If you go to all the hard work of passing climate change legislation, make sure it actually gets implemented.
That's the lesson from a law passed more than 15 years ago. It contains a section mandating that all new and remodeled federal buildings be 100% free of fossil fuels by 2030. But that provision never went into effect, because the Department of Energy failed to finalize regulations to implement the law.
A combination of factors halted the regulations, most notably opposition from natural gas utilities that faced the likelihood of losing business. So instead of getting rid of gas-fired appliances, there are federal buildings still installing them, including in Philadelphia's Independence Hall.
It's only now that Washington appears to be rolling out required rules – with an eye to getting the cuts in climate pollution that could come with them. The stalling of the 2007 law stands as a warning to the Biden administration: passing laws, like the sweeping Inflation Reduction Act and disbursing money, is just the start of work on climate change, especially when there's persistent industry pushback.
"The law doesn't matter if it is flouted or never implemented," says Alexandra Teitz, a former senior counsel for Rep. Henry Waxman, who introduced the section. "To make a difference, we have to seize that opportunity and do the work to bring the benefits into the real world and people's lives."
The Biden administration appears to have learned this lesson. There's a long list of climate-focused regulations in development now, including proposed Energy Department rules to implement this section of the 2007 law.
The original law and a climate section
President George W. Bush signed the Energy Independence and Security Act of 2007 (EISA) on December 19, 2007. Deep inside the 311-page energy policy law is section 433. It said new federal buildings and those undergoing major renovations would have to phase out "fossil fuel-generated energy consumption" by 2030.
"With this bill, we will turn from the past to the future. We have begun the process of adopting energy policies that recognize the science of global warming," California Democratic Rep. Waxman told colleagues on the House floor in 2007.
Heating and cooling of buildings proved a major source of climate pollution 15 years ago, and has only worsened with time. Commercial and residential buildings accounted for 13% of direct greenhouse gas emissions in 2021, most of that from burning natural gas according to the Environmental Protection Agency. That's why the favored solution these days is electrification – switching from burning gas in buildings to cleaner forms of electricity.
The Energy Department was charged with developing a rule to implement section 433, "Not later than 1 year after the date of enactment." That never happened, and the consequences are playing out at federal buildings and complexes around the country.
Fossil fuel dependence at Independence Hall
Philadelphia's Independence National Historical Park is home to Independence Hall, where the Declaration of Independence and the US Constitution were signed. In the absence of rules for implementing the 2007 law, the federal park service is planning to disconnect the Philadelphia site from a city-wide steam loop that heats buildings and switch instead to gas-fired boilers.
"This is a giant step backwards," says Alex Bomstein, legal director at Clean Air Council, an environmental health advocacy organization.
Installing the new boilers means that the site will likely consume natural gas for decades—just as climate science urges countries to phase down fossil fuel use quickly. "We're talking about locking ourselves into dirty fossil fuels," Bomstein says. That's the opposite of what section 433 mandates.
The Energy Department is developing new regulations for section 433. And under the proposal, which takes a narrower interpretation of the law than previous proposals, getting heat from the citywide steam-loop likely would comply. That's because the fossil fuels burned to make the steam are combusted offsite.
So the National Park Service could comply with the proposed regulations by doing nothing and staying on the steam-loop.
The energy department declined to comment on the new rules. But a transcript of a January webinar held by Energy Department staff seems to say that the kind of project the Park Service is undertaking at Independence Hall would violate the newly proposed rules. The proposed regulations focus on getting rid of "onsite combustion of fossil fuels," which would include the use of gas boilers. Energy Department staff specifically mentioned replacing "a natural gas furnace or boiler" with an electric one.
The Park Service maintains that section 433 of the 2007 law doesn't apply in this case. "Our current project is not applicable as it will not affect newly constructed federal buildings or any buildings that have recently gone through a major rehabilitation," Andrew McDougall, public affairs officer at the park, writes in an email to NPR.
McDougall says the project "passed all legal and contracting requirements." Legal experts say that's likely true. Because the new rules are not retroactive, the project at Independence National Historical Park will likely remain exempt from the 2007 law, until the next time heating equipment is replaced.
Building electrification stalled
Section 433 of EISA was supposed to help speed along the electrification of federal sites. The American Institute of Architects (AIA) led the effort to include the language in the 2007 legislation. The thinking was that the government should lead the way to advance technologies and bring down the costs of climate-friendly measures for everyone.
"I think it's really important to lead by example. And the General Services Administration, the GSA, is the largest property owner and manager [in the country]," says Julie Hiromoto, principal at Dallas-based HKS and a member of AIA.
The federal GSA owns and leases 371 million square feet of office space in 8,600 buildings. The agency doesn't track compliance with the 2007 law, but a spokesperson says requirements in EISA have been incorporated into another standard for buildings. Through that, the spokesperson says the agency has reduced greenhouse gas emissions by more than half since 2008.
Still, Hiromoto says the federal government could have achieved those reductions even faster if regulations to implement section 433 had been in place. And GSA requirements are not as powerful as section 433, which is a requirement in law. Executive orders and directives can be changed from one administration to the next.
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Gas utilities oppose section 433
Gas utilities viewed section 433 of EISA as a threat from the start. "We enacted this provision with little opposition, but as soon as the gas industry realized Congress had adopted it, they fought it hard, both by repeatedly trying to repeal it and by adamantly opposing its implementation," says Alexandra Teitz, former senior counsel for Waxman when he chaired the House Oversight and Government Reform Committee.
More broadly, the gas utility industry has fought efforts to eliminate natural gas from buildings, even getting laws passed in state legislatures to block municipal bans on installing new gas infrastructure.
"We think the direct use of natural gas can and should play a role in the energy usage of federal government buildings," says Dave Schryver, president and chief executive of the American Public Gas Association, which represents municipal gas utilities.
Both APGA and the American Gas Association have made it a priority to lobby for legislation to repeal section 433.
"This ban runs counter to an all-of-the-above energy policy, which we believe benefits our country. So, we've worked to fix this legislatively through Congress," Schryver says. "Unfortunately, we haven't had as much success as we would like, but it's something we continue to work on."
As the Biden administration seeks to cut the country's greenhouse gas emissions in half by 2030, the Department of Energy's new proposed regulations could help achieve that goal. But previous efforts in 2010 and 2014 stalled.
Passing climate laws is just the start
There's a lesson here for climate change advocates. As they work to promote building electrification, some didn't even know the 2007 law mandating a ban on fossil fuels in government buildings existed.
"Honestly, this was not on my radar," Bomstein says, even though the Clean Air Council has advocated for building electrification for years. "This law was passed in 2007, and that's before many of us were involved in the environmental movement or in governmental affairs."
"Perseverance is key," Hiromoto says. Her organization helped get section 433 into law in 2007, successfully fought off gas utility efforts to repeal it and now she's looking forward to implementation in 2023.
"Now we just have to work even harder and faster since it took us so long to get moving," she says.
The Energy Department says it is reviewing comments on the proposed regulations now. But no timeline has been set for finishing them.
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