Sue Lani Madsen: Clean Buildings Act spawns ridiculous regulations

Head-shakingly ridiculous describes the reactions of some attendees at a recent professional development workshop on the Clean Buildings Act.

It wasn’t the fault of the workshop presenter, Michael James of Custom Engineering Consultants, who several times pleaded with the audience, “Don’t shoot the messenger.”

The responsibility lies squarely with Gov. Jay Inslee’s fixation on decarbonization at all costs, the extreme progressives controlling the Legislature’s Democratic caucus, and a compliant Commerce Department writing rules micromanaging the operation of more than 11,600 buildings across Washington.

According to the Department of Commerce’s 2023 report to the Legislature, 666 of those buildings are in Spokane County, 92 in Whitman County and 43 in Stevens County.

Here’s how it works. Let’s say in 2024 you complete the construction of a new building meeting the stringent 2021 Washington State Energy Code. Heck, you were such an earnest advocate for Inslee’s vision or you just wanted to spend less on energy that you complied with the new code even before it went into effect this year. The building passes all of its inspections, you get your certificate of occupancy and turn on the lights. Let the productivity begin.

Except meeting the energy code doesn’t matter to the authoritarians in the Inslee administration. You are guilty of being an energy waster until proving yourself innocent.

Now you must trace the convoluted pathways of the Clean Buildings Act, a process with zero overlap with the energy code. There are compliance forms, benchmarking, the calculation of an Energy Usage Intensity Target, an energy audit, and an energy management and building management plan.

For an older existing building, energy auditors connected with energy contractors might conclude the best way to meet operational targets is for you to purchase some of that equipment they’re selling. According to James, the Department of Commerce is encouraging building owners to take out a loan and “throw money at the building” in response to the audit reports. Why should you? If you buy the systems and don’t meet the targets, you won’t get fined $1.50 per square foot plus $5,000 every five years.

Independent energy auditors may be better able to navigate the process to avoid recommendations for mandatory capital improvements. Nothing may actually be accomplished, but the state is happy.

And you get to do this every five years to prove you are not recklessly extravagant and incapable of responding to normal market forces encouraging thrift.

The rules are being phased in, with three deadlines for Tier 1 commercial buildings, based on size. The deadline for buildings 220,000 square feet and larger is June 1, 2026. Approximately 180 Spokane-area buildings fall into this category, James said. Approximately 300 buildings in the range of 90,0001 to 220,000 square feet face a 2027 deadline, and buildings from 50,000 to 90,000 are on deck in 2028.

The Department of Commerce will be sending notices to building owners based on data gleaned from assessors’ records in all 39 counties.

The rules apply to public and privately owned buildings, so here are a few Spokane Public School examples for scale. Lewis and Clark High School, at 316,000 square feet, is an example of the first class; Sacajawea Middle School, 140,000 square feet, is in the second group; and Mullan Road Elementary, 51,464 square feet, is in the final group.

At an estimated cost of 50 cents per square foot for analysis and planning, that’s $158,000 for LC and $70,000 for Sacajawea. For all 34 Spokane Public Schools elementary schools, the fees will be over $875,000.

There are state grants available to school districts to help pay the costs until the appropriation runs out, but the money is all coming out of the same pockets – yours, as a taxpayer.

And then there’s Tier 2, which includes commercial buildings less than 50,000 but more than 20,000 square feet, and all multifamily residential buildings over 20,000 square feet.

So far, Tier 2 building owners only have to do the planning parts and “are not currently required to meet a performance metric,” according to the Commerce website.

The operative words there are “not currently.”

Building performance is a function of the occupants as well as the insulation, windows and systems. Owners of Tier 1 buildings are responsible for meeting energy use, regardless of tenants’ actions.

While commercial leases might be able to impose some control on retail and office tenants, Tier 2 multifamily buildings with residential leases will not.

When a vaping teenager leaves the windows open in January and grandma cranks the heat up to 85 degrees, you as the building owner will get to pay any fines levied by the Department of Commerce.

Commerce did not respond to a question asking what happens if a building owner just ignores the notification letter altogether. Paying fines may be less hassle than complying.

In addition to a new branch of bureaucracy, the Clean Buildings Act is growing a new market for consultants, both independent architects/engineers and those connected to suppliers of energy management equipment. It’s a funny way to support the Department of Commerce’s mission to “promote economic vitality across the state” by creating jobs at the expense of commercial property owners, public property managers and housing affordability.

Anyone thinking of building in the state of Washington might be rethinking those plans.

Contact Sue Lani Madsen at rulingpen@gmail.com.