By Pace Law School Professor Nicholas A. Robinson

Agenda 21, the action plan negotiated at the UN Conference on Environment and Development in Rio de Janeiro in 1992, was almost entirely silent on issues of energy and the problems that burning fossil fuels had produced. At that time the oil producing nations had prevented adoption of recommendations on energy issues. This year, in Johannesburg, a Plan of Implementation was adopted by the delegates from the 191 nations attending the United Nations’ World Summit on Sustainable Development (WSSD). This plan for the first time, contains explicit recommendations for energy conservation and innovations in clean technologies. Thus while on some basic issues agreement was not reached at the Summit, such as how the Johannesburg Plan of Implementation will be in fact implemented, as a policy forum to select priorities, the Johannesburg Summit advanced some important environmental objectives.

The Action Plan

In the Johannesburg Plan of Implementation nations agree to take joint actions “to improve access to reliable and affordable energy services … sufficient to facilitate the … goal of halving the proportion of people in poverty by 2015.” In order to meet this ambitious target, the nations have agreed on six priority recommendations:

1) “Improve access to reliable, affordable, economically viable, socially acceptable and environmentally sound energy services and resources.” This entails giving priority attention to rural electrification and decentralized energy systems, which in places like much of Africa are likely to not be part of a centralized national power grid. It requires accelerated research into hydrogen fuel cell technology, and wider use of wind and solar power, or isolated small head hydro-electric power in mountain areas.

2) “Improve access to modern biomass technologies.” This entails using what is now agricultural or silvacultural (agriculture of trees) waste as an energy asset. Biomass is to be considered for commercial operation, and use in rural areas.

3) “Support the transition to the cleaner use of liquid and gaseous fossil fuels, where considered more environmentally sound, socially acceptable and cost-effective.” Whether any fossil fuels can be used without exacerbating greenhouse gas emissions is a serious question. The previous investments in fossil fuel energy systems makes it clear that innovative legal and economic measures will be needed to effect this transition, but the Johannesburg Plan of Implementation is silent on this aspect.

4) “Develop national energy policies and regulatory frameworks that will help to create the necessary economic, social and institutional conditions in the energy sector” in order to meet the goals in the first recommendation. Emphasis is given to doing so in rural, semi-urban and urban areas. This recommendation expressly recognizes the need for reforms in energy law, such as those that the IUCN Legal Specialist Group is studying. These recommendations invite more detailed analysis of what sort of regulatory frameworks are needed for licensing energy systems, for economic incentives and disincentives to promote sustainable systems, and for procedures for impact assessment and public participation in energy/environmental decision-making. Above all, before any effective regulatory reforms can be fashioned, there is a need to re-assess the fundamental principles and policy that should guide sustainable energy policy. These principles need to be incorporated into national energy statutes and regulations.

5) “Enhance international and regional cooperation” to meet the above ends, again “with special attention to rural and isolated areas.” This will require improvements in international environmental governance systems, which was a priority for the WSSD in its preparation, but one about which no consensus could be realized at Johannesburg. Part X of the Johannesburg Plan of Implementation urged the nations to make the existing systems of multilateral cooperation work more effectively; however, in the energy sector, there is an absence of institutional systems to undertake the cooperation called for here. This is another weakness in the recommendations that will need to be addressed.

6) “Assist and facilitate on an accelerated basis…the access of the poor to energy systems as set forth in recommendation one above. This re-iterates the relationship of energy to poverty alleviation. With over 80% of the people of Africa, for instance, having no access to electricity, it is imperative that sustainable development give priority to deploying decentralized renewable energy systems, and develop and deploy hydrogen fuel cell systems to generate electricity in remote places.

Background and Cooperation

These energy recommendations build on two years of study and recommendations by the World Energy Assessment (WEA), prepared by the UN Development Programme, and by the work of the Energy Law Specialists Group of the Commission on Environmental Law within the International Union for the Conservation of Nature and Natural Resources (IUCN). The chair of this Energy Law Specialists Group is Prof. Richard L. Ottinger of Pace University. He led the IUCN Delegation to the 9th annual meetings of the UN Commission on Sustainable Development, where energy issues were debated for the first time. The reforms of Johannesburg would not have been possible without this previous groundwork.

Since there is no international body responsible for implementing these recommendations, it will be important for the IUCN Energy Law Specialists Group to continue to work for the implementation of these recommendations at the national level, and to promote international cooperation toward that end. Pace’s Energy Project, in cooperation with IUCN and others, plans to conduct training programs around the world. As the problems caused by modification of the Earth’s climate from green house gas emissions become better understood, IUCN and Pace perceive that there will be a growing demand for the energy reforms recommended in the Johannesburg Plan of Implementation.

Public/Private Partnerships

The call for energy reform led to a number of public-private partnership initiatives that were announced at side events during the Johannesburg Summit. Nine European major electrical generating companies signed agreements with the UN to facilitate developing sustainable energy projects in developing nations. The European Union announced a $700 million initiative on clean energy, and the USA announced a commitment of $43 million in 2003. The UN Environment Programme announced a new project called the “Global Network on Energy for Sustainable Development,” to facilitate the transfer of clean and green energy system to developing nations. It will be up to the UN Commission on Sustainable Development, and the environmental non-governmental organizations and clean energy companies, to ensure that these partnerships accomplish what they have announced.

Act Locally

Back in 1972, at the UN Stockholm Conference on the Human Environment, Dr. Rene Dubos advocated that we think globally and act locally.” The global thinking on energy now provides a common framework for concerted local action. Energy law in the USA is largely within the authority of the State governments. Within Westchester County and New York State, much can be done to implement these recommendations. If FCWC members wish to do their part to stabilize Earth’s climate, then acting locally on energy recommendations urged by FCWC and others should become the order of the day.

Professor Nicholas Robinson is Kerlin Distinguished Professor of Environmental Law, Pace University School of Law and participant in the Johannesburg World Summit on Sustainable Development on behalf of the International Union for the Conservation of Nature and Natural Resources

New York Leads: The Green Building Tax Credit

By Craig Kneeland

On this year's New York State Taxes, building owners and property lessees can claim tax credits for their Green Buildings efforts. In May 2001, Governor George Pataki signed into law the nation's first Green Building Tax Credit (GBTC). The GBTC is a 25 million dollar income tax credit for owners and tenants of buildings that meet energy, indoor air quality, materials, commissioning, water conservation, appliance, and size criteria as set out in the State regulations, maintained by the NYS Department of Environmental Conservation. Taxpayers receive 20% of the credits for which they are eligible each year for a five year period, provided they continue to meet the criteria established in the regulations.

Multiple dwellings (permanent and transient occupancy, seniors, adult residential care), business, mercantile (display and sale of merchandise), assembly (amusement, civic, dining, patriotic, political, religious, social and sports), and institutional qualify. The minimum building size is 20,000 square feet; the minimum tenant space size is 10,000 square feet.

The energy efficiency component is performance-based, requiring new buildings and tenant spaces to use 65% of the energy that a 1991 New York State Energy Conservation Construction Code (Energy Code) -compliant building would. Rehabilitated tenant space and buildings may use 75% of the energy allowed by the Energy Code. The energy use requirements for office buildings range from 55% to 75% of the Energy Code, depending on the percentage of office space in the building and whether the application is for a tenant space or a whole building.

New York's Green Building Tax Credit offers three compliance paths. The first is a green base building, where those areas not intended for occupancy by a tenant or owner are designated as green. Because developers typically have no control over what tenants do in their leased space, this option was created to ensure that developers do not have to depend on their tenants to receive the benefits of the GBTC. The base building tax incentive is 5% of allowable costs, which are capped at $150 per square foot. This makes the green base building tax incentive worth a maximum of $7.50 per square foot.

The second path is a green tenant space, which may or may not be within a green base building. The individual tenant space tax incentive is 5% of allowable costs, which are capped at $75 per square foot. This makes the green tenant space tax credit worth a maximum of $3.75 per square foot. There can be multiple green tenant spaces within a single building; any owner-occupied space in a green base building must be green tenant space.

The third path is green whole building tax credit where a tax credit of 7% of the allowable costs is permitted, so that the base building receives $10.50 per square foot ($150 x .07) in incentives and the tenant space receives $5.25 per square foot ($75 x .07). If a green base building, green tenant space or green whole building is located in an economic development zone, the incentives increase by one percent (5% becomes 6%, 7% becomes 8%).

Additional credits are available for fuel cells, photovoltaics, and air-conditioning equipment that uses green refrigerants, if installed in a green base building, tenant space or whole building. The tax credit cannot be used for these measures alone; all other green criteria must also be met.

The Green Building Tax Credit requires that licensed architects and professional engineers certify compliance with the GBTC. The regulations require record keeping of performance measures such as annual energy consumption, yearly results of air monitoring, annual confirmation that smoking requirements have been maintained, tenant green building guidelines, requests to remedy indoor air quality problems, as well as initial and monthly results of photovoltaic and fuel cell performance.

As for government building compliance, Governor Pataki has signed Executive Order 111 that calls for the green building guidelines in State properties to be based upon thosein the GBTC regulations and in the Leadership in Energy and Environmental Design (LEED™) program, developed by the US Green Building Council. These efforts ensure that future major State building construction programs will have Green Building benchmarks to achieve.

For more information see the New York State Energy Research and Development Agency's web site at http://www.nyserda.org/green.html or call me at 518-862-1090, ext.3311.

Craig Kneeland is Project Manager for Green Buildings at NYSERDA

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