January 17, 2022

Volume XII, Number 17

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Boston Requires Carbon Neutrality for Existing Buildings

Furthering the aims of c which identified large buildings as major carbon emitters, Boston City Council amended the Building Energy Reporting and Disclosure Ordinance (BERDO) to require all buildings of at least 20,000 square feet or 15 dwelling units to chart a course to carbon neutrality by 2050.

BERDO 1.0, adopted in 2013, required annual reporting of energy and water use for buildings with at least 35,000 square feet or 35 dwelling units. BERDO 2.0, re-named the Boston Emissions Reduction and Disclosure Ordinance, passed City Council in September and was signed by Acting Mayor Kim Janey on October 5, 2021. It lowers the building threshold, expands annual reporting to include clean energy purchases and carbon emissions by use type, and requires actual reductions in carbon emissions.

Performance Standards

BERDO 2.0 establishes citywide carbon emissions targets, measured in annual metric tons of carbon dioxide equivalent (i.e., greenhouse gas) per square foot, varying by use type and decreasing every 5 years to net zero in 2050. Mixed-use buildings (more than one use occupying at least 10% of the building’s floor area) have blended emissions targets based on the floor area of each use.

A building owner can meet the citywide targets or seek Review Board approval (addressed below) of tailored targets stepping down from a building’s current baseline emissions. In either case, the goal is to achieve net zero by 2050. Owners may choose to reduce energy consumption through building retrofits, deploy on-site renewable energy (e.g., heat pumps or solar panels) or purchase renewable energy generated offsite (e.g., Community Choice Electricity, Renewable Energy Certificates, Power Purchase Agreements), among other strategies. Fines may be assessed for failure to comply with the applicable performance standard ($300 to $1,000 per day).

Disclosure

The Air Pollution Control Commission, which administers BERDO 2.0, will disclose compliance status on the City of Boston website, in multiple languages, by December 2, 2022, and by October 1 of every subsequent year. Owners can comment on the draft disclosure, available at least 30 days in advance. Buildings newly subject to BERDO 2.0 need only provide annual reporting through 2030 and will not be subject to emissions targets until 2031. Fines may be assessed for failure to comply with reporting requirements ($150 to $300 per day) or for inaccurate reporting ($1,000 to $5,000 per day)

Review Board

A 9-member Review Board appointed by the Mayor will, among other things:

  • review proposed collective instead of individual reporting for building portfolios such as university or hospital campuses;

  • approve tailored emissions reduction schedules to achieve net zero by 2050;

  • approve alternatives (such as payment into a new Building Emissions Equitable Investment Fund based on the average retrofit cost of $234 per metric ton of carbon dioxide equivalent) in cases of substantial obstacles such as historic designation, deed-restricted affordability, long-term energy contracts, or financial hardship; and

  • award grants from the aforementioned fund for emissions reduction projects that prioritize environmental justice populations and populations disproportionately affected by air pollution.

Working Groups

Review Board membership will include expertise in environmental justice, affordable housing, labor and workers’ rights, workforce development, building engineering and energy, real estate development and management, public health and hospitals, architecture and historic preservation. The Review Board can convene sector-specific working groups (e.g., a health care working group) with appropriate governmental authorities, sector-specific professionals, financial institution representatives, energy providers and utility representatives to make recommendations on regulatory changes and hardship criteria.

2022 Goulston & Storrs PC. National Law Review, Volume XI, Number 314
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About this Author

Matthew J. Kiefer Real Estate Attorney Goulston & Storrs Boston
Director

Matthew Kiefer is a real estate development and land use lawyer whose practice is at the intersection of private initiative and public policy, focusing on obtaining parcel dispositions and entitlements from public agencies for complex urban projects. These include market-oriented, mixed-income and affordable housing; commercial and mixed-use projects; and facilities and master plans for universities, cultural institutions and other non-profits. He is a Fellow of the American College of Real Estate Lawyers and has been recognized by Chambers USA as “a pre-eminent force in...

617-574-6597
David Linhart Real Estate Attorney Goulston & Storrs Law Firm Boston
Associate

David Linhart is a real estate attorney who counsels developers on project approvals and financing, as well as other commercial real estate matters. David helps clients to develop mixed-use, multifamily, and other commercial properties.

Prior to joining the firm, David assisted in the Office of the Lieutenant Governor of Massachusetts as part of the Interagency Council on Housing and Homelessness, where he initiated a statewide supportive housing inventory examining resident services funding.

David was also a Rappaport...

617-574-4049
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