STATE OF NEW YORK
________________________________________________________________________
838
2021-2022 Regular Sessions
IN SENATE(Prefiled)
January 6, 2021
___________
Introduced by Sen. HOYLMAN -- read twice and ordered printed, and when
printed to be committed to the Committee on Energy and Telecommuni-
cations
AN ACT to amend the public authorities law and the environmental conser-
vation law, in relation to establishing the energy performance bench-
marking program
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The legislature hereby finds and declares that New York
2 state is dedicated to the mutually compatible goals of environmental
3 protection, energy security, and economic growth; increasing energy
4 efficiency has been identified as among the most cost-effective methods
5 for reducing greenhouse gas and other environmental pollutant emissions
6 and increasing energy security; increasing energy efficiency can lead to
7 increased jobs and a reduction in building operating expenses; and New
8 York state is committed to implementing new policies to promote the
9 efficient use of energy and natural resources in the interest of the
10 long-term protection and enhancement of the state's environment, economy
11 and public health.
12 § 2. The public authorities law is amended by adding a new section
13 1018 to read as follows:
14 § 1018. Benchmarking. 1. Definitions. For the purposes of this
15 section, the following terms are defined as follows:
16 a. "Affected state entities" means (i) all agencies and departments
17 over which the governor has executive authority, and (ii) all public
18 benefit corporations, public authorities and commissions, for which the
19 governor appoints the chair, the chief executive, or the majority of
20 board members, except for the port authority of New York and New Jersey.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03584-01-1
S. 838 2
1 b. "Average source energy use intensity" or "average EUI" means the
2 average source energy use per square foot for all state-owned and
3 managed buildings.
4 c. "Source energy" means all the energy used in delivering energy to a
5 site, including power generation, transmission and distribution losses.
6 2. Energy reduction target. By April first, two thousand twenty-six,
7 all affected state entities shall collectively reduce the average EUI in
8 state-owned and managed buildings by at least twenty percent from a
9 baseline of the average EUI of such buildings for state fiscal year two
10 thousand sixteen--two thousand seventeen ("target").
11 3. Obligations to meet target. a. Central management and implementa-
12 tion team: the New York power authority ("NYPA") shall establish a
13 central management and implementation team ("CMIT") to administer this
14 section. (i) The CMIT is hereby directed and authorized to:
15 (a) take all appropriate measures to ensure that the target is met;
16 (b) direct affected state entities to comply with the requirements of
17 this section;
18 (c) create guidelines ("guidelines") within nine months of the effec-
19 tive date of this section to assist affected state entities in complying
20 with this section, and thereafter update such guidelines as necessary;
21 (d) provide strategic, technical, and other assistance to each
22 affected state entity to support implementation of this section;
23 (e) develop annual milestones for achieving the target over the next
24 seven years within twelve months of the effective date of this section;
25 (f) develop and implement reporting requirements to document each
26 affected state entity's progress toward meeting the target;
27 (g) develop a comprehensive operations and maintenance plan for the
28 state's building portfolio to help achieve no-cost and low-cost effi-
29 ciency improvements and ensure that efficiency savings are sustained;
30 and
31 (h) submit an annual report to the governor by January fifteenth of
32 each year, beginning in two thousand twenty-one, detailing the overall
33 progress affected state entities are making toward meeting the target
34 requirements. The target requirements for the annual report shall be
35 contained in the guidelines.
36 (ii) The office of general services and the New York state energy
37 research and development authority are hereby directed to provide tech-
38 nical assistance to the CMIT and each of the affected state entities
39 with respect to complying with and implementing the requirements of this
40 section and those established by the CMIT pursuant to this section.
41 b. Affected state entities. In addition to the requirements estab-
42 lished above, each of the affected state entities shall comply with the
43 following:
44 (i) Benchmarking. For each state fiscal year, each affected state
45 entity shall measure the energy use in state-owned and managed buildings
46 having an area greater than twenty thousand square feet. Buildings on
47 master-metered campuses shall be benchmarked at the campus level until
48 they are sub-metered at the building level, after which point those
49 buildings shall be benchmarked at the building level.
50 (ii) Audits. Buildings that receive low benchmark scores, as defined
51 by the guidelines, shall undergo an American society of heating, refrig-
52 eration and air-conditioning engineers ("ASHRAE") level II energy audit,
53 or any other comparable audit that the CMIT approves. Campuses that have
54 above-average EUIs or poor benchmark scores, as defined by the guide-
55 lines, or are otherwise prioritized by the affected state entities and
56 the CMIT, shall undergo a campus-wide ASHRAE level II energy audit or
S. 838 3
1 any other comparable audit approved by the CMIT. In addition to energy
2 efficiency measures, the audits shall identify opportunities for cost
3 effective on-site renewable generation and high-efficiency combined heat
4 and power.
5 (iii) Required capital projects and energy optimization measures.
6 Affected state entities shall implement a cost-effective portfolio of
7 measures identified and recommended in the audit and shall complete or
8 make substantial progress toward completion of such measures within two
9 years of completion of the audit. A portfolio may include, but shall not
10 be limited to, no- and low-cost operational improvements, retro-commis-
11 sioning, capital energy efficiency retrofits, on-site renewable and
12 high-efficiency combined heat and power, and other measures identified
13 by the CMIT.
14 (iv) Sub-metering. Affected state entities shall work with the CMIT to
15 prioritize sub-metering for all relevant energy sources of buildings
16 larger than one hundred thousand square feet on a master-metered campus
17 to identify ways to finance such sub-metering. All buildings having an
18 area larger than one hundred thousand square feet on master-metered
19 campuses shall be sub-metered for all fuels and other energy sources by
20 December thirty-first, two thousand twenty-two, to enable individual
21 building benchmarking unless the affected state entity that owns or
22 operates the building can demonstrate to the CMIT that it is not cost-
23 effective or feasible to do so.
24 (v) Incorporating energy efficiency analysis in the capital planning
25 process. As part of the capital planning process, all affected state
26 entities shall include an energy efficiency analysis in the design phase
27 of all capital project plans. The capital project shall include energy
28 efficient measures or technologies determined to be the most cost-effec-
29 tive, as defined by the guidelines.
30 (vi) Credits. Affected state entities may receive credit towards the
31 target for increasing energy efficiency in leased space. In addition,
32 affected state entities may receive credit towards meeting the target
33 for installing on-site renewable generation if the host site for such
34 renewable generation has deployed all cost-effective energy efficiency
35 improvements consistent with the goals of this section. Affected state
36 entities shall consult with and apply to the CMIT concerning such cred-
37 its.
38 (vii) Reporting. No later than October first of each calendar year,
39 each affected state entity shall submit all information requested by the
40 CMIT on all state-owned and managed buildings having an area over twenty
41 thousand square feet, as well as any other information related to
42 assessing compliance with this section.
43 c. Exemptions. Electric usage attributable to vehicle charging shall
44 not be included in the target and requirements of this section. The CMIT
45 is authorized to provide other exemptions for good cause shown pursuant
46 to criteria and procedures established in the guidelines, including
47 exceptions associated with buildings that have obtained and maintained
48 ENERGY STAR or similar certification, or have benchmark scores placing
49 such buildings in the top quartile of comparable buildings for the
50 particular year at issue. Affected state entities shall submit requests
51 for annual exemptions to the CMIT. Any such request for exemptions and
52 resulting determination by the CMIT shall be included in the annual
53 report.
54 § 3. Article 19 of the environmental conservation law is amended by
55 adding a new title 13 to read as follows:
S. 838 4
1 TITLE 13
2 BENCHMARKING
3 Section 19-1301. Benchmarking.
4 § 19-1301. Benchmarking.
5 The energy and water use of covered buildings shall be benchmarked in
6 accordance with this section.
7 1. Definitions. As used in this section, the following terms shall
8 have the following meanings:
9 a. "Benchmark" means to input and submit to the benchmarking tool the
10 total use of energy and water for a building for the previous calendar
11 year and other descriptive information for such building as required by
12 the benchmarking tool.
13 b. "Benchmarking tool" means the internet-based database system devel-
14 oped by the United States environmental protection agency, and any
15 complementary interface designated by the department, to track and
16 assess the energy and water use of certain buildings relative to similar
17 buildings.
18 c. "Covered building" means as it appears in the records of the
19 department of taxation and finance:
20 (i)(a) a building that exceeds fifty thousand gross square feet, (b)
21 two or more buildings on the same tax lot that together exceed one
22 hundred thousand gross square feet, or (c) two or more buildings held in
23 the condominium form of ownership that are governed by the same board of
24 managers and that together exceed one hundred thousand gross square
25 feet.
26 (ii) Exception: The term "covered building" shall not include:
27 (a) Any building that is a government building.
28 (b) Any building that is owned by the government.
29 (c) Real property classified as class one pursuant to subdivision one
30 of section eighteen hundred two of the real property tax law.
31 d. "Data center" means a room or rooms used primarily to house high
32 density computing equipment, such as server racks, used for data storage
33 and processing.
34 e. "Dwelling unit" means a single unit consisting of one or more habi-
35 table rooms, occupied or arranged to be occupied as a unit separate from
36 all other units within a building, and used primarily for residential
37 purposes and not primarily for professional or commercial purposes.
38 f. "Energy" means electricity, natural gas, fuel oil and steam.
39 g. "Owner" means the owner of record, provided that "owner" shall be
40 deemed to include:
41 (i) the net lessee in the case of a building subject to a net lease
42 with a term of at least forty-nine years, inclusive of all renewal
43 options,
44 (ii) the board of managers in the case of a condominium, and
45 (iii) the board of directors in the case of a cooperative apartment
46 corporation.
47 h. "Tenant" means any tenant, tenant-stockholder of a cooperative
48 apartment corporation, condominium unit or owner or other occupant.
49 2. Benchmarking required for covered buildings. The owner of a covered
50 building shall annually benchmark such covered building no later than
51 May first, two thousand twenty-three, and no later than every May first
52 thereafter. Benchmarking of water use shall not be required unless the
53 building was equipped with automatic meter reading equipment by the
54 department for the entirety of the previous calendar year. The owner or
55 the owner's representative performing the benchmarking shall consult
56 with the operating staff of the building, as appropriate.
S. 838 5
1 a. Obligation to request and to report information. Where a unit or
2 other space in a covered building, other than a dwelling unit, is occu-
3 pied by a tenant and such unit or space is separately metered by a util-
4 ity company, the owner of such building shall request from such tenant
5 information relating to such tenant's separately metered energy use for
6 the previous calendar year and such tenant shall report such information
7 to such owner.
8 (i) Owner solicitation of tenant information. Such owner shall request
9 information relating to such tenant's separately metered energy use for
10 the previous calendar year no earlier than January first and no later
11 than January thirty-first of any year in which the owner is required to
12 benchmark such building. The department may require that such owner
13 provide such tenant with a form designated by the department to report
14 such information.
15 (ii) Tenant reporting of information. Such tenant shall report infor-
16 mation relating to such tenant's separately metered energy use for the
17 previous calendar year no later than February fifteenth of any year in
18 which the owner is required to benchmark such building. Such information
19 shall be reported in a form and manner determined by the department.
20 (iii) Provision of information prior to vacating a unit or other
21 space. Where such owner receives notice that such tenant intends to
22 vacate such unit or other space before reporting information in accord-
23 ance with this paragraph, such owner shall request information relating
24 to such tenant's energy use for any period of occupancy relevant to such
25 owner's obligation to benchmark. Any such tenant shall report such
26 information to the owner of such building prior to vacating such unit or
27 other space or, if such information is not available prior to vacating
28 such unit or other space, as soon as practicable thereafter, regardless
29 of whether such owner has requested information pursuant to this
30 section. Such information shall be reported in a form and manner deter-
31 mined by the department.
32 (iv) Continuing obligation to benchmark. The failure of any or all
33 tenants to report the information required by this paragraph to the
34 owner shall not relieve such owner of the obligation to benchmark pursu-
35 ant to this title, provided that such owner shall not be required to
36 benchmark such information reported by a tenant unless otherwise avail-
37 able to such owner.
38 b. Preservation of documents, inspection, and audit. Owners of covered
39 buildings shall maintain such records as the department determines are
40 necessary for carrying out the purposes of this article, including but
41 not limited to energy and water bills and reports or forms received from
42 tenants. Such records shall be preserved for a period of three years,
43 provided that the commissioner may consent to their destruction within
44 that period or may require that such records be preserved longer than
45 such period. At the request of the department, such records shall be
46 made available for inspection and audit by the department at the place
47 of business of the owner or at the offices of the department during
48 normal business hours.
49 c. Violations. It shall be unlawful for the owner of a covered build-
50 ing to fail to benchmark pursuant to this subdivision. The commissioner
51 shall classify such violation as a lesser violation.
52 3. Direct upload. Information shall be directly uploaded to the bench-
53 marking tool in accordance with the following:
54 a. Direct upload by a utility company or other source. The department
55 shall encourage and facilitate any utility company or any other source
56 authorized by the department to upload directly to the benchmarking
S. 838 6
1 tool, as soon as practicable, information necessary to benchmark a
2 building. Where information is uploaded directly to the benchmarking
3 tool by a utility company or other authorized source, owners and tenants
4 shall not be obligated to request and report such information pursuant
5 to subparagraph (ii) of paragraph (a) of subdivision two of this
6 section.
7 b. Direct upload by the department. The department shall upload
8 directly to the benchmarking tool information on water use at all build-
9 ings that were equipped with automatic meter reading equipment by the
10 department for the entirety of the previous calendar year and that are
11 subject to the benchmarking requirements of this title.
12 4. Suspension. The commissioner may suspend all or part of the
13 requirement to benchmark pursuant to this title upon a written finding
14 that a technological deficiency in the benchmarking tool precludes
15 compliance with this title. The commissioner may lift all or part of any
16 such suspension upon a written finding that such deficiency has been
17 corrected. The department shall notify the governor, the speaker of the
18 assembly, the temporary president of the senate, and the department of
19 taxation and finance promptly upon issuing a suspension or lifting a
20 suspension pursuant to this section.
21 5. Notification and transmission of information. The department of
22 taxation and finance shall:
23 a. Annually notify owners of covered buildings of their obligation to
24 benchmark pursuant to subdivision two of this section, provided that the
25 failure of the department of taxation and finance to notify any such
26 owner shall not affect the obligation of such owner to benchmark pursu-
27 ant to such section.
28 b. Notify owners of covered buildings of any suspension or lifting of
29 a suspension pursuant to subdivision four of this section.
30 c. Make available to the department information regarding owners of
31 covered buildings for which no benchmarking information was generated by
32 the benchmarking tool.
33 6. Disclosure. The department of taxation and finance shall make
34 information generated by the benchmarking tool available to the public
35 on the internet no later than September first, two thousand twenty-four,
36 no later than every September first thereafter for covered buildings
37 whose primary use is residential, as determined by the department of
38 taxation and finance, and no later than September first, two thousand
39 twenty-five, and no later than every September first thereafter for
40 covered buildings whose primary use is residential, as determined by the
41 department of taxation and finance. Such information shall include, but
42 need not be limited to:
43 a. the energy utilization index,
44 b. the water use per gross square foot,
45 c. where available, a rating that compares the energy and water use of
46 the building to that of similar buildings, and
47 d. a comparison of data across calendar years for any years such
48 building was benchmarked. Information generated by the benchmarking tool
49 for the two thousand twenty-two calendar year for covered buildings, and
50 for the two thousand twenty-three calendar year for covered buildings
51 whose primary use is residential, as determined by the department of
52 taxation and finance, shall not be disclosed. Exception: Ratings gener-
53 ated by the benchmarking tool for a covered building that contains a
54 data center, television studio, and/or trading floor that together
55 exceed ten percent of the gross square footage of any such building
56 shall not be disclosed until the department determines that the bench-
S. 838 7
1 marking tool can make adequate adjustments for such facilities. When the
2 department determines that the benchmarking tool can make such adjust-
3 ments, it shall report such determination to the governor, the speaker
4 of the assembly and the temporary president of the senate. Until such
5 determination is made, the department shall report biennially to the
6 governor, the speaker of the assembly and the temporary president of the
7 senate that the benchmarking tool is unable to make such adjustments.
8 7. Report. No later than December thirty-first of two thousand twen-
9 ty-four and two thousand twenty-five, respectively, the department shall
10 prepare, submit to the governor, the speaker of the assembly, the tempo-
11 rary president of the senate, and post on the internet a report review-
12 ing and evaluating the administration and enforcement of this title and
13 analyzing data obtained from the benchmarking tool. Such report shall
14 contain information regarding:
15 a. the energy and water efficiency of buildings covered by this
16 section,
17 b. the accuracy of benchmarked data and whether there is a need to
18 train and/or certify individuals who benchmark,
19 c. compliance with the requirements of this title,
20 d. any administrative and legislative recommendations for strengthen-
21 ing the administration and enforcement of this title,
22 e. the effectiveness of the benchmarking tool in accounting for state
23 of New York conditions, including, but not limited to, high density
24 occupancies, use of steam, large building size, and specific high-energy
25 uses such as data centers, television studios, and trading floors, and
26 f. such other information and analyses as the department deems appro-
27 priate.
28 8. Rules. The department and the department of taxation and finance
29 may promulgate such rules as deemed necessary to carry out the
30 provisions of this title.
31 § 4. This act shall take effect immediately.
