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January 21, 2021

Stroock Client Alert

By: Jeffrey R. Keitelman, Kim Pagotto, Matthew J. Davis, Raymond "Rusty" Pomeroy II

As a follow up to our prior Client Alert (available here), on January 1, 2021, the DC Department of Energy and Environment (“DOEE”) published a Notice of Emergency and Proposed Rulemaking regarding the establishment of the 2021 Building Energy Performance Standards (“BEPS”).

Background:  The District of Columbia (the “District”) has implemented a series of measures with the goal of addressing climate change.  Ultimately, the District aims to reduce greenhouse gas emissions (“GHG”) and energy consumption by fifty percent (50%) by 2032.  In 2018, the District enacted the Clean Energy DC Omnibus Act of 2018 (the “Energy Act” or the “Act”).  The Energy Act was designed to help the District attain some of its goals with respect to addressing climate change.  The Energy Act obligates the DOEE to establish BEPS.  BEPS are energy standards that buildings must comply with pursuant to District law.  BEPS are just one method by which the District hopes to accomplish its GHG and energy consumption goals.  The DOEE is required to establish BEPS every six (6) years, beginning January 1, 2021.  

Proposed Rule:  The proposed BEPS rule (“BEPS Rule”) is available here.[1]  A guide to the proposed BEPS is available here.  The BEPS Rule groups buildings into categories based on use, and establishes an Energy Star Score or Source EUI (energy use intensity) Score (collectively, “Energy Score”) with which buildings must comply.  As an example, buildings that are categorized as “Office” must have an Energy Star Score of 71 or better (or, if such a building is not capable of receiving an Energy Star Score, then such building must have a Source EUI score of 153.7 kBtu/ft2 or better).  As an additional example, buildings that are categorized as “Mixed Use Property” must have a Source EUI score of at least 229.4 kBtu/ft2. 

Compliance:  As of January 1, 2021, buildings of 50,000 sq. ft. or more are obligated to comply with the BEPS.  If a building is not in compliance with the applicable Energy Score requirement as of January 1, 2021, then the building owner must enter into a “compliance pathway” and bring the building into compliance with the applicable Energy Score prior to the end of a five (5)-year compliance cycle.  Alternatively, an owner of a building that does not comply with the applicable Energy Score requirement may request a variance for the building by submitting a formal request through DOEE’s online BEPS portal by August 1, 2021.  The variance request must include evidence that the building meets a special circumstance described in the BEPS Rule.  A building owner who fails to bring the building into compliance by the end of the five-year compliance cycle, or obtain a variance, may be subject to significant penalties.[2]

Comments:  The BEPS Rule is open to public comment.  Comments to the proposed BEPS Rule must be received within thirty (30) days of the publication of the proposed BEPS Rule and should be clearly marked “Public Comments: Establishment of the 2021 BEPS” and filed with DOEE, Benchmarking, 1200 First Street, N.E., 5th Floor, Washington, DC 20002, Attention: Building Performance and Enforcement Branch; or e-mailed to info.BEPS@dc.gov.  All comments are treated as public documents and will be made available by DOEE for public viewing.

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Stroock’s national team of accomplished real estate lawyers is highly experienced in the Energy Act and other similar measures such as New York City’s Climate Mobilization Act. Our team of specialists can help you assess the implications of these measures on your buildings, assist with the process of developing and submitting comments, and help you navigate the Act’s requirements to provide you with a clear path to achieve your business objectives. 

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For More Information:

Jeff Keitelman

Kim Pagotto

Matthew J. Davis

Raymond "Rusty" N. Pomeroy II

[1] To view the text of the proposed BEPS Rule you must click on “View text” in the “Notice File” portion of the linked website.

[2] See our prior Client Alert for more information regarding compliance pathways, compliance cycles, and penalties for non-compliance.

This Stroock publication offers general information and should not be taken or used as legal advice for specific situations, which depend on the evaluation of precise factual circumstances. Please note that Stroock does not undertake to update its publications after their publication date to reflect subsequent developments. This Stroock publication may contain attorney advertising. Prior results do not guarantee a similar outcome

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