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.
11
Maehulm, Mathis. Solar Energy Pros and Cons. energyinformative.org/solar-energy-pros-and-cons/#intermittent.
12
May 12, 2014
Wind In power: 2015 European Statistics. The European Wind Energy Association. windeurope.org/wp-content/
13
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/
14
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.
15
Rawworrth, Phillip. European Union Law Guide. Volume 7, Part XIX, p. 38.2. Thompson Reuters 9/2016.
16
The Single European Act. Articles 174-176. 1987
17
Robinson, Nicholas, A. International Environmental Legal Trends: Factors Shaping the Practice of Environmental
18
Law. p. 527, 531
Rosas, Allan - Armati, Lorna. EU Constitutional Law: An Introduction. p.49. Oxford and Portland, Oregon,
19
2010.
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.
20
Regulations, Directives, and Other Acts. European Union Law. europa.eu/europan-union/law/legal-acts
21
Regulations, Directives and Other Acts. European Union Law. europa.eu/european-union/law/legal-acts
22
Rosas, Allen. - Armati, Lorna. EU Constitutional Law:An Introduction. Oxford and Portland, Oregon. 2010 p.50
23
Economidou, Marina. Energy Performance Requirements for Buildings in Europe. RHEVA Journal, March 2012.
24
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.
25
Economidou, Marina. Energy Performance Requirements for Buildings in Europe. RHEVA Journal. March 2012.
26
Table 2 p. 16.
Economidou, Marina. Energy Performance Requirements for Buildings in Europe. RHEVA Journal. March,
27
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 at the national level, adopted at the state level and then enforced by local governments. In order for the directive to be effective, Member States must meet the minimum requirements for the
Economidou, Marina. Energy Performance Requirements for Buildings in Europe. RHEVA Journal. March
28
2012. Table 2 p. 20.
Parejo-Navajas, Teresa. A Legal Approach to the Improvement of Energy Efficiency Measures For the Existing
29
Building Stock in the United States Based on the European Experience. Seattle Journal of Environmental Law.
Volume 5 Issue 1, Article 14. May, 31, 2015. p.375
DIRECTIVE 2012/27/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 25 October 2012
30
on energy efficiency, amending Directives 2009/125/EC and 2010/30/EU and repealing Directives 2004/8/EC and 2006/32/EC. OJ L 315/1, 14.11.2012.
ergy performance of buildings by transposing them into their domestic legal system with either equal or more ambitious standards. 31
In regards to public buildings specifically, Article (5) of the Directive 2009/28/EC on the promotion of energy efficiency, required Member States to ensure that new public buildings that are subject to renovation must lead by example in the use of RES-H projects. Directive 32 2010/31/EU sets requirements for intelligent calculation of energy consumption metering sys-tems for new buildings and the renovation of existing buildings. Members must insure that in-stallations are optimized and cost effective, ensure that all new buildings are nearly zero energy buildings by 2020 and for public buildings by 2018 . In the year prior, the 2009/72/EC directive 33 concerning the common rules for the internal market in electricity states in Annex I that, “Mem-ber States shall encourage the use of intelligent metering systems whenever a building is con-structed. Further Member States must encourage the installation of active control systems such as automation control and monitoring systems.” The directive also required that Member 34 States inspect heating and air conditioning systems older than 15 years with regards to their en-ergy performance, and finally that Member States must implement Enen-ergy Performance Certifi-cate schemes accordingly with the requirements outlined by the directive. The commission dele-gated Regulation EU No 244/2012 established a comparative methodology framework for calcu-lating cost optimal levels of minimum energy performance requirements for buildings and build-ing elements . As previously mentioned, Directives 2009/25/EC and 2010/30/EU both consti35
Building Codes for Energy Efficiency, EPA (Mar. 27, 2015), epa.gov.
31
DIRECTIVE 2009/28/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 23 April 2009 on
32
the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC. Article (5). OJ L 140/16, 5.6.2009.
DIRECTIVE 2010/31/ EU of the European Parliament and of the Council on the energy performance of buildings.
33
Article 9 (a). OJ L 153/13, 18.6.2010.
DIRECTIVE 2009/72/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 13 July 2009 con
34
-cerning common rules for the internal market in electricity and repealing Directive 2003/54/EC. OJ L 211/55, 14.8.2009 Article (9) Nearly-Zero Buildings.
COMMISSION DELEGATED REGULATION (EU) No 244/2012 of 16 January 2012 supplementing Directive
35
2010/31/EU of the European Parliament and of the Council on the energy performance of buildings by establishing a comparative methodology framework for calculating cost-optimal levels of minimum energy performance require-ments for buildings and building elerequire-ments. OJ L81/18, 21.3.2013.
tute legislative measures regarding the energy performance of buildings. Yet since the Directive 2012/27/EU energy efficiency directive amends the aforementioned two, the next section looks at this particular directive more closely.
B. Directive of the European Parliament on Energy Efficiency: United Kingdom