INTRODUCTION - Legal and Financial Instruments that Support Renewable Installations on Public B

With the ever increasing threat of climate change, the desire to facilitate renewable energy installations is not a revolutionary phenomenon. The weighing of environmental benefits over the upfront financial costs of renewable energy has been an uphill battle in many countries in-cluding the country with the highest GDP in the world, the United States. To someone who is unfamiliar with contemporary climate law this may be a surprise yet, it is in fact true that the worlds number two emitter of GHG’s is failing at the federal level, to use its financial advantages in a way that would efficiently combat this problem . ¹

The United States government is not the only nation struggling to implement sound cli-mate policies at the national level. States like China, India, Brazil, and Canada, are also drag-ging their feet when it comes to implementing sustainable development policies that target their nation as a whole . However, the one commonality among all of the aforementioned States and ² really all States for that matter, is the ever expanding size of the megacities located within each of these individual regions. In today’s world, the economies and population size are growing at such a rate that the GDP of one of these megacities amounts to one third and in some countries one half of the nations over all GDP . The term megacities constitutes a metropolis reaching be³ -yond their territorial borders for example Los Angeles, extending it transit systems past San Diego into Tijuana, Mexico . In some regions such as sub-Saharan Africa, countries like Togo, ⁴

Doris, Elizabeth - Cochran, Jaqulin - Vorum, Martin. Energy Efficiency policy in the United States:Overview of

Trends at Different levels of government. National Renewable Energy Laboratory:Technical Report 2009.

There is currently no comprehensive policy strategy for energy efficiency in the United States. “Policies are con-ceived within narrow political constraints based on some specific need, and without a thorough consideration of the policies’ interaction with other policies. A strategic approach to improving energy efficiency in the United States would coordinate efforts across jurisdictions and sectors, as occurred under the National Action Plan for Energy Ef-ficiency.”

The International Energy Efficiency Scorecard. American Council for an Energy Efficient Economy. aceee.org/

portal/national-policy/international-scorecard.

Khanna, Parag. Connectography:Mapping the Future of Global Civilization p.293 City Building as State Building.

Random House Publishing, New York, New York 2016.

Khanna, Parag. How Megacities are Changing the Map of the World. April, 27, 2016.

Benin, Ghana, are becoming suburbs of the megacity Legos, to the extent that transit systems are being built between these places.

Some have argued that in order to accurately monitor sustainable development in today’s world it is arguably more important to understand the world stage in terms of these megacities and their regional location rather than by territorial boundaries . This is because in order to at⁵ -tract more commerce and connectivity, cities have a desire to adopt global value chains and at the moment the most popular value shared among all of the worlds megacities is sustainable de-velopment. In each of these megacities there are hundreds of learning networks dedicated to sustainable urbanization via technology and policy transfer between cities . Building zero emis⁶ -sion buildings and installing renewable technologies on existing buildings, is one of the most ef-fective courses of action to take in achieving sustainable development as buildings contribute to 1/3 of global GHG emissions . Local governments in and around these megacities have more ⁷ power than they appear to have regarding sustainable development based on the policies and methodologies they choose to enforce. Although the world’s cities appear to be increasingly ded-icated to sustainability, countries that rank the highest in terms of energy efficient buildings (Germany, Italy, Austria) are those that have national energy efficient requirements . By com⁸ ⁹ -paring and assessing the national, state, and local renewable energy laws currently in place in the US and the EU, this paper aims to determine whether it is a more fast and lucrative means to achieving sustainable development goals via laws and polices at a local level than approaching it legally from national level.

Swanson, Ana. Six Maps that Will Make You Re-think the World. Washington Post. April, 29, 2016.

See, 4. Khanna, Parag.

UNEP Report. Buildings and Climate Change Summary for Decision-Makers. “It is estimated that at present,

buildings contribute as much as one third of total global greenhouse gas emissions, primarily through the use of fos-sil fuels during their operational phase”

International Energy Efficiency Scorecard 2016. American Council for and Energy Efficient Economy. aceee.org/

portal/national-policy/international-scorecard.

International Energy Efficiency Scorecard. American Council For an Energy Efficient Economy. aceee.org/portal/

national-policy/international-scorecard.

A. Comparative Analysis of Building Laws in the U.S and the EU: United Kingdom and California

The intention of this paper is to delve deep into the current structure of the legal and finan-cial institutions in place, that are dictating building standards and renewable energy installations on public buildings in both the U.S. and the EU. Federal and state level legal measures will be taken into account in regards to California and compared to the EU legislation implemented in the United Kingdom. This paper will also look at local government policies and issue affecting renewable installations on public buildings in the major cities of both the United Kingdom (Lon-don) and California (Los Angeles). While this paper primarily looks at renewable installations on public buildings from a legal standpoint, it will also take note of the policy initiatives currently in place, in order to paint a clear picture of the both the hard law and soft laws regarding the per-formance of public buildings.

The paper will begin by comparing EU legal measures on the energy performance of buildings with federal legal measures in the US and then zone in on the legal measures in the UK and California. The primary take aways from this comparison will be; determining the laws and policies in California and the UK that promote these installations and those that hinder them. In addition, Where national laws come up short, the paper will look at the actions local city gov-ernments within California and the UK, have taken promote these installations themselves. The focus is on public buildings specifically to determine the extent to which governments are taking legal action to enforce sustainable building laws on their own property and thus, leading by ex-ample.

By looking at and comparing the challenges that face renewable installations on public buildings in the U.S and the EU and subsequently the U.K. and California, a legal solution is aimed to be reached that will promote improvements in sustainable building laws. Those suc-cessful laws (or policies) will be identified by the extent to which they have resulted in sustain-able renovations of existing buildings as well as sustainsustain-able design of new buildings. The goal of environmental finance is to bring the greatest environmental benefit to the greatest number of

people at the lowest possible cost. Therefore it would be useful to examine the quality/effective-ness of sustainable building laws, with the goal of environmental finance in mind.

B. Sustainable Building Features: Including Renewable Energy and Building Design Solar energy installation in the U.S. experienced a record breaking increase of 43% during the second fiscal quarter of 2016. This rising popularity in the solar industry in the non-residen-tial sector, is attributed to major state markets are transitioning toward more diversity in types of project development . Self-consumption projects that avoid system-size limits set under net me¹⁰ -tering programs and new community solar programs are coun-tering continued weakness in the non-residential rooftop solar. Most notably, community solar programs in California and the Northeast are on track to drive over 100 MWdc of community solar for the first time ever on an annual basis . The non-residential sector recognizes the benefits of solar installations not only ¹¹ for the fact that it is environmentally clean and can cut energy cost, but also because the abun-dance of sunlight makes solar a practical investment in that it will not be depleted. While some regions of the world are certainly sunnier than others, all regions have the capacity to generate power from solar energy.

Unfortunately, solar technology does have its draw backs, the primary one being reliability.

Solar energy is unreliable in the sense that access to sunlight is intermittent, so to the extent that the weather is unpredictable, so too is the power to be generated by solar panels . There are bat¹² -teries that can store solar energy but they are quite costly and when it comes to renewable energy projects, cutting cost is essential. In Europe, many countries with less annual sunlight have pri-oritized investments in wind farms over solar, making wind one of the more popular forms of renewable technology in the EU . Like solar however, wind farms face similar intermittency ¹³

Solar Market Insight Report Q3 2016 Executive Summary.

http://www.seia.org/research-resources/solar-market-10

insight-report-2016-q3.

See, 10. SEIA Executive Summary.

Maehulm, Mathis. Solar Energy Pros and Cons. energyinformative.org/solar-energy-pros-and-cons/#intermittent.

May 12, 2014

Wind In power: 2015 European Statistics. The European Wind Energy Association. windeurope.org/wp-content/

upload/files/about-wind/stastics/EWEA-Annual-Statisitcs-2015.pdf

problems in that, when wind patterns are unpredictable so is the production of energy it gener-ates. This is where the benefit of examining Geothermal installations comes in because unlike wind and solar, the power output of a geothermal power plant can be accurately predicted. Geo-thermal energy can therefore meet base load energy demands where as weather dependent re-newable technologies, cannot. One concern about geothermal energy is that it has been linked to some GHG emissions such as suffer dioxide and silica emissions . While significantly less ¹⁴ harmful than emissions associated with coal/fossil fuels, geothermal energy still receives criti-cism because of this. So what solar and wind lack in reliability, geothermal makes up for and what geothermal lacks in terms of being emission free, solar and wind make up for. Together these three technologies equate the perfect renewable energy investment for public buildings in terms of reliability and cleanliness.

Maehulm, Mathis. Geothermal Energy Pros and Cons. energy informative.org/geothermal-energy-pros-and-cons/

June, 01, 2013

II: LEGISLATION CONCERNING THE ENERGY PERFORMANCE OF BUILD-INGS

A. The European Legal System:Brief History of Sustainable Building Laws

Prior to the 1999 Treaty of Amsterdam, the objective of sustainable development was not as much of a priority as it is today, in the European Union. This treaty stressed the necessity for ¹⁵ sustainability and environmental protection by including these objectives into article two of the EC treaty. By 1998, the Commission recommend to the European Council that environmental ¹⁶ concerns be inserted in to all policies within European institutions via the Fifth Community Ac-tion Programme on the Environment entitled, Toward Sustainability. Article 174-176 of the EC Treaty, explicated the Community’s competence in the implementation of environmental legisla-tion by introducing; the principle of preventative aclegisla-tion, the stipulalegisla-tion that polluters should pay, co-decision legislative procedure, and the ability of Member States to introduce more stringent environmental measures than those standards provided by the EU. When it comes to the inter¹⁷ -pretation of environmental cases in the EU, the European Court of Justice (ECJ) invokes the pre-cautionary principle laid out in article 174 section 2 of the EC Treaty, in conjunction with the polluters pay principle and the principle that correction should occur at the source. In the EU ¹⁸ there are various types of legislative acts that the Union can impose upon Member States, creat-ing rights and obligations that each state must comply with. The legislative acts that are adopted jointly by the European parliament and Council can take the form of either, directives, regula-tions, or decisions. Depending on the nature of each of these legislative acts, they are designed to be applicable to each Member State regardless of their legal system. There is no gradation ¹⁹ of importance between regulations, directives, or decisions, as compliance with each of these

Rawworth, Phillip. European Union Law Guide. Volume 7, Part XIX, p. 38:2. Thompson Reuters 9/2016.

Rawworrth, Phillip. European Union Law Guide. Volume 7, Part XIX, p. 38.2. Thompson Reuters 9/2016.

The Single European Act. Articles 174-176. 1987

Robinson, Nicholas, A. International Environmental Legal Trends: Factors Shaping the Practice of Environmental

Law. p. 527, 531

Rosas, Allan - Armati, Lorna. EU Constitutional Law: An Introduction. p.49. Oxford and Portland, Oregon,

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forms of legislation on the part of Member States is obligatory . However, the ways in which ²⁰ Member States are required to apply each of the forms of legislation, is where the true distinction lies.

Of the three forms of legislation, regulations have the greatest direct impact because they are directly applicable in the domestic legal order of each Member State . This means that re²¹ -gardless of conflict that the regulation has with domestic law, it must be put aside so that the reg-ulation may be applied. On the other hand, Directives while still binding in their entirety, the results to be achieved from this legislative act constitutes an adoption of measures that are con-sistent with the domestic law of each member state . What this means is that directives lay out a ²² number of measures that are binding and must be complied with, but it is up to each Member State to decide how to apply these measures in a way that is complementary to their domestic legal system. There is a deadline for compliance with each directive that is issued and only when a Member State fails to apply the measures at the prescribed deadline, does the directive become directly applicable. Decisions like regulations are binding in their entirety, however they may only apply to a specific set of people and therefore do not share the broad nature of regulations and directives . ²³

The setting of norms, standards, and prohibitions in EU environmental legislation can take the form of target standards, performance standards, and specification standards . While ²⁴ target standards are not always binding and do not directly regulate industry, they do guide member states into the direction of long term environmental goals and obligate Member States to comply by establishing limits on specific types of pollutants. The targets that are most related to the energy performance of buildings are the 2020 targets where 20% of consumption in the EU comes from renewable sources and GHG’s are reduced by 20%. The 2012 Energy Efficiency

Rosa, Allen. Armati, Lorna. EU Constitutional Law: An Introduction p.50. Oxford and Portland, Oregon, 2012.

Regulations, Directives, and Other Acts. European Union Law. europa.eu/europan-union/law/legal-acts

Regulations, Directives and Other Acts. European Union Law. europa.eu/european-union/law/legal-acts

Rosas, Allen. - Armati, Lorna. EU Constitutional Law:An Introduction. Oxford and Portland, Oregon. 2010 p.50

Economidou, Marina. Energy Performance Requirements for Buildings in Europe. RHEVA Journal, March 2012.

p. 16-18.

Directive (EED) was the legislative result of this 2020 target, as it is referenced consistently throughout the document. Performance standards are more binding in that, they prohibit certain poor quality conditions such as emissions standards which, apply to buildings as well as vehicles, waste, and other sectors. Specification standards include requirements for best available tech-nology (BAT) and best available techtech-nology not entailing excessive costs (BATNEEC). Direc-tives that establish these types of standards are often used to establish standards for use by Mem-ber State regulators . On the basis of the polluters pay principle include energy charges and tax²⁵ -es, non-compliance fees and performance bonds are enforcement incentives used by Member States that can take various forms.

The performance based requirements in building codes have been increasingly become more stringent in the past decade but a number of Member States began instituting thermal per-formance requirements for building codes much earlier. Some Scandinavian countries have had performance requirements for buildings dating back to the mid 1940’s and other Member States began to follow suit during the 1970’s oil crisis . These 20th century building codes constituted ²⁶ a prescriptive based approach to energy consumption in that, they focused on specific elements of a building rather than focusing on the building as a whole. The shift from a prescriptive based approach to a performance based approach occurred when the Energy Performance of Buildings Directive 2002/91/EC was introduced. The performance based requirements for new buildings vary from Member State to Member State depending on the definitions and calculation methods each country chooses to use. The setting of building code requirements with legally based per-formance targets are typically expressed by an absolute value (kilowatt hours) or on a percentage improvement requirement . ²⁷

The non-domestic new buildings code requirements in the UK apply the latter via the Target Carbon Dioxide Emission Rate (TER). TER is based on achieving a percent reduction in

Rawworth, Phillip. European Union Law Guide Volume 8, p. 41C-55. September, 2016.

Economidou, Marina. Energy Performance Requirements for Buildings in Europe. RHEVA Journal. March 2012.

Table 2 p. 16.

Economidou, Marina. Energy Performance Requirements for Buildings in Europe. RHEVA Journal. March,

2012. p. 17.

CO2 emissions over a notional building of the same size and shape. To address environmental health in addition to energy requirements, many Member States have instituted performance re-quirements for ventilation, including technical rere-quirements for heat recovery. This is because insufficient ventilation leads to both energy wastage and poor air quality and in the UK, they have introduced requirements to limit the air tightness of buildings; Maximum n50=10 m³/h m² . ²⁸

In 2009 the 2020 targets were enacted via the Climate and energy package, designed to facilitate the reduction of energy consumption (one of many of the EU’s main Objectives) . Set ²⁹ in 2007 by EU leaders, the targets indented to help meet the EU’s international commitments to the Kyoto Protocol, a treaty that pertains specifically to the threats of climate change. The main legislative instruments that are related to the 2020 targets include; the energy strategy 2010 which defines energy priorities for the next 10 years (including measures on the energy perfor-mance of buildings), and the 2012 Energy Efficient Directive which, establishes a common framework of measures that promote energy efficiency in each Member State (amending direc-tive 2009/125/EC and 2010/30/EU). The latter Direcdirec-tive addressed the fact that the measures outlined the previous directives, would be insufficient in meeting 2020 targets and there for must be amended to include more ambitious measures, including those related to the energy perfor-mance of buildings . Since the EU regulation of the energy efficiency of buildings is based on ³⁰ directives rather than regulations, there implementation of the measures will slightly vary from Member State to Member State. While the 2012 Directive does set minimum requirements for energy effect standards for new and existing building stock, building energy codes are developed

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