams.91

               Insulation. Alternative insulation materials, combined with a building design that

                ensures that spaces between building components are air tight, improve energy

                efficiency. Using windows with chromogenic glazing can also reduce the need

                for heat in the winter and air conditioning in the summer.92

               Energy supply. Heating systems with large surface areas – such as floor, ceiling,

                or wall heating – do not require as high a temperature in the heat carrying media

                as more traditional heating systems such as radiators; as a result, they require less

OPPORTUNITIES 17 (2007), available at
BuildingsClimate.pdf (last visited Nov. 18, 2008).
           Id. at 20.

                                                        Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

                 energy. Solar chimneys, an ancient technology, can be used in some homes as a

                 low-energy cooling system.93

        While many of these technologies are employed with the goal of reducing energy use by

50%, other buildings are capable of reaching ―zero-energy.‖ These buildings aim to produce as

much energy as they consume, using technologies such as solar cells, small scale wind turbines,

and ground source heat pumps for heating.94

        Information on green building techniques has also become widely available. The U.S.

Department of Energy issued its second Housing that Works guide in 2005, a technical manual

that describes various energy-saving techniques to builders. The guide provides examples of

three model homes for four climate zones in the United States: hot-humid, mixed-humid, cold,

and hot-dry/mixed dry. For example, ―The Chicago‖ is a wood-frame house design for cold

climates, and the guide makes dozens of recommendations for the specifications of the house,

ranging from the proper hot air furnace to the best type of vents to use in the attic. The research-

tested specifications are designed to reduce energy use by 40 to 70%.95

        These technologies are not hypothetical solutions; they are being employed in

construction throughout the country. The U.S. Green Building Council (―USGBC‖) has

developed nationally recognized standards for green building certification, known as the

Leadership in Energy and Environmental Design (―LEED‖) Green Building Rating System, and

has promoted the use of energy-saving technologies in construction. USGBC gave a platinum

          Id. at 21.
          Id. at 26-27.
No. NREL/SR-550-37664 (2005), available at (last visited Nov. 18,

                                                          Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

designation to a new community center in San Diego, California known as the Del Sur Ranch

House, which used historic timbers, rapidly renewable materials including cork and sunflower

husks, and satellite irrigation technology to reduce water use by 71% and energy use by 65%.96

The USGBC also recognized Morrisania Homes, 26 two- and three-family homes in the Bronx,

New York, which use seal-combustion boilers, recyclable carpeting, and Energy Star appliances

to reduce energy use by 30%.97 Saving energy in low-income construction not only reduces

GHG emissions, but also has the added benefit of reducing the financial burden on low-income

residents facing high energy costs.98

             3.       The Costs of Implementing Energy Efficient Building Technologies

        The World Business Council for Sustainable Development (―WBCSD‖) is a consortium

of ten companies in six countries. The goal of its Energy Efficiency in Buildings (―EEB‖)

project is to achieve zero net energy use in buildings in a cost-effective manner, where ―zero net

energy‖ is defined as the condition in which the annual aggregate energy generation of buildings

is equal to their annual aggregate energy consumption.99 The WBCSD concluded that it is

feasible to significantly reduce buildings energy demands and GHG emissions using cost-

effective technologies available today.

            U.S. Green Building Council, Project Profile: Ranch House at Del Sur, San Diego, CA,
            U.S. Green Building Council, Project Profile: Morrisania Homes, Bronx, NY,
TENANTS, No. GAO-09-46 (2008).
            World Business Council for Sustainable Development, Energy Efficiency in Buildings: Business Realities
& Opportunities, Facts & Trends Summary Report 7 (2007) (hereinafter EEB Facts & Trends) (quotation omitted),
available at EEB-Facts-and-trends.pdf (last visited
Nov. 18, 2008).

                                                           Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

                                      a)     Feasibility

          Energy abatement measures with zero or negative net total lifecycle costs have the

potential to reduce future global electricity demand by about 50%, with an annual reduction from

2.5% to 1.3% annually.100 The Intergovernmental Panel on Climate Change (―IPCC‖) Fourth

Assessment Report estimates that by 2020, CO2 emissions from building energy use can be

reduced by 29% at no net cost.‖101

          The Fraunhofer Institute has shown that energy demands can be reduced by 50% in new

office buildings compared to existing buildings without increasing construction costs.102 The

USGBC found that the cost premium of attaining certification under their LEED standard is

between 0% and 3%, while the cost premium of attaining the highest level of LEED certification

(Platinum level) is less than 10%.103 Additionally, California‘s Sustainable Building Task Force

reported on a study in 2003 regarding costs and financial benefits of green buildings and made

the following findings:

                    Green buildings are a solid financial investment.104

                    A minimum upfront investment of about 2% (the ―green premium‖) on

                     construction costs yields a lifecycle savings of greater than 10 times the initial


                Per-Anders Enkvist et al., A Cost Curve for Greenhouse Gas Reduction, THE MCKINSEY QUARTERLY 42
             EEB Facts & Trends, supra note 99, at 6.
             Sebastian Herkel et al., Energy Efficiency in Commercial Buildings: Experiences & Results from the
German Funding Program SolarBau, Improving Energy Efficiency in Commercial Buildings (IEECB) Conference
2006, Frankfurt, Germany (April 27, 2006).
             Greg Kats et al., The Costs & Financial Benefits of Green Buildings, v (2003), available at (last visited Nov. 18, 2008).

                                                         Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

                 Energy savings alone exceed the value of the green premium.106

                 Even more financial benefits accrue from savings in waste disposal, water,

                  operations and maintenance, productivity and health.

                 The 20-year net present value (―NPV‖) of the green premium was estimated to be

                  $4.00 per square foot while the 20-year NPV of the energy savings was estimated

                  to be $5.79 per square foot.107

        Other studies on the costs of green buildings found that each increase in sustainability

level (e.g., LEED certification level) incurred short-term cost increases but much larger long-

term cost savings.108 In a study conducted by XENERGY for the Portland Energy Office,

researchers found that in a case study involving three standard buildings, attaining LEED

certification levels would yield a 15% lifecycle savings (including savings from energy, water

and materials).109

        Importantly, location and climate are also significant factors affecting the cost-

effectiveness of green building. A survey conducted by Davis Langdon, a construction

management services firm, examined the effects of location/climate on the green cost of more

than 600 green building projects in 19 states. According to the surveys, in some instances,

location and climate affect the value of the green cost premium more than certification level, as

well as the cost differential between certification levels.110 Since each LEED point is based on

             Id. at ix.
             Id. at ix fig. ES-1.
             Id. at vii.
             XENERGY Inc. & SERA Architects, Green City Buildings: Applying the LEED Rating System, S-6
(2000), available at (last visited Nov. 18, 2008).
             Matthiessen & Morris, supra note 29, at 16.

                                                          Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

the amount of energy saved,111 climate and location will therefore affect the cost of

implementing energy efficient technologies in order to reduce CO2 emissions.112

        Retrofitting old buildings to be energy efficient can also be cost-effective. The

International Energy Agency conducted a study of high-rise buildings in Europe and found that

retrofitting could lead to average savings of 28%.113 The study also found that retrofitting was

most cost-effective when done as part of a general refurbishment scheme.114

                                   b)      Encouraging Energy Efficiency in Buildings

        The building industry is characterized by a fragmented and non-integrated value chain.115

The incentives to achieve energy efficiency in buildings are split between different industry

participants and the interests of those with the most power to reduce energy use are often not

aligned with such incentives. This complexity of relationships and interactions between the

different players in the building industry presents one of the greatest obstacles to achieving

energy efficiency in buildings.

        The U.S. Department of Energy recommends a ―Collaborative Process Model‖ whereby

the different players in the building industry–including developers, architects, engineers, and

contractors–collaborate to vertically integrate the industry supply chain and thereby achieve

improved energy efficiency in buildings. However, vertical integration is viewed by the

participants to be time-consuming and costly, and as a result, the traditional industry

             See EEB Facts and Trends, supra note 99, at 31 fig. 22.
             Paul Waide et al., High-Rise Refurbishment: The Energy-Efficient Upgrade of Multi-Story Residences in
the European Union, at 34 (2006), available at pw_highrise.pdf (last
visited Nov. 18, 2008).
             Id. at 35.
             See EEB Facts and Trends, supra note 99, at 15 fig. 9.

                                                        Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

organization has prevailed.116 But ultimately, by implementing integration at earlier stages of the

building process, the Collaborative Process Model will both decrease the costs of integration and

increase the effectiveness of reducing a building‘s GHG emissions.117

                                  c)       Perceptions of Professionals in Industry

        Professionals in the building industry tend to overestimate the cost premium of making

buildings more energy efficient; the average premium estimate was 17%, whereas in reality, it is

less than 5% in developed countries (but possibly higher in emerging markets such as China,

India, and Brazil).118 In addition, construction professionals‘ perceptions of cost are skewed as

they focus only on the immediate costs of implementing green technologies and fail to consider

the long-term financial benefits based on lifecycle cost savings.119 Important also when

situating professionals‘ estimation of the costs associated with green building is the fact that in

all likelihood, such professionals will pass the additional costs on to the buyer.

                                  d)       Government Policy and Regulation

        The United Nations Environment Program (―UNEP‖)‘s Sustainable Buildings &

Construction Initiative (―SBCI‖) conducted a study on various governmental policy instruments

for reducing energy use and identified the most effective and economic options.120 In developing

a comprehensive GHG reduction strategy, Congress should consider how to best integrate these

programs into a broad national policy.

             John H. Reed et al., Who Plays and Who Decides: The Structure and Operation of the Commercial
Building Market, xii, 52-53 (2004), available at
highperformance/pdfs/who_plays_who_decides.pdf (last visited Nov. 18, 2008).
             EEB Facts & Trends, supra note 99, at 27 fig. 19.
             EEB Facts & Trends, supra note 99, at 18 figs. 11, 12.
             Id. at 31.
             Id. at 23 tbl. 1.

                                                         Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

        B.       California‘s Efforts: A Regulatory Case Study

        In constructing a comprehensive national plan to reduce GHG emissions, Congress

should consider existing models, including the regulatory schemes, which have emerged in

California. The national GHG plan should borrow from these models to require the maximum

reductions feasible in every state of the nation. It is also important that the national plan

encourage further regulatory innovations in states like California that wish to go above and

beyond the national GHG reduction requirements.

                                          1.      Statewide Efforts

        In the past several years, California has enacted several major measures to reduce GHG

emissions, including the 2006 Assembly Bill 32, a 2005 Executive Order, and a 2004 Air

Resources Board regulation targeting GHG emissions from passenger vehicles. The stated goal

of these efforts is to lower GHG emissions to 1990 levels by 2020, and then 80 percent below

1990 levels by 2050.121

        Assembly Bill 32, or the California Global Warming Solutions Act of 2006, requires the

state board to enact regulations to monitor and reduce statewide GHG emissions. It compels the

California Air Resources Board (―CARB‖) to adopt rules ―in an open public process to achieve

the maximum technologically feasible and cost-effective greenhouse emission reductions.‖122

Authorizing a wide range of possible types of regulations to meet its goals, it includes market-

             California Air Resources Board, Climate Change, available at (last
visited Nov. 4, 2008).
             California Global Warming Solutions Act, CAL. HEALTH & SAFETY CODE § 38500 et seq. (West 2006)

                                                         Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

based compliance structures and creates ―potential monetary and nonmonetary incentives‖ to

reduce GHG emissions.123

        In late June 2008, CARB issued a draft plan to meet the goals laid out in Assembly Bill

32. The draft plan recommends that approximately 80% of the emissions reductions be

accomplished through regulation, and about 20% from a cap-and-trade system, totaling a

reduction of 169 million metric tons by 2020, or a 30% reduction in California‘s carbon

footprint.124 Because commercial buildings are the second-largest contributor to California‘s

GHG emissions, the plan calls for improving their efficiency, as well as that of appliances and

residential buildings.125 The national plan should emulate this piecemeal approach to achieve

maximum reductions.

        In June 2007, CARB approved ―early action items‖ for businesses and institutions to

reduce their GHG emissions, providing guidance and protocols related to operational and

behavioral changes that can lower these organizations‘ GHG emissions. These measures

include: the Landfill Methane Capture Strategy, the Semiconductor Perfluorocarbon Emissions

Reduction Strategy (scheduled to be adopted by CARB on January 1, 2009), reduction of

emissions from consumer products, and SF6 reductions from non-electricity sector.126

        California‘s Landfill Methane Capture Strategy provides improved control of methane

emissions from landfills by requiring gas collection and control systems and establishing

statewide performance standards. Opportunities to increase energy recovery from landfill

             Lisa Weinzimer, Cal. Air Resources Board Issues Draft Plan To Cut State’s GHGs, Boost Renewables,
Efficiency, Global Power Report, July 3, 2008, at 33.
             Summary of Regulatory Measures that meet the narrowly-defined ―discrete early action‖ requirement,
available at (last visited Nov. 4, 2008).

                                                          Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

methane are also being explored.127 The Semiconductor Perfluorocarbon Emissions Reduction

Strategy will target gas emissions from the semiconductor industry, and will likely include

emissions standards, and reporting requirements.128 Combined, these efforts are expected to

reduce GHG emissions by 16 million metric tons.129

         California has also addressed green building directly in the case of schools. In 2000, the

Collaborative for High Performance Schools (―CHPS‖) developed a points-based incentive

program to promote the greening of school buildings.130 The CHPS standard is determined by

having schools fill out a scorecard on categories such as daylight, electric lighting, acoustics,

furnishings and finishes. In 2007, the CHPS standard had been adopted by 15 California school

districts and by at least 8 other states.

        In 2006, California passed Proposition 1D131 allocating $100 million to fund the building

of new green schools. In 2007, there were 10 CHPS buildings with another 18 in the pipeline.

The CHPS program has resulted in 20-40% reductions in energy and water consumption with

resulting reductions in operating costs and a 25% improvement in student performance. Each

year, 500 new schools are constructed across the United States in an effort to accommodate the

estimated 6% increase in school enrollment from 2003 to 2015. Some researchers propose a

government loan program (federal or state) to provide for the cost premium (calculated to be up

             Landfill Methane Capture, available at (last visited
Nov. 4, 2008).
             Proposed Regulation Order: Regulation To Reduce Emissions of Fluorinated Gases from Semiconductor
Operations, available at proposedreg.pdf (last visited
Nov. 4, 2008).
             Leo Kaye and Gennet Paauwe, California Environmental Protection Agency Air Resources Board, ARB
Staff Proposes to Triple Early Action Measures Required Under A.B. 32 (Sept. 7, 2007), available at
             See Collaborative for High Performance Schools website, (last accessed Nov. 12,
             Cal. Proposition 1D, Kindergarten-University Pub. Educ. Facilities Bonds Act (2006).

                                                          Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

to $3 per square foot) of new green/high performance schools.132 The schools could payback this

premium over 8 years from its operating cost savings of $44,000 from reduced energy and water

consumption.133 Further calculations suggest that a 10-year loan program would require $750

million net present value (in 2007) and would be budget-neutral after 18 years.134

        Finally, California has engaged in decoupling of the energy sector. In the traditional

utilities revenue model, customers pay energy bills according to their electricity or gas usage. As

such, utilities make money off energy wastage. Such a model provides an economic disincentive

for utilities to implement energy efficiency programs/systems.

        In 1982, California implemented its Electric Rate Adjustment (―ERAM‖) system

whereby state utilities providers‘ revenues are decoupled from energy sales. ERAM uses

standard rate-making procedures to predict energy sales and required revenue.135 Rather than

compute energy bills by multiplying the rate by the actual energy usage, utilities receive an

―authorized revenue‖ from a predetermined return on investments that takes into account

operating costs.136 In this way, utilities make money off energy efficiency. When income from

electricity/gas sales exceeds the authorized revenue, the utilities company places the excess

income into a balancing account. When income from energy sales is less than the authorized

revenue, the company draws money from the balancing account to reach its authorized revenue.

             Tyler Huebner & Jonas Ketterle, ―High Performance Schools for America,‖ in The Roosevelt Institution:
25 Ideas for Solving the Energy Crisis, 24 REVIEW OF POLICY RESEARCH 467, 467 (2007), available at _ketterle_green_schools.pdf
(last visited Nov. 28, 2008).
            Joseph Eto, Steven Stoft & Timothy Belden, The Theory and Practice of Decoupling Utility Revenues
from Sales, 16 UTILITIES POLICY 43, 48-49 (1997).
            Id. at 49.

                                                         Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

Energy efficiency initiatives in California decreased energy use in the state by 15% in 2003. 137

Half of this reduction was the result of utility-initiated energy efficiency programs, which were

in large part incentivized by decoupling systems.138 Although generally, electricity markets are

regulated by the states, national legislation could encourage the decoupling of electricity markets

by rewarding leading states, like California, for additional GHG emission reductions.

                                          2.      Localized Efforts

        California‘s efforts to reduce GHG emissions also include more localized campaigns. In

late 2006, Berkeley, California voters overwhelmingly passed Measure G, a bill mandating

reduction of the city‘s greenhouse gas emissions by 80% by 2050.139

        In 2005, activities in Berkeley emitted 634,798 tons of GHGs, an almost 9% drop from

2000. Of this, the commercial/industrial sectors contributed 27%, and residential buildings

contributed 26%. To further reduce GHG emissions, the measure outlines a ―long-term road

map‖ that will give guidance to residents, business and industry by requiring builders to use only

recycled and less GHG-emitting materials, and determining residents‘ consumption based on

factors like the kinds of cars they drive and the waste they generate.140

        Cities in other states have also shown leadership. Seattle has taken a market-based

approach in providing consumer rebates and grants for purchasing new technologies. Chicago

has taken a regulatory approach in establishing a new building code for electricity conservation.

Egy_Efficiency/CalCleanEng-English-Aug2006.pdf (last visited Nov. 28, 2008).
            Carolyn Jones, It Won’t Be Easy Being Green: Berkeley Sets Tough Course for Its Residents To Follow
To Help Reduce Emissions of Greenhouse Gases in City, S.F. CHRON., May 24, 2007, at A1.

                                                           Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

This new building code has been quite successful and voluntarily implemented by many

architects. Portland, Oregon, the nation‘s leading city in green building practices, not only has

the most LEED-certified buildings, but has furthermore implemented its own ―Portland LEED‖

system to meet US Green Building Council standards.141 Another city that has taken an active

approach to improving energy efficiency is Boulder, Colorado with its Green Points Building


        Although local land use issues have traditionally remained the province of the states and

not the federal government, a comprehensive GHG strategy will need to address these issues to

the full extent that is legally permissible. For example, some researchers propose a system of

construction cost rebates on the green cost premiums associated with meeting green building

standards.143 The government should set a standard by which building developers can qualify for

the rebate.144 To address the potential for fraud in the tax rebate program, the tax rebate could be

capped at 12%, a sufficient rebate level given that the green premium cost is usually less than

10%.145 The construction rebate program should also include the requirement of an independent

building audit as a prerequisite for qualifying for the rebate.146

              Jemilah Magnusson, The Top 10 Green Cities in the United States: 2005, 107 THE GREEN GUIDE 4
              Id. at 2.
              Scott Moore, ―Federal High-Performance Buildings Initiative,‖ in The Roosevelt Institution: 25 Ideas
for Solving the Energy Crisis, 24 REVIEW OF POLICY RESEARCH (2007), available at http://roosevelt (last visited Nov.
28, 2008).


                                                          Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

        In addition, the U.S. Department of Energy maintains a National High Performance

Buildings Database.147 The federal government should create a National Center for High

Performance Buildings to perform research on green building designs and increase awareness

and knowledge on improving energy efficiency and the greening of buildings. The No Child

Left Behind Act of 2001148 provides for funding of green design schools, as studies have

suggested that green buildings improve student performance. In 2001, Congress passed the

Healthy & High Performance Schools (―HHPS‖) Act149 as an amendment to the No Child Left

Behind Act, but the HHPS program was never funded.150 The federal government should fund

and expand the HHPS program under the No Child Left Behind Act. In addition cap and trade

programs on college campuses can significantly reduce the amount of emissions at these large,

publicly funded institutions.151

                         3.       Cost-effectiveness of California’s Regulations

        A recent study conducted by David Roland-Holst, an economist at the Center for Energy,

Resources and Economic Sustainability at the University of California, Berkeley details the

economic potential of well-structured green policies.152 Roland-Holst concludes that energy-

efficiency measures enabled California households to redirect their resources to other goods and

             U.S. Dept. of Energy, Energy Efficiency & Renewable Energy, Buildings Database, http://eere. (last visited Nov. 11, 2008).
             No Child Left Behind Act, 20 U.S.C. § 6301 et seq. (2001).
             Healthy & High Performance Schools Act, 20 U.S.C. § 7277 (2001).
             See Charles W. Schmidt, Reading, Writing, but No Arithmetic: Healthier Schools Legislated but
Funding Lags, 110 ENVTL. HEALTH PERSPECTIVES A-307 (2002), available at http://www.ehponline.
org/members/2002/110-6/spheres.html (last visited Nov. 28, 2008).
             Kristen Tullos & Balaji Narain, ―Capping Energy Use on College Campuses,‖ in 25 Ideas for Solving
the Energy Crisis, 1 THE 25 IDEAS SERIES 42, 42-43 (2007).
             David Roland-Holst, Energy Efficiency, Innovation, and Job Creation in California (2008), available at _10-20-08.pdf (last visited Nov.
18, 2008).

                                                    Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

services; this redirection of capital led to the creation of nearly 1.5 million jobs and increased

overall compensation in the state by $44.6 billion from 1977 to 2007.153 While substantial, the

potential economic effects of the aggressive carbon-reduction measures in the Act are even more

impressive, and if adopted on a national level, will provide much needed environmental and

economic stability.

       Research conducted by the California Air Resources Board (―CARB‖) also indicates that

implementation of the recommendations in the California Assembly Bill 32‘s household

appliances efficiency program will help sustain growth and enable the state to reap the full range

of economic benefits that come with the transition to a more sustainable future.154 CARB

utilized the Environmental Dynamic Revenue Assessment Model (E-DRAM), a macroeconomic

model that accounts for the flow of production, consumption, investment, and saving in response

to specified policies.155 The analysis indicates a substantial improvement over business-as-usual

economic growth, in 2020, by:156

             o   Increasing production activity by $27 billion.
             o   Increasing overall Gross State Product by $4 billion.
             o   Increasing overall personal income by $14 billion.
             o   Increasing per capita income by $200.
             o   Increasing jobs by more than 100,000.

       The economic potential of GHG legislation is unprecedented in the environmental area.

Industry experts believe that that green investors received a strong investment signal in the

passage of the Economic Recovery Act of 2008, which extended tax credits for wind energy,

SUPPLEMENT (2008), available at
analysis_supplement.pdf (last visited Nov. 18, 2008).
             Id. at ii.

                                                         Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

geothermal, biomass and other renewable energy projects.157 Significantly, the solar investment

tax credit, for utility scale solar projects, was extended for eight years. Venture capitalists

responded to US clean technology companies in Q3 in the form of a record breaking $1.6 billion

in new investments.158 The influx of capital represents a 71% increase over the same period last

year. California‘s success and data analysis shows that a comprehensive national GHG reduction

strategy will infuse the economy with new jobs and excite increased innovation and

entrepreneurship in business communities.

                                              4.       Summary

        As Frances Beinecke, President of the Natural Resources Defense Council explained,

―The whole world has been watching…as California takes the lead in developing a clean energy

market. California is an inspiration for all of us. Other states, the nation, and other countries

would do well to follow California‘s example.‖159

        California‘s efforts to combat climate change provide a framework applicable to the

entire country. Programs like Assembly Bill 32‘s household appliances efficiency program, the

decoupling of the electricity sector and the green schools program can be implemented on a

larger scale to lower the emissions from these sites and industries. It is clear that greenhouse gas

emissions from residential and commercial buildings are a significant source that must be

reduced. California has shown that government programs can effectively reduce emissions in

               Dawn Van Zant, U.S. Venture Capital Investment in Cleantech Companies Reaches Record $1.6 Billion
in Q3 2008 with a Surge in Later Stage Financings, 2008/10/us-venture-
capital-investment-in.html, Oct. 31, 2008, 7:33AM (last visited Nov. 18, 2008).
               Environmental Defense Fund, Global Warming Bill Clears California Assembly, Environmental leaders
commend 2006 legislature AB 32 Now Awaits the Governor’s Signature, Aug. 31, 2006, available at (last visited Nov. 18, 2008) (lauding California‘s passage of
the bill).

                                                   Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

these sectors and offers an example of how complementary niche regulatory programs can be

combined into an overarching effective GHG reduction policy.

                                       VI.     CONCLUSION

       Greenhouse gas concentrations in the atmosphere cause climate change that endangers

the health and welfare of the United States. Because the United States has historically produced

a significant portion of the world‘s GHGs, it is our responsibility to achieve carbon neutrality as

soon as possible. The Clean Air Act, which authorizes EPA to regulate air pollution, will require

regulation of GHGs emitted from industrial facilities, as well as commercial and residential

buildings. The Clean Air Act, however, is an inappropriate tool for regulating these unique gases

and sources. First, applying the Clean Air Act to GHG emissions would impose unduly

burdensome requirements on individuals, commercial property owners, and government

regulators in instances where GHGs are emitted from on-site energy generation. Second, by

using the Clean Air Act to regulate these sources, the EPA would miss important opportunities to

improve energy efficiency, and achieve significant overall reductions in GHG emissions, from

all residential and commercial properties. Therefore, EPA should advise Congress on the

creation of a new, comprehensive GHG regulatory scheme.

       Any effective GHG strategy will utilize existing cost-effective technologies to reduce

emissions from the commercial and residential sectors. In planning a national regulatory

scheme, Congress should learn from the current regulatory efforts of states and local

governments. In addition to adopting a keystone program such as cap and trade or a carbon tax,

Congress should also include additional programs aimed at GHG emissions from commercial

                                                   Comment from ELP, submitted to Docket No. EPA-HQ-OAR-2008-0318

and residential buildings, such as by decoupling the electricity sector or calling for green

building codes for federally funded institutions such as universities. These additional

complementary programs will increase the overall success of any national regulatory scheme to

reduce GHG emissions.