Recent Trends, Current Uses, Legal Issues and New Business Opportunities with the ASTM Building Energy Performance Assessment (BEPA) Standard

Recent Trends, Current Uses, Legal Issues and New Business Opportunities with the ASTM Building Energy Performance Assessment (BEPA) Standard

Mark Bennett, Leanne Tobias and David Freeman   By Mark Bennett, Leanne Tobias and David Freeman, Attorneys at Law

ASTM's 2011 Building Energy Performance Assessment standard (BEPA) is a landmark development for the measurement of energy performance in commercial buildings. In this article, Mark J. Bennett, Leanne Tobias and David J. Freeman review the drivers leading to the creation of BEPA, summarize the standard's key provisions and uses, discuss some of the legal issues presented by BEPA, and identify the business opportunities emerging from its adoption. They write:

III. ASTM's Building Energy Performance Assessment (BEPA) Standard

ASTM's BEPA standard can be utilized by all building types with the exception of one- to four-family housing. BEPA is designed to standardize the collection and compilation of building energy performance data, its analysis, and the development of reports for commercial and multi-family properties on a more rigorous, consistent and transparent basis than previously available.

A. BEPA Analyses

Analyses generated by the BEPA process include:

   Historical energy performance reports encompassing one to three years of data. The standard specifies that performance tracking date back to the most recent major building renovation, if performed less than three years previously. BEPA requires the collection and evaluation of at least one year of data. By developing a protocol that supports the collection of up to three years of data, BEPA encourages the construction of more accurate energy models than are typically encountered. The widely used Energy Star system, for example, relies on one year of data.

   Energy performance and energy use intensity (EUI) scenarios under average, upper limit (less energy efficient) and lower limit (more energy efficient) conditions. Energy performance reports track total building energy usage, while EUI reports measure property energy usage per square foot per year. Modeling is required to incorporate historical weather data (expressed as heating degree days and cooling degree days), normalized over a 10 year period; building occupancy over the analysis period; building operating hours; and other causal factors deemed relevant by the consultant performing the analysis. The BEPA process relies on multiple regression analysis, incorporates a more robust array of independent variables than typically encountered, and employs a more sophisticated modeling process to explain building energy performance.

   Building energy cost scenarios, under average, upper limit and lower limit conditions. Cost scenarios employ monthly expenditure data to develop price estimates of cost per thousand British thermal units (kBtu) for each form of energy utilized in the building. Cost multipliers are then used to calculate amounts spent for each energy source under average, upper limit (less energy efficient) and lower limit (more energy efficient) conditions. The process yields reliable energy expenditure profiles for the subject building under more favorable, average and less favorable energy usage conditions.

   Pro forma assessments of building energy performance, energy use intensity and cost. In a final step, average or actual (if within 15% of modeled averages) data are then used to provide reliable pro forma assessments of building energy use and cost that are designed to remove the bias of independent variables such as historic weather, occupancy and operating hours.

B. BEPA Process

The BEPA process incorporates five steps, the protocols for each of which are detailed extensively in the standard:

   Site visit, to observe the building during a walk-through; conduct interviews; and conduct records reviews not previously provided to the energy consultant.

   Interviews, to be conducted with the building owner, operator and/or key site manager at the building. Interviews are to be structured to collect supporting information, fill in data gaps, confirm building operating characteristics, and verify building energy systems.

   Records collection, to be undertaken to assemble and compile the records necessary to conduct the BEPA. These records must be readily available, practically reviewable, and able to be obtained from its source within reasonable time and cost constraints.

   Records review and analysis, to be undertaken under a carefully designed protocol relying on multiple regression analysis under average, upper limit and lower limit conditions.

   Report, to be written according to a recommended content and format protocol, and to include appropriate supporting documentation described in the standard. If documentation is eliminated, the reasons for elimination are to be identified in the report.

C. Qualified Consultants

The BEPA standard recommends the appropriate credentials for consultants qualified to conduct building energy performance assessments. A qualified consultant possesses the education, training and experience necessary to meet the requirements of the standard and exercise professional judgment to develop opinions and conclusions. Relevant experience with respect to the standard means having knowledge of building systems and components that consume energy and of statistical analysis. It is recommended that the qualified consultant have a professional designation in engineering or architecture, or demonstrated experience with building energy systems. Necessary experience should be commensurate with the type of building and the scope of work.

Mark J. Bennett is Senior Counsel and leads the Climate Change Practice at Miller Canfield. Mr. Bennett focuses his practice on carbon finance, renewable energy capital formation and green building & sustainable development. With over 20 years of experience in environmental due diligence, Mr. Bennett is widely recognized as an expert in incorporating sustainability risk and opportunity due diligence into real estate and commercial transactions. He is the Vice Chair of the American Bar Association's Energy & Environmental Markets Finance Committee and served as a member of ASTM's Building Energy Performance Assessment Task Group.

Leanne Tobias is founder and managing principal of Malachite LLC, a green real estate advisory firm that specializes in finance and investment; project team assembly and management; certification support; portfolio and project management; and strategy, policy development and research. A LEED Accredited Professional, Ms. Tobias has over 20 years of experience in institutional real estate investment. She has served as a real estate advisor to the U.S. government on building energy efficiency, is a member of the U.S. Environmental Protection Agency's Environmental Finance Advisory Board, and served as member of ASTM's Building Energy Performance Assessment Task Group. Ms. Tobias is the author of Retrofitting Office Buildings to Be Green and Energy-Efficient, widely cited as the authoritative guide to green building retrofits.

David J. Freeman is a Partner and Chair of the Environmental Practice Group in the New York office of Paul Hastings LLP, an international law firm with 18 offices worldwide. His practice focuses on representing buyers and sellers of property, assisting in brownfield redevelopment, litigation regarding Superfund and other hazardous waste cleanups, and counseling clients on sustainability and green buildings projects. He has written and spoken extensively on environmental issues. He is a member of the Board of Trustees and Vice Chair of the New York League of Conservation Voters Education Fund; President of the New York City Brownfield Partnership; and Co-Chair of the New York State Bar Association's Committee of Hazardous Waste/Site Cleanup. He is listed in Chambers & Partners' Client's Guide to America's Leading Lawyers for Business, Marquis' Who's Who in American Law, and New York Super Lawyers.

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Environmental Law Practice Guide Ch. 17D, Green Buildings and Sustainable Development (Michael B. Gerrard ed., Matthew Bender)

Frank P. Grad, Treatise on Environmental Law § 1A.15, Green Buildings (Matthew Bender)

Powell on Real Property® Ch. 78B, Green Buildings (Michael Allan Wolf ed., LexisNexis Matthew Bender)

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