SB 5293

This analysis was prepared by non-partisan legislative staff for the use of legislative members in their deliberations. This analysis is not a part of the legislation nor does it constitute a statement of legislative intent.

As of February 5, 2019

Title: An act relating to energy efficiency.

Brief Description: Concerning energy efficiency.

Sponsors: Senators Carlyle, Nguyen, Palumbo, Das, Billig, Kuderer, Keiser, McCoy, Hunt, Liias, Frockt, Pedersen and Wellman; by request of Governor Inslee.

Brief History:

Committee Activity: Environment, Energy & Technology: 1/23/19.

Brief Summary of Bill

  • Establishes energy performance standards for larger existing commercial buildings.

  • Provides financial incentives and technical assistance for building owners taking early action.

  • Expands access to commercial building energy consumption data to assist with monitoring progress toward meeting energy performance standards.

  • Authorizes local governments to voluntarily adopt energy codes for residential structures beyond the minimum state energy code.

  • Directs the Building Code Council to require electric vehicle charging capability at all new buildings.

  • Requires gas companies to set natural gas conservation targets and renewable natural gas acquisition targets.


Staff: Kimberly Cushing (786-7421)

Background: State Building Code. The State Building Code Council (Council) was established in 1974 to provide analysis and advice to the Legislature and the Office of the Governor on State Building Code (Code) issues. The Council establishes the minimum building, mechanical, fire, plumbing, and energy code requirements in Washington by reviewing, developing, and adopting the Code. The Code sets forth requirements through the provision of building codes to promote the health, safety, and welfare of the occupants or users of buildings and structures throughout the state. The Council must adopt rules for electric vehicle (EV) infrastructure requirements. The Council reviews, updates, and adopts a new Code every three years.

State Energy Code. The Code also includes the Washington State Energy Code (Energy Code), which is a state-written, state-specific code. The Energy Code provides a minimum level of energy efficiency, but allows flexibility in building design, construction, and heating equipment efficiencies. The Council must adopt state energy codes that require buildings constructed from 2013 through 2031 to move incrementally toward a 70 percent reduction in energy use by 2031. The Energy Code must consider regional climatic conditions. The Council may amend the Energy Code by rule if the amendments increase energy efficiency in the affected buildings. Substantial amendments to the Energy Code cannot be adopted more frequently than every three years.

Energy Benchmarking Information. The United States Environmental Protection Agency's Energy Star portfolio manager provides energy management tools and resources for building and plant owners to track and assess energy and water consumption, performance, and cost information. The program uses a national energy performance rating system as a benchmark to assess a building's efficiency relative to similar buildings nationwide.

In 2009, the Legislature required electric utilities with more than 25,000 customers to maintain energy consumption data for all nonresidential and qualifying public agency buildings to which they provide service. Upon written authorization of a building owner or operator, a qualifying utility must upload all of the energy consumption data to the Energy Star portfolio manager in a form that does not disclose personally identifying information. The property owner or operator of a nonresidential building must disclose energy performance data to prospective buyers, lessees, or lenders.

Utilities and Transportation Commission. The Utilities and Transportation Commission (UTC) regulates the rates, services, and practices of privately-owned utilities and transportation companies. Among the companies regulated by the UTC are electrical and natural gas companies. The UTC must ensure that rates charged by these companies are fair, just, and reasonable.

Initiative 937. Initiative 937, also called the Energy Independence Act, requires electric utilities with 25,000 or more customers to meet targets for energy conservation and for using eligible renewable resources.

Summary of Bill: State Energy Performance Standard. By July 1, 2020, the Department of Commerce (Commerce) must establish a state energy performance standard (energy standard) for covered commercial buildings by rule. A commercial building is a nonresidential, hotel, motel or dormitory that exceeds 50,000 square feet, excluding the parking garage area.

Commerce must seek to maximize reductions of greenhouse gas (GHG) emissions from the building sector when developing the energy standard. The energy standard must include:

To establish the energy standards, Commerce must:

The building owner of a commercial building must report to Commerce its compliance with the energy standard according to the following reporting schedule:

The building owner must continue to report every five years, and submit documentation to demonstrate that:

Commercial buildings may be exempt from the energy standard if the building meets specific occupancy criteria; the primary use is manufacturing or industrial purposes; is an agricultural structure; or meets a specific condition of financial hardship. Additionally, no individual energy efficiency requirement needs to be met that would compromise the historical integrity of a building listed in local, state, or national registries or laws.

Commerce may issue a notice of violation to a building owner for noncompliance. A determination of noncompliance may be made for failure to submit a compliance report as required, meet an EUI target, receive conditional compliance approval, provide accurate reporting, or provide a valid exemption certificate.

Commerce may impose an administrative penalty on a building owner for failing to comply with the energy standard. The penalty may not exceed $5,000, plus a daily amount equal to $1 per year per square foot of floor area for a continuing violation. Commerce may increase penalties to adjust for inflation.

Administrative penalties collected must be deposited into the existing Low-Income Weatherization and Structural Rehabilitation Assistance Account.

Early Adoption Incentive Program. Commerce must develop a State Energy Performance Standard Early Adoption Incentive Program (incentive program). Commerce may adopt rules to implement the incentive program, and must:

An eligible building owner may receive an incentive payment if the following requirements are met:

An eligible building owner may submit an application to Commerce according to the following schedule:

A base incentive is equal to $0.50 per square foot. An owner that qualifies for the base incentive and demonstrates compliance with the EUI target for the next three consecutive years may receive an additional incentive of $0.35 per square foot. Commerce may not issue certification for an incentive program if it would result in total payments exceeding $75 million.

A gas or electric utility that serves more than 250,000 Washington customers must administer incentive payments for the incentive program. Any other gas, electric, or thermal energy utility may voluntarily participate by providing notice to Commerce.

An electric or gas utility is allowed a credit against the public utility tax in an amount equal to:

Credit earned in one calendar year may not be carried forward or backward.

A utility's participation in the incentive program does not relieve the utility of any existing obligation to provide customer energy efficiency programs or incentives. Unique energy efficiency savings achieved through the incentive program may be used to meet regulatory requirement to acquire conservation and energy savings, unless prohibited by law.

Energy Consumption Data Disclosure. Within 60 days of receiving a request and authorization of a building owner, the utility must provide the building owner with monthly energy consumption data to benchmark the specified building. An electric or gas utility with less than 25,000 customers must either (1) offer the upload service to the Energy Star portfolio manager or (2) provide customers who are building owners of covered commercial buildings with consumption data in an electronic document formatted for direct upload of the Energy Star portfolio manager.

For any covered commercial building with three or more tenants, a utility must provide to a building owner upon request the aggregated monthly energy consumption data without requiring prior consent from tenants. Energy consumption data provided must not contain personally identifiable information or customer-specific billing information about tenants.

Natural Gas and Renewable Natural Gas. The cost of greenhouse gas (GHG) emissions resulting from the use of natural gas, including the effect of emissions occurring in the gathering, transmission, and distribution of natural gas, is equal to the cost per metric ton of carbon dioxide emissions, using the 2.5 percent discount rate developed by the Interagency Working Group on Social Cost of GHGs of the United States government.

Each gas company must establish an acquisition target for conservation measures every two years that will result in the acquisition of all resources identified as available and cost effective. The cost-effectiveness analysis must include the cost of the GHG emissions set by the Interagency Working Group. The targets must be based on a conservation potential assessment prepared by an independent third party. Conservation targets must be approved by the UTC and the initial target must take effect by 2022.

The UTC must establish a schedule of annual minimum renewable natural gas (RNG) acquisition targets as a percentage of each gas company's total quantity of sales to retail customers. When establishing these targets, the UTC must consider state GHG emissions reduction goals, the costs of GHG emissions set by the Interagency Working Group, other potential end uses for RNG in the public interest, and potential costs of RNG versus fossil fuel natural gas. The initial RNG target must take effect by 2022.

The environmental attributes of RNG used to comply with RNG acquisition targets must be retired, and the UTC must approve procedures for their banking and transfer. The UTC may approve pilot programs for procurement of RNG. The UTC may also approve use of another source of gas for compliance with a target if it is produced without consumption of fossil fuels.

In any application for a new gas plant, a gas company must provide an analysis and demonstrate that natural gas is cost-effective relative to electricity in order for the UTC to issue a certificate of pubic convenience and necessity. The cost-effectiveness analysis must use methods comparable to integrated resource planning and reflect the societal costs of GHG emissions set by the Interagency Working Group.

Each gas company must report annually to the UTC:

Every five years, the UTC must report to the Governor whether the gas companies are on track to meet a proportionate share of the state's GHG emissions reduction goal.

State Energy Code. The Energy Code for residential buildings remains the minimum residential energy code for all municipalities in Washington. However, a city, town, or county may adopt additional residential energy code requirements developed by the Council. By December 1, 2019, the Council must adopt the following two optional efficiency appendices providing energy code provisions that will reduce energy use by an additional:

The Council must amend the optional appendices whenever it amends the minimum code requirement.

The Council may amend the energy code for new nonresidential buildings provided that any new measures, standards, or requirements adopted must be developed to yield the lowest overall cost to the building owner and occupant while meeting the statutory goal of moving incrementally toward a 70 percent reduction in energy use by 2031.

Electric Vehicle Charging Infrastructure. The Council's existing rules for EV infrastructure must require EV charging capability at all new buildings. Where parking is provided, either one parking space or 10 percent of parking spaces, whichever is greater, must be provided with EV charging infrastructure. Electrical rooms serving parking areas must accommodate the electrical equipment and distribution required to serve a minimum of 50 percent of total parking spaces with EV charging infrastructure. Two accessible parking spaces must be served when EV charging infrastructure is required.

For buildings classified as assembly or mercantile, EV charging infrastructure requirements only apply to employee parking spaces. The new rules will not apply to occupancies classified as small commercial, utility, or miscellaneous.

Appropriation: None.

Fiscal Note: Requested on January 18, 2019.

Creates Committee/Commission/Task Force that includes Legislative members: No.

Effective Date: Ninety days after adjournment of session in which bill is passed.

Staff Summary of Public Testimony: PRO: Buildings account for 27 percent of state emissions, and these emissions have grown by 51 percent. The bill focuses on efficiency, looks at the entire building life cycle, allows commercial jurisdictions to innovate, allows for stretch goals, and creates an incentive program for deep energy retrofits—allowing building owners to make changes to bring their building into compliance. An alternative compliance pathway allows for compliance if an owner implements measures regardless of where your EUI is. The natural gas conservation standard is like the standard for electricity, which has been successful. We appreciate a tiered building code standard and high energy charging stations. Cities are growing through unprecedented growth and this helps local governments by having the state implement a program. We risk undoing progress elsewhere if we do not update energy standards for buildings. Inefficient buildings are more susceptible to dirty air and more expensive to heat. We can slash carbon emissions from buildings in cost-effective ways. Architects have the experience to build lower carbon buildings. But right now existing buildings are the greatest challenge and offer the greatest benefits. We have concerns about ASHRI. Not meeting targets will be an important part of rulemaking. The building code is the biggest driver of energy efficiency. Energy efficiency is an important tool as the cleanest and cheapest source of energy. EUI targets are already common targets. Incentive programs can easily return three-fold. Technology is available to make energy efficiency reductions. Stretch codes keep innovators innovating and help others keep rolling along. There is a large number of trades across a range of crafts and we regard these as high value jobs. The scale and magnitude of the program should show significant economic opportunity for more than just low-wage jobs across the state. The value of energy is different depending on the time of day, so an annual metric might not be the best way to determine the value energy. We should encourage requirements to be adopted sooner and be more aggressive. The standard should apply to smaller buildings. 2028 is not soon enough. Methane from natural gas currently escapes and instead can be captured, cleaned, and replaced as RNG. A procurement target for RNG preserves consumer choice. Customers prefer gas five to one over electricity. The bill allows municipalities to adopt a more stringent energy code and would like an estimate of savings and costs so utilities can make informed decisions. This bill is part of a broader strategy for reducing GHG emissions.

CON: The bill modifies the certificate of necessity in a way that has never been used. The natural gas provisions will extract very little in terms of real GHG reductions. The bill undoes the statewide energy code and risks creating a patchwork of standards in variety of cities. Natural gas provides baseload power, is popular with consumers for heating, and allows the state to get off coal. The policy encroaches on customer needs based on energy choice. There are competing uses for RNG. The most expensive use of RNG is to condition it for pipeline quality, so this is not necessarily the most cost-effective use.

OTHER: We embrace new technologies, but the bill represents a departure from current building code standards. Incentives are for only the worse-performing buildings and one-third of the cost is not enough. There is no guarantee there will be enough incentives. The proposed rules should sit through one legislative session so there is time to petition the Legislature for changes. The incentive tax language should be tightened to ensure liabilities are conserved. The carbon adder to this bill is different from several other proposals. Professional engineers are qualified to be engineers for state of Washington. Commerce would become the second agency to qualify engineers because the Department of Licensing already does this.

Persons Testifying: PRO: Jay Arnold, Kirkland Deputy Mayor; Nancy Tosta, Councilmember, Burien City; Neil Hartman, Washington State Building & Construction Trades Council; Amy Wheeless, NW Energy Coalition; Zack Semke, Shift Zero; Kirsten Smith, AIA; Mark Frankel, New Buildings Institute; Kerry Meade, Northwest Energy Efficiency Council; Michael Frank, McKinstry; David McCaughey, Ameresco; Tom Balderston, NW EcoBuilding Guild; Elyette Weinstein, Washington League of Women Voters; Nina Kapoor, Coalition for Renewable Natural Gas; Leah Missik, Climate Solutions; Jesse Piedfort, Sierra Club; Mendy Droke, Seattle City Light; Greg Rock, Carbon Washington; Nicolas Garcia, WPUDA; Dave Warren, Klickitat PUD; Clifford Traisman, Washington Environmental Council/WCV. CON: Charlie Brown, Cascade Natural Gas Company; Dan Kirschner, Northwest Gas Association; Peter Godlewski, Association of Washington Business; John Rothlin, Avista; Bill Stauffacher, Building Industry Association of Washington; Van Collins, ACEC Washington. OTHER: Greg Hanon, NAIOP; Jerry VanderWood, Associated General Contractors; Brandon Houskeeper, Puget Sound Energy.

Persons Signed In To Testify But Not Testifying: No one.