NATURAL RESOURCES DEFENSE COUNCIL

Comments of NRDC on Department of Energy Interim Final Rule: 

Energy Conservation for New Federal Commercial and 

Multi-Family High-Rise Residential Buildings and 

New Federal Low-Rise Residential Buildings 

Docket No. EE-RM/STD-02-112 

David B. Goldstein, Ph.D. 

Natural Resources Defense Council 

30 January 2007 

I. Introduction

DOE’s proposed rules represent an outrageous misinterpretation of the Energy 

Policy Act of 2005, taking a legislative requirement to establish standards that save at 

least 30% and turning it into a do-it-yourself exercise for architects, an exercise

structured to guarantee that savings will be no more than 30%. DOE should revise this 

rule as soon as possible to establish explicit standards that comply with the clear and 

evident requirements of EPAct 2005, Section 109. 

II. The Requirements of EPAct 

Section 109 of the Energy Policy Act of 2005 was intended to assure that federal 

buildings meet substantially higher standards for energy efficiency than typical new 

buildings. Subsection (1) of Section 109 immediately replaced the obsolete energy 

code references with references to current model energy codes. But it goes on directly 

in subsection (2) to require that: 

 “the Secretary shall establish, by rule, revised building federal energy efficiency 

performance standards that require that – 

(i) if lifecycle cost effective for new federal buildings – 

(I) the buildings be designed to achieve energy consumption 

levels that are at least 30% below the levels established in the version of 

the ASHRAE standard or International Energy Conservation Code as 

appropriate, that is in effect as of the date of the enactment of this 

paragraph;...”(emphasis added) 

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The plain reading of this Section, which is so obvious that it is almost an 

absurdity to try to paraphrase it here, is that the Secretary is required to establish new 

federal building energy performance standards that save at least 30% compared to the 

reference national codes. An exception is provided in the case that DOE determines 

that the 30% minimum for the energy goal is not cost effective. 

In other words, DOE has an affirmative responsibility to write a standard – or 

adopt one by reference – that achieves the required savings (assuming it is costeffective, which ample evidence demonstrates that it is) of at least 30%. 

The Published Rule does not do this. Instead, it establishes the standard at the 

same level as the model energy codes, which is what Subsection I has already done 

legislatively. 

DOE then tries to pawn off its responsibility on to the building designer by 

asking the designer to not only determine whether they can build a building that saves 

30%, but to have the flexibility to go to a lower level of savings if the architect 

determines that the standard is not cost effective. 

This procedure is in blunt and obvious contradiction to the requirements of the 

law. Congress did not ask DOE to set a standard based on individual, building-bybuilding calculations of cost-effectiveness. It did require DOE to establish “revised 

building energy efficiency performance standards that require that... the buildings be

designed to achieve energy consumption levels that are at least 30% below the levels [in 

the model codes].” 

DOE’s Interim Rule is also in error because it attempts to read the words “at 

least” out of the legislation. There is nothing in DOE’s Interim Rule that attempts to 

find standards for federal buildings that save even 30.1%. This is in plain violation of 

the intent of Congress. 

DOE’s Interim Rule is all the more surprising because the amount of work that 

would be needed to establish cost-effective standards that meet the explicit language as 

well as the intent of the law is minimal. Most of the effort has been made in documents 

that are already available, and indeed, are cited in the Interim Rule. The New Buildings 

Institute’s Advanced BuildingsTM Benchmark, as noted in the Interim Rule, was 

intended to achieve a 30% reduction compared to the previous version of ASHRAE 

90.1, and with minor technical adjustments could easily be amended to meet the goal of 

at least 30% savings. The Benchmark itself points out demonstrations of costeffectiveness in which the provisions for most buildings have a payback period of 3 

years or less, which is outstandingly cost-effective using the methodologies DOE 

recommends in the Interim Rule. So it is evident that minor improvements beyond this 

could achieve cost effectiveness. Similarly, ASHRAE’s “Advanced Energy Design 

Guide,” applicable for small office buildings and retail stores, also approaches 

achievement of the 30% savings goal, and could have been used as an additional 

resource by DOE staff or contractors attempting to develop a standard. 

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Section 1331 of EPACt establishes a tax deduction for buildings that meet a 

target of 50% savings. Federal buildings can make use of this deduction to cut 

government costs by assigning it to the architect in charge of the design. Why did DOE 

not require all federal buildings to meet this target? Or if 50% is seen as too difficult, 

why not set a minimum of 45% or 40%?

For residential buildings, one approach that would have been compliant with the 

law would have been even easier for DOE. The Department already provides a 

methodology for calculating compliance with the new homes tax credits, also enacted in 

EPAct. This method requires 50% savings in heating and cooling energy compared to 

the model code referenced. It provides no prescriptive options for doing so. It would 

have been easy for DOE to require that federal buildings meet this 50% target using the 

methodology it has approved for tax credit compliance. If DOE suspected that this 50% 

level might fail the cost-effectiveness test, which NRDC finds dubious, since many 

builders are already taking advantage of the tax credit and would be profoundly unlikely 

to do so if it were not cost-effective for their customers, it could analyze whether the 

appropriate target would be 5% or 40% or 35% ... 

What is so distressing about DOE’s Interim Rule is that if Congress had 

intended each individual architect to check whether 30% savings were cost effective 

and if not, drop back to 25%, etc., as DOE has proposed, it could have written that 

itself. Evidently, the fact that Congress delegated the authority and responsibility to 

DOE to “establish, by Rule, revised building energy efficiency standards,” meant that 

they intended something more sophisticated than what they could have done 

themselves. 

Ironically, DOE’s Interim rule validates Congress’ decision in Subsection I to 

write the initial standards legislatively rather than through regulation; at least the result 

was what the legislation intended. 

III. Conclusions 

EPAct Section 109 requires DOE to promulgate new energy efficiency standards 

for federal buildings that save at least 30%. The Department has failed to do so. 

Instead, it has promulgated a procedure for each individual architect or building 

designer to follow in seeking energy savings that may be as large as 30%. 

DOE has the affirmative obligation under Section 109 to do the serious 

analytical work that would establish actual federal building energy performance 

standards and to do so at a level that saves more than 30%. Given DOE’s statutory 

requirement to “maximize energy conservation measures,” DOE is obligated to set the

percentage savings at the very highest level that is economically justifiable. This means 

that DOE must start its analysis at the 50% savings levels established for the tax 

incentives, both for commercial buildings and for residential buildings, and reduce 

stringency from this 50% savings only if 50% fails to be cost effective. 

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NRDC notes in conclusion the increasing tendency for Congress to adopt 

specifications that ought to be established through the regulatory system by DOE 

explicitly as part of legislation. This displays a profound distrust by Congress of DOE’s 

competence at following the usual sort of legislative direction and relying on agency 

discretion and expertise to get it right. Unfortunately, this rule reinforces this 

skepticism. Regulating through legislation is not an example of good government. 

DOE should work, in this rule and others, to produce regulatory products that 

accomplish the intent of legislation and are compliant with the explicit requirements, 

instead of trying to rewrite the law. 

Thank you for the opportunity to comment. 

Respectfully Submitted, 

David B. Goldstein, Ph.D. 

Energy Program Director 

dgoldstein@nrdc.org 

 

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