New York City recently adopted its own version of the New York State Energy Conservation Construction Code by enacting Local Laws 84, 85, 87, and 88. These local laws significantly expand the number of buildings required to meet its energy efficiency standards (NYC Code). A primary factor in this expansion was the elimination of a standard that permitted the continuation of non-compliant building systems. The NYC Code forms part of PlaNYC, which intends to reduce carbon emissions 30 percent by 2030. These laws, with some exemptions, apply to private sector buildings larger than 50,000 gross square feet. The NYC Code became effective for private sector buildings as of July 1, 2010.
The benchmarking portion of the NYC Code defines a data center as a room or rooms used primarily to house high-density computing equipment, such as server racks, used for data storage and processing (NYC Code §28-309.2). Virtually every building likely to house a data center will be covered by this Code.
Covered buildings must benchmark total annual energy use by gathering and uploading energy information to an internet-based database developed by the U.S. Environmental Protection Agency or any complementary interface designated by the NYC Office of Long Term Sustainability (Sustainability Office). A building owner must also obtain energy usage information from its separately metered tenants.
The Sustainability Office will share the information, including an energy utilization index (energy use per square foot), a comparison of energy use by reporting building to similar buildings, and a comparison to prior years for which benchmarking data are available, with the public.
An exemption to the information to be made publicly available by the Sustainability Office recognizes that a determination of the energy usage and efficiency of a building may be skewed by a data center.
“Ratings generated by the benchmarking tool for a covered building that contains a data center, television studio, and/or trading floor that together exceed ten percent of the gross square footage of any such building,” which are not to be disclosed “until the Office of Long-Term Planning and Sustainability determines that the benchmarking tool can make adequate adjustments for such facilities.” (NYC Code §28-309.8).
A similar concern regarding the impact of data centers may be found the NYC Code’s description of the topics to be covered in reports by the Sustainability Office, which includes a report on:
“[t]he effectiveness of the benchmarking tool in accounting for New York City conditions, including, but not limited to…specific high-energy uses such as data centers, television studios, and trading floors.” (NYC Code §28-309.9).
If an owner fails to benchmark in compliance with the benchmarking law, the owner will be issued a violation.
The fact that the benchmarking requirements may not apply to data centers does not mean that data centers will be exempt from the direct or indirect impact of other requirements of the NYC Code. For example, a building’s HVAC equipment required to serve data centers would be covered by the NYC Code.
Applications for building permits for new construction or renovation work to the NYC Department of Buildings (DOB) must comply with energy-efficiency requirements in NYC’s Code for mechanical systems, envelope, lighting, HVAC, hot water equipment. and power systems together with energy management controls. In order to demonstrate compliance, each application must include a professional statement, an energy analysis, supporting drawings, and other documents. Exceptions include buildings whose energy usage is entirely supplied from renewable energy sources or historic buildings.
Lighting Upgrades and Submetering
Owners or landlords of commercial tenant spaces within covered buildings must upgrade lighting to meet NYC Code requirements and install submeters in each tenant space larger than 10,000 gross square feet on or before 2025.
Covered buildings must file energy-efficiency reports once every ten years. Prior to filing, an owner must conduct an energy audit and perform retro-commissioning measures within the building. Unless exempted, a report on the energy audit and a report on the retro-commissioning are to be included in the energy-efficiency report.
The energy audit identifies modifications and improvements to base building systems, including the installation of new equipment or energy efficiency technologies, and must be performed in accordance with ASHRAE requirements by a DOB-approved agency or a registered design professional.Energy audits must address several specific areas involving the base building systems. These include:
- Reasonable energy conservation measures to reduce energy use and related operating costs
- The cost of each ECM, its projected annual energy savings and payback period for each ECM
- The building’s energy consumption as benchmarked
- Energy use of each existing base building system
- An analysis of energy use within tenant spaces and the effect of tenant use upon base building systems.
This latter category can be expected to bring attention to data centers. Base building systems are those that use energy or impact energy consumption, including the building envelope, HVAC systems, water heating systems, and conveying systems together with electrical and lighting systems. The energy audit must be performed by or under the supervision of an energy auditor.
A retro-commissioning report must be prepared with respect to the base building systems to make sure that these are operating efficiently. It also involves making corrections and adjustments to bring them up to code. For example, this process requires a review of and addressing issues such as performing necessary cleaning of boilers and adjusting valves, sensors, and controls. It also includes a review of, and necessary changes to, operational practices in base building systems to achieve optimal efficiency.
Retro-commissioning must be performed by an authorized agent such that sufficient analysis, corrections, and testing will be done so as to determine whether the base building systems are efficient and being properly run. Retro-commissioning is not required if the building has received certain LEED certifications.
Compliance with the NYC Code will result in reduced energy expenses through increased energy efficiency but these savings will necessitate additional investments (until amortized) by building owners. Existing New York State Energy Research and Development Authority (NYSERDA) funding should continue to be available to mitigate to cost of certain of the required ECMs. The NYC Code will also impose legal responsibilities and meeting its requirements will require building owners to contract with an array of professionals, contractors, and vendors.
Peter Funk is a partner at Funk & Zeifer LLP where he practices in the area of energy law with a focus on energy generation and energy management/conservation projects. Funk's column Legal Perspectives discusses legal issues pertaining to energy generation and conservation.