USA – Response to Case 2009
Energy efficiency and renewable energies in (town) planning law
1. In the United States, is there national or state legislation for the use of renewable sources of energy or energy efficiency? Can municipalities create their own or higher standards?
The United States has a variety of existing and proposed legislation to encourage both more energy efficient buildings and the use of renewable energy, but the primary governments involved in this effort are states and municipalities. Thus, there are many innovative approaches to the construction and retrofitting of building to ‘green’ them and to promote the use of alternative energy, but, as is typical in the United States, these initiatives are decentralized. There is some coordination through the Mayors’ Climate Protection Agreement; the mayors of most large cities have committed themselves to meet or beat the Kyoto Protocol targets. The existing federal legislation does not impose energy efficiency or alternative energy use duties on either municipalities or individuals. In general, the focus is on information provision, but increasingly mandatory duties are being imposed by the federal states which in turn are imposing more duties on municipalities. This may be change. The American Clean Energy and Security Act of 2009, H.R. 2454, includes provisions for a ‘smart grid’ system. The system may include time of use pricing for individual homes.
A. Existing Federal Legislation for Energy Efficient Buildings
A variety of federal acts provide incentives and subsidies for retrofitting and new energy efficient construction. For example, the Energy Conservation and Production Act of 1992, 42 United States Code section 6872, created a pilot program to ensure a small number of mortgages for the purchase of existing energy efficient residential buildings and the installation of cost-effective improvements in existing residential buildings. In 2009, the Act was amended to grant the owners of residential buildings who install ‘qualified energy efficiency improvements’ a tax credit of 30% of the cost of the improvements. States have their own tax credit programs for ‘green’ buildings.
The federal Department of Housing and Urban Development provides a great deal of best practices information to municipalities. This information includes model building code upgrades to mandate more energy efficient construction.
The Department of Energy [DOE] has developed voluntary labeling standards for consumer appliances such as clothes washers and dish washers. The DOE also has the power to compel states to adopt commercial energy conservation codes as stringent as a widely accepted non-governmental standard. These codes are important but, as discussed below, do not apply to all residential development.
B. Federal Legislation for the Use of Renewable Energy
The first federal legislation to encourage the production of alternative energy was passed in 1978. The Public Utilities Regulatory Policies Act [PURPA] encouraged the construction of small hydroelectric and co-generation projects. Public utilities were required to purchase electricity from these sources at avoided cost rates. As concern over GCC mounted, states took the basic idea further and adopted ‘green’ portfolio standards for public utilities. Portfolio standards specify the percentage of a utility’s load that must be generated by renewable sources. Some states also allow homeowners who generate their own electricity to sell the surplus to the local utility. The United States Congress is currently considering GCC mitigation legislation which includes weak portfolio standards. The American Clean Energy and Security Act of 2009, H.R. 2454, requires that 6% of US energy be renewable by 2012 and 20% by 2021.
C. Can Municipalities. Adopt Higher Standards?
At the present time, with the exception of the DOE mandated commercial energy codes, there are no federal or state mandated “green” building standards. Thus, communities are free to adopt their own energy efficiency standards.1 Most municipalities use the standards developed by the non-profit United States Green Building Counsel (USGBC). The Council has developed the Leadership in Energy and Environmental Design [LEED] rating system. The system awards points for all aspects of design from selecting environmentally degraded land to the use of rainwater irrigation. Like airline points programs, there are four levels of certification, certification, silver, gold and platinum. The certification level is based on the energy saved over a conventional building.
In generally, LEED certification is not mandatory2. The major of Chicago, Richard J. Daley, has committed the city to the goal of becoming the greenest city in the country. To obtain a building permit for a LEED certified building, a process fraught with difficulties including a high level of corruption, ‘developers can choose from a list of menu items’ that work for the project.3 Few cities have mandated LEED certification for large buildings.4 For individual homes, a few cities have adopted the federal Environmental Protection Agency’s Energy Star program standards.
Most states do not preempt municipalities from adopting higher energy standards. Municipalities are only prohibited from adopting lower standards. E.g. Illinois Efficient Commercial Buildings Act. However, the Illinois statute does not apply to historic buildings or residential buildings three (3) stories or less.
2. Are there special regulations for renewable energies or energy efficiency in planning law? Has the legislation mentioned in question one influenced planning law?
The promotion of renewable energy is a primarily a federal and federal state function. There has been considerable federal state legislation to promote sustainable communities. But, this legislation is primarily concerned with encouraging the development of higher density residential and commercial development clustered around public transportation nodes.5 The proposed federal legislation dealing with alternative fuels focuses primarily on the production of electricity. The most relevant planning provisions in the legislation are the sections which amend the Energy Conservation and Production Act to revise conservation standards for new buildings. The proposed legislation establishes (1) standards for a national building retrofit policy for residences; (2) a building energy performance labeling program; (3) a rebate program to assist low income people living in pre-1976 homes to purchase new Energy Star homes.
The renewable energy source with the closest nexus to land use planning is solar energy. The United States does not recognize a general right of a property owner who instals solar panels to be free from interference by neighboring structures,6 although interference with solar access may be a nuisance.7The sunny state of New Mexico has created a statutory right to solar access based ‘upon the first beneficial use of sunlight for solar power.’ However, this legislation, which has not been copied in other states, can be challenged as an unconstitutional taking of property without compensation.
States and municipalities promote solar energy in several ways. Many sunny states such as California and Colorado prohibit home owner associations from imposing private servitudes which prohibit the installation of solar collectors. Many cities have zoning codes which specify the angle of protected solar access to which a building is entitled. Municipal zoning codes in a few cities specify the southern exposure angle for new residential construction.
The next likely alternative energy source is wind power The United States is seeking to promote wind energy, but municipalities often see themselves as victims of unwanted wind farms8 rather than active participants in the production and use of this energy. The primary federal incentive for investment in wind energy is the Production Tax Credit of 2.1 cents per kilowatt hour for electricity generated from wind (28 United States Code Section 45). The federal states encourage the construction of wind mill farms through a variety of means such as renewable portfolio standards for public utilities.
Were a zoning ordinance to mandate in the installation of individual turbines on new or existing construction or allow them as a matter of right, property owners who instal them face the risk that a neighbor could sue for nuisance relief based on the noise and the annoying “strobe effect” of the turning turbine blades.9 Cities are beginning to address the nuisance issue through zoning ordinances that promote the use of individual turbines. California had a law between 2001 and 2005 that required communities to adopt small wind turbine ordinances or face review of proposed turbines under a default law that provided for expedited review. Some 21 communities in the United States now have ordinances to regulate small turbines.10
3. Does the above legislation effect existing as well as new buildings?
The general answer to this question is no, but there are exceptions. The progressive university city of Burlington, Vermont- the Green Mountain State- imposes higher energy efficiency standards on the sale of multiple-family buildings where the tenant is responsible for the utility service.
A. Dan Tarlock (with the assistance of ms. Shannon Beebe, JD Class, 2011) Distinguished professor of law Chigago-Kent College of Law Chigago IL dtarlock@kentlaw.edu
1 To date, preemption issues have arisen with state statutes enacted to regulate the use of solar panels. E.g. Kurcera v. Lizza, 69 Cal.Rptr.2d 582 (California Court of Appeals 1997)(Solar Shade Control Act did not preempt local government ordinances regulating tree planting that could interfere with active and passive solar energy use).
2 For a proposal to charge higher development impact fees on non- LEED certified development see Benjamin S. Kingsley, Making It Easy to be Green: Using Impact Fees to Encourage Green Building, 83 N.Y.U.L. rev. 532 (2008).
3 Cutting the `Green’ Red Tape, Crains Chicago Business, August 10, 2009, p. 25.
4 Edna Sussman, Green Development, Climate Change, and Local Land Use Regulation, 16 New York University.. Environmental Law Journal 1 (2008).
5 Judi Brawer and Mathew Vespa, Thinking Globally, Acting Locally: the Role of Local Government in Minimizing Greenhouse Gas Emissions From New Development, 44 Idaho L. Rev. 589 (2008).
6 The leading case of Fountainebleau Hotel Corp. V. Forty-Five Twenty-Inc., 114 So.2d 357 (Fla.Dist.Ct. App. 1959) rejected the English doctrine of ancient lights, which recognizes implied easements based on prescription. The case is still good law. Wolford v. Thomas, 235 Cal.Rptr. 422 (Cal.Ct.App. 1987).
7 Prah v. Maretti, 321 N.W.2d 182 (Wis. 1982).
8 Jennifer R. Antonio, The Power of Wind: Current Legal Issues in Siting Wind Power, 61 Planning & Environmental law, No. 5, p. 3, May, 2009.
9 Burch v. Nedpower Mount Storm, LLC, 647 S.E.2d 879 (West Virginia 2007).
10 American Wind Energy Association, IN THE PUBLIC INTEREST: HOW AND WHY TO PERMIT FOR SMALL WIND SYSTEMS, A GUIDE FOR STATE AND LOCAL GOVERNMENTS, available atwww.awea.org/smallwind/pdf/InThePublicInterest.pdf