Statewide energy codes are important for several reasons—not the least of which are reduced energy consumption, mitigated greenhouse gas emissions, minimized building operational costs, and improved climate resilience. Yet, at the time of this writing, ten states do not have a statewide commercial energy code. 

The concept of "home rule"

In general, when a state does not establish and maintain an energy code, it is because the legislature instead allows "home rule" by local governments. This is a term that refers to the authority designated to local governments or municipalities to adopt and enforce their own building energy codes. Home rule allows local jurisdictions to have a degree of autonomy in setting and implementing regulations that meet the specific needs and priorities of their communities.

In some cases, state governments establish a baseline energy code that serves as a minimum standard for all jurisdictions within the state. However, some states grant home rule powers to local governments, enabling them to adopt more stringent codes tailored to their unique circumstances. This approach recognizes that local conditions, climate, and community priorities can vary—thus allowing local jurisdictions to have a say in setting energy efficiency standards can lead to more effective and context-appropriate regulations.

(Conversely, some states explicitly prohibit local jurisdictions from establishing regulation that is more stringent than the state-level code.)

The emergence of Building Performance Standards

The "home rule" concept underscores the importance of tailoring regulations to local needs while still promoting energy efficiency and sustainability objectives. It recognizes that a one-size-fits-all approach may not be suitable for all regions and communities within a state. 

To this end, Colorado serves as an interesting case study. The Centennial State does not have an energy code but does allow home rule. As such result, a number of cities—namely Boulder, Denver, Aspen, and most recently Fort Collins—have either passed or are considering some form of an outcome-based energy policy known as a Building Performance Standard. 

Building Performance Standards (BPS) are regulatory measures that aim to improve the energy efficiency (and other related outcomes) of a jurisdiction's building stock. The primary goal of BPS is to set specific performance targets for buildings, encouraging owners and developers to meet or exceed these standards. 

Here is how BPS typically works

The specific details and implementation of BPS can vary by region and jurisdiction. The following is a quick primer, offering ten distinct aspects of a establishing and implementing a BPS—with examples for each:

1. Performance Targets

BPS often define specific targets related to energy efficiency; however, such a standard may also address water usage, greenhouse gas emissions, and other environmental or sustainability criteria.

Example: Through the use of its BPS, the City of Denver is aiming for 40 percent greenhouse gas (GHG) emission rate reduction by 2025; 65 percent by 2030; and 100 percent by 2040.

2. Applicability

BPS can apply to new construction, major renovations, or existing buildings. Some standards may focus on specific building types or sizes.

Example: The State of Washington will have a BPS implemented by 2026, at which point compliance will be required for all commercial and multifamily projects (with some exceptions) over 220,000 square feet. By 2027, projects at 90,000 square feet or more must comply. By 2028, the square footage requirement drops to 50,000 square feet. New construction, major renovations, and existing buildings will be required to comply.

3. Measurement and Verification

BPS often involve measurement and verification protocols to ensure that buildings meet the specified performance targets. This may include regular inspections, energy audits, and/or data reporting.

Example: The State of California has a BPS that includes reporting protocols to ensure that buildings meet a conservation requirement every 5 years and achieve a minimum improvement requirement every 10 years. Measurement and verification occurs in the form of auditing and retro-commissioning.

4. Compliance Mechanisms

Building owners and developers are required to demonstrate compliance with the established standards. Non-compliance may result in penalties, fines, or other enforcement measures.

Example: In the City of Boston, failure to comply with the BPS' carbon emissions requirement during the annual assessment will necessitate that owner make Alternative Compliance Payments (ACP) to mitigate residual GHG emissions. The current ACP fee is $234 per metric ton of carbon equivalent per year - subject to change every five years. 

5. Flexibility and Innovation

BPS may allow for flexibility in meeting standards, encouraging innovation in building design and technology. This could involve the use of renewable energy sources, advanced building materials, or other sustainable practices.

Example: The District of Columbia offers four basic compliance options:

• Performance path: reduce "normalized site EUI" by 20 percent;
• Prescriptive path: applies to buildings with a site EUI savings less than 20 percent. Owners may implement cost-effective energy efficiency measures as determined by a certified energy professional (package must achieve minimum of 25 percent site EUI savings);
• Standard target path: for property types with standards more efficient than the national median, achieve the standard.
• Alternative compliance paths: allows an owner to apply to follow an ACP with special criteria.

6. Incentives and Support

Governments and regulatory bodies may provide incentives or support for those who exceed the minimum standards. This can include tax incentives, grants, or other financial rewards.

Example: Early adopters in the State of Washington who bring their buildings into full compliance with the BPS can receive a performance-based incentive totaling $0.85 cents per square-foot. 

7. Public Reporting

Some BPS require public reporting of building performance data. This transparency can help raise awareness and encourage competition among building owners to achieve higher performance.

Example: The City of Boston makes public-funded school performance data available.

8. Adaptive Standards

BPS may be periodically updated to reflect advancements in technology and changes in environmental goals. This ensures that the standards remain relevant and effective over time.

Example: The State of California brought on one of the earliest BPS policies and, as such, has significantly amended it over time.

9. Public Engagement

In some cases, public engagement and stakeholder input are considered when developing or updating BPS. This helps ensure that the standards align with community values and priorities.

Example: The City of Seattle hosts a number of public forums to present and solicit feedback on draft policy framework, including the city's BPS.

10. Integration with Other Policies

BPS are often part of a broader set of policies and initiatives aimed at promoting sustainability and combating climate change. This may include zoning regulations, green building codes, and other complementary measures.

Example: Kansas City's Climate Protection and Resiliency Plan (CPRP) outlines a framework through their BPS is integrated into a comprehensive set of strategies to reach the city's climate action goals.

BPS should be considered an integral part of a jurisdiction's comprehensive effort to create more sustainable and resilient built environments, contributing to broader initiatives that reduce energy consumption, mitigate climate change, and enhance environmental and human health.