Contact: Josh Tulkin, josh.tulkin@sierraclub.org, 650-722-3171
Sierra Club, CCAN, and partners are calling on the House and Senate to reverse its harmful proposed budget amendment which would undermine the state’s climate goals and reverse product of two years of transparent public engagement and rule-making.
On April 1st (no joke), the joint House and Senate Budget Conference Committee appointed to finalize the 2025 budget gave preliminary approval to an amendment that would gut and delay a nationally recognized climate program designed to reduce pollution in buildings while helping ratepayers reduce utility bills.
While appearing to be an innocuous reporting provision, the language would actually require MDE to withdraw a proposed regulation, delay implementation for up to a year, and restrict MDE from meeting a statutory deadline established by the Climate Solutions Now Act just 2 years ago, while directing them to undertake new studies without providing any additional staffing or funding.
Specifically, the amendment restricts the Air Quality Planning Program at the Maryland Department of the Environment (MDE) from spending any funds to adopt, establish, or enforce something called “site energy use intensity” until MDE “Calculate[s] building benchmarks based on MDE’s analysis of the results of direct emissions data reported by the owners of covered buildings.”
Rather than directly amending the original statute through standard legislative process, this action utilizes an opaque budget process conducted behind closed doors in the last 6 days before end of the session and thereby alters the statute approved by the MGA.
Below is a summary of the impacts:
1. The proposed amendment would require MDE to make “substantial changes” to the regulation, and requires MDE to withdraw and re-issue, per state law. Maryland State government article 10-111 through 10-113 outlines the process for developing regulation. The law explicitly says “if a unit wishes to change the text of a proposed regulation so that any part of the text differs substantially from the text previously published in the Register, the unit may not adopt the proposed regulation unless it is proposed anew and adopted in accordance with the requirements of §§ 10–111 and 10–112 of this subtitle.” Removing an entire emissions target category would unquestionably constitute text that “differs substantially.”
2. Implementing BEPS without Energy Use Intensity will harm tenants. Inclusion of “energy use intensity” was a priority for affordable housing and tenants' rights advocates, who worked with legislators in 2022 and with MDE throughout the regulatory process. Without efficiency standards, building owners are incentivized to achieve emissions standards by installing inefficient electric resistance heaters, which are cheap to install (good for the building owner) but cost a lot to run (bad for tenants). This is why the U.S. EPA recommends that jurisdictions adopt BEPS with co-equal emissions and EUI standards, just like Maryland's BEPS.
3. Requiring MDE to undertake new rule-making would delay implementation by at least 8-12 months. Developing the regulation took approximately 10 months. This included robust public input, pro-bono technical support from the Department of Energy and two national energy laboratories, presentation and approval by the Air Quality Citizens Advisory Committee (AQCAC), issuing of the draft regulation, review by Administrative Executive Legislative Review Committee (AELR), and the final regulation. Anything less than this input process would erode public confidence in the regulatory process itself.
4. Delaying implementation because of the proposed amendment would lead MDE to miss other statutory deadlines.
The Climate Solutions Now Act (CSNA), passed in 2022, directed MDE, by June 2023, to issue regulations to achieve the statutory goals, including:
Achieve a 20% reduction in net direct GHG emissions on or before January 1, 2030
Include site Energy Use Intensity targets by building type
Require building energy benchmarking, starting in 2025.
The proposed amendment would prohibit MDE from meeting these deadlines for issuing the regulations and starting the benchmarking. Further, by delaying EUI targets until 2026 or 2027, it would give building owners only 3 years to comply with the BEPS 2030 target.
5. The opaque process lacked transparency and failed to engage stakeholders. Advocates and stakeholders have participated in 2 years of official processes, offering timely technical support, input, and public comments through the appropriate channels. Utilizing a budget amendment to amend and delay a statutorily required process undermines and erodes confidence in the public engagement processes accessible to average Marylanders.
Advocates reached out to the co-chairs of AELR and House and Senate leadership to discuss any concerns.
Building Energy Performance Standards - Timeline
The development of the Building Energy Performance Standards (BEPS) has been a multi-year process involving significant public engagement and stakeholder input.
- November 2021
Building Energy Transition Plan is issued by the MCCC. A key recommendation of this report is: Create A Building Emissions Standard
- April 2022
Passed CSNA with 68% of MDGA voting yes. Includes provisions requiring a “20% reduction in net direct GHG emission on or before Jan 1, 2030 as compared with 2025 levels for average buildings of similar construction and net zero- direct GHG emission on or before Jan 1 2040. MDE adopt regulations pertaining to the section and include Energy Use Intensity targets by building type.
MDE starts two year BEPs regulatory process:
- Mid-2022, all of 2023, and 2024 to date
Numerous stakeholder meetings throughout.
- Fall 2022
MDE engages with stakeholders and gathers comments on proposed BEPS. Includes 14 public education and input sessions.
- June 2023
MDE completes first draft of BEPS regulation as required by CSNA.
Conducted all required engineering and analysis to ensure the proposed regulation met the statutory required emissions reductions.
Secured invaluable pro-bono technical support from the U.S. Department of Energy, U.S. Environmental Protection Agency, and the Lawrence Berkeley and Pacific Northwest National Labs to do the data analysis.
- September 2023
As required by law, MDE presented the rule to and received approval from the Air Quality Control Advisory Council.
- December 2023
MDE formally submits draft regulation to MD Register and initiates month-long public comment period.
- January 2024
MDE hosts a public hearing and receives public comments on BEPS which marks the end of the public comment period. MDE begins reviewing public comments.
- February 2024
AELR places hold on final adoption of BEPS.
- April 2024
Speaker and President submit budget amendment language on last day of budget to reverse BEPS regulation with NO opportunity for public input or transparency.