September LPDD Newsletter — Model Climate Laws Initiative

New LPDD Model Laws

This month, the LPDD team published a new model law on certifying new and substantially altered buildings to LEED Gold or Green Globe Level 3 certification level. This model ordinance would require that new non-residential and certain multifamily buildings with a gross floor area above 10,000 sf (or other size chosen by the municipality) be constructed to a standard that could achieve LEED Gold certification, Green Globe Level 3 Certification, or a comparable level from another rating program approved by the municipality. The project only must be “certifiable,” rather than actually certified, as the ordinance incorporates the standards of the rating program so that the municipality oversees compliance and enforcement directly.

This model also applies to substantial alteration or rehabilitation of buildings as well as additions exceeding the size threshold. Alterations are considered substantial if construction costs exceed 50% of the assessed value of the existing building.

This model was drafted by Victor Baltera, a partner at Sullivan and Worcester, with assistance from attorney Ashley Tan, both of the firm's Boston office. Peer reviewing was provided by Amy Turner, Director of the Cities Climate Law Initiative at the Sabin Center.

New External Resources

modelclimatelaws.org is being continually updated with new, external legal resources. Below is a selection of recently added resources:

Unlocking America's Energy: How to Efficiently Connect New Generation to the Grid: Following up on last year's FERC Order 2023, which changed how grid operators must manage their transmission queues to group, prioritize, and more speedily process interconnection requests, this August report from Grid Strategies and the Brattle Group identifies further options for interconnection reform. The interconnection approval process has become a major hurdle to advancing America's clean energy goals, and deploying the funding promised by the IRA. In many cases, a single interconnection queue cycle exceeds the total regional peak load, resulting in impractical engineering studies with unrealistic results, delaying processes and creating cost and schedule uncertainty. This report makes recommendations for interconnection reform organized around four key themes: adopting an interconnection entry fee for proactively planned capacity; implementing a fast-track process to utilize existing and already-planned interconnection capacity; optimizing the interconnection study process; and speeding up the transmission construction backlog.
Berkeley Gas Ban Being Replaced by Tax in Ballot Initiative: In November, residents of Berkeley, CA, will vote on a ballot measure that proposes taxing the owners of buildings of 15,000 square feet or larger based on the amount of natural gas their buildings consume each year. If passed, this would be the first tax in the country to target the use of a specific fuel source for buildings. The tax would charge large building owners $2.96 for every 100 cubic feet or 100,000 BTUs of natural gas used, a value based on the social cost of carbon. City officials estimate that the tax would apply to over 600 buildings in Berkeley and generate $26.7 million during its first year, an amount larger than the city’s annual sales tax revenue. Of those funds, 90 percent would go toward retrofitting homes and buildings in the city with electric HVAC and appliances, and 10 percent would go toward city administrative costs. The proposed tax responds to the Ninth Circuit's ruling against Berkeley's first-in-the-nation gas ban, which had previously set off a wave of gas bans in California and beyond before being struck down. This new approach promises to be more legally defensible.
New York's Proactive Grid Planning Proceeding: In August, the New York State Public Service Commission commenced a proceeding to evaluate new energy loads from transportation and building electrification to proactively identify and develop future grid infrastructure needs. In typical infrastructure planning studies, each individual utility identifies potential needs as they arise in their territory. However, the rate at which consumers are electrifying buildings and vehicles has the potential to outpace these existing grid planning processes. The new planning framework directed by the Commission is designed to proactively identify grid infrastructure needs to ensure the utilities expand the system in the most cost effective and timely manner. The Commission directed the major utilities to file a proposal for a long-term coordinated planning process to study and identify necessary upgrades to support electrification. In this proposal, the utilities will account for new electrification loads beyond the transportation sector, including, but not limited to, electrification of buildings, such as housing or industrial loads related to economic development that can similarly drive system upgrade needs.
Duke Energy's "Resource Acceleration" Green Tariff Option: On July 31, North Carolina regulators approved a controversial green tariff proposal from Duke Energy. Green tariffs, which allow customers to opt into a utility program that credits them with 100% renewable energy, face an uncertain future in states where high renewable targets are already in place. Because utilities apply customer's voluntary purchases to their own existing purchase requirements, the customer's purchase of green energy does not technically prompt any additional green energy to be built. Therefore, the customer's claims of contributing to the renewable energy transition -- the core environmental value of RECs -- are problematic in these cases. The tariff approved in North Carolina would blunt this criticism somewhat by allowing a two-year lag before green tariff purchases are counted towards the utility's regulatory obligation, at least for a portion of tariff participants. That nuance may allow some customers to claim that their purchase "accelerated" renewable development by two years. While this option is viewed as a marginal improvement over the status quo (especially since 80% of Duke's specific tariff customers will not be enrolled under this option), the concept may be useful exploring in other states given longer acceleration time horizons, or more complete coverage for enrolled customers.
California's Bidirectional EV Charging Bill: In August, the California Legislature approved a bill that gives state regulators the authority to implement a first-in-the-nation requirement to make electric vehicles capable of powering homes and the energy grid. The vast majority of EV models currently on the market don’t include this capability. SB 59 could supercharge manufacturers’ adoption of bidirectional charging by allowing the California Energy Commission to study and potentially mandate the technology. At the time of this writing, the bill awaits the governor's signature.

Spotlight on Equity: As part of Massachusetts' 2025 budget, the state has established a new Environmental Justice Trust Fund, previously called for under S. 2521 (2023). The Fund will receive monies from civil penalties obtained in judgments and settlements from state cases in the AGO’s Environmental Protection Division can be used to restore natural resources; investigate, remediate, or mitigate environmental pollution or harms in disadvantaged communities; and improve the health or well-being of disadvantaged communities.

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This update highlights and summarizes recent additions to the Legal Pathways to Deep Decarbonization (LPDD) website, which houses actual and model laws addressing the causes of climate change in the United States.

The Legal Pathways to Deep Decarbonization Model Law Project (LPDD-MLP) is a pro bono effort to draft model laws for use by legislators at the federal, state and local levels to support their efforts to achieve deep reductions in fossil fuel use and greenhouse gas emissions. The project is based on recommendations from the groundbreaking book Legal Pathways to Deep Decarbonization in the United States (Michael Gerrard and John C. Dernbach, eds., 2019). The work is supported by Columbia University's Sabin Center for Climate Change Law and Widener University Commonwealth Law School’s Environmental Law and Sustainability Center. Dozens of law firms and individual lawyers are contributing to this pro-bono effort as drafters, peer reviewers or in reaching out to policymakers.

Our website, modelclimatelaws.org, contains over 80 model laws that are a starting place for discussion and collaboration among elected officials, non-profit groups, and the private sector for enabling the U.S. to address climate change by reducing U.S. GHG emissions to zero by 2050 or earlier. The site includes several Top 10 lists for some of the key categories, like electric vehicles, PUC’s, buildings and other topics as a short-hand introduction. In addition, the site references hundreds of other actions that states and other governmental bodies have taken to move towards decarbonization more rapidly. By providing policymakers the tools to achieve deep decarbonization, the Project will help achieve a restructuring of the energy economy, thus alleviating the worst effects of climate change, which are disproportionately suffered by marginalized communities, while providing such positive benefits as economic security, social equity, and environmental justice (EJ).

Please contact us to talk about getting involved in drafting and peer reviewing legislation, to provide suggestions and feedback on the drafts and to talk about how we can help you support your climate change efforts.