Massachusetts has become one of the first states in the nation to require developers of certain projects to quantify and mitigate greenhouse gas (“GHG”) emissions. On October 19, 2007, the Executive Office of Energy and Environmental Affairs (“EEA”) issued the final MEPA Greenhouse Gas Emissions Policy and Protocol (“GHG Policy”), available here (.pdf). Projects subject to the policy for which developers submit an Environmental Notification Forms (“ENF”) or Expanded Environmental Notification Form (“EENF”) after October 31, 2007 must include GHG quantification and mitigation pursuant to this policy. The MEPA office will also review Notices of Project Change submitted after October 31st on an individual basis to determine whether the project will be required to comply with the policy.
The Massachusetts Environmental Policy Act (“MEPA”) requires developers of projects with significant direct air emissions or transportation impacts to prepare and file Environmental Impact Reports (“EIRs”). The GHG Policy does not make any changes regarding what projects are subject to the EIR filing requirement. Instead, it requires certain projects already subject to the EIR requirement to quantify the potential greenhouse gas (GHG) emissions caused by the project, and identify measures to avoid, minimize or mitigate such emissions.
Although the policy requires quantification of both GHG emissions and any proposed mitigation, the EEA has emphasized that 100% certainty in projections is not required. EEA has also stated that the GHG Policy is not intended to create a numerical GHG emission limit or reduction target. However, EEA has provided an appendix with a very detailed list of potential mitigation measures. Only time will tell how flexible EEA will actually be concerning what types of mitigation will be required under the GHG Policy.
What Projects Will be Subject to the GHG Policy?
The GHG Policy applies if: (1) an Environmental Impact Report is already required and (2) the project falls into one or more of the following categories:
The Commonwealth or a state agency is the project's proponent;
The Commonwealth or a state agency is providing financial assistance;
The project is privately funded, but requires an Air Quality Permit from the Department of Environmental Protection; or
The project is privately funded, but requires a Vehicular Access Permit from the Massachusetts Highway Department.
What Analysis is Required?
If a project is subject to the GHG Policy, the project’s proponent must quantify the potential annual GHG emissions from the project and report this amount in tons emitted per year (tpy) in the EIR. Although project proponents should identify all six of the GHG types covered by the Kyoto Protocol, i.e., CO2, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulphur hexafluoride, the quantification protocol focuses primarily on carbon dioxide. If a project is expected to cause significant emissions of GHGs other than CO2, the developer should identify them in the ENF. At this point, EEA intends to handle quantification of such other GHGs on a case-by-case basis.
Specifically, project proponents must assess potential GHG emissions from three different sources:
- Direct Emissions from Stationary Sources. Stationary sources include boilers, heaters, ovens, or furnaces (including periodic sources, such as emergency generators).
- Indirect Emissions from Energy Consumption. Indirect emissions result from heating, cooling, electricity, and/or steam used at a project site.
- Indirect Emissions from Transportation. Transportation-related emissions include emissions from employees, vendors, and customers.
In their EIR, project proponents must calculate and report the GHG emissions associated with:
- A baseline condition that includes: 1) GHG emissions from energy use, assuming code-compliant (780 CMR) buildings; and 2) transportation-related emissions modeled on a Build with No Mitigation Condition from the standard methodology outlined in the EEA/EOT Guidelines for EIR/EIS Traffic Impact Assessment;
- The total GHG emissions from the Preferred Alternative, including direct emissions from stationary sources, indirect emissions from energy consumption, and indirect emissions from transportation;
- Project Alternatives with greater mitigation of GHGs than the Preferred Alternative.
Assessment of Direct Emissions
A developer must quantify the emissions associated with on-site stationary sources by first estimating the amount of fuel that will be used in such operations. To estimate fuel use, EEA recommends the following energy modeling software: EQUEST, Energy-10, Visual DOE, and DOE2. However, EEA does not require use of these specific models. Any comparable model may be used.
Once fuel usage has been estimated, the project proponent must derive approximate CO2 emissions. EEA recommends use of the Energy Information Administration Documentation for Emissions of GHGs in the United States, 2003 (May 2005) available here.
Assessment of Indirect Emissions from Energy Consumption
Project proponents must next quantify emissions from consumption of electricity, heating, and cooling obtained from off-site sources. As with direct emissions, the proponent must use energy modeling software to estimate such emissions, and should report which energy modeling tool was used, as well as which modeling inputs were evaluated. As the policy notes, there are many different inputs that can affect a building’s energy use. The GHG Policy mentions project size and configuration; type of heating, ventilation and cooling systems; amount of glazing; and potential types of usage and hours of operation. However, it is worth noting that the Appendix to the GHG Policy identifies more than twenty (20) different mitigation measures related to facility design. Many, if not all of those measures relate to design issues that could affect emissions in the first place.
Once total electricity use has been estimated, the proponent must then calculate the total CO2 emissions by multiplying this amount by an emissions factor. Proponents must use the average emissions factors from the ISO-New England Marginal Emissions Report to generate the estimate. The ISO-NE Marginal Emissions Report for 2005 is available here (.pdf).
Indirect Emissions from Transportation
Finally, proponents must estimate GHG emissions from traffic generation. The initial steps of this analysis have been designed by EEA to be consistent with the types of traffic analyses already performed for EIRs. Once vehicle miles traveled have been estimated, the proponent must multiply by a MOBILE6.2 emissions factor provided by EPA (for typical projects, 550.4 g/mile) to determine the amount of CO2 emitted as a result of those trips.
What About Mitigation?
Although the cost to prepare the required analyses will not be trivial, EEA has, to its real credit, worked hard with the real estate industry to try to craft approaches, and off-the-shelf technologies to assessing GHG impacts that will be manageable for project proponents. To a significant degree, they have succeeded, by relying as much as possible on existing approaches, off-the-shelf technologies. EEA has also put one other significant carrot before developers. If developers propose in advance, via their ENF, to implement “exceptional measures” to limit GHG emissions, EEA may allow them to opt out of the quantification analysis. However, at this point, it is not clear what would constitute such “exceptional measures.” Would electricity from a renewable source qualify? How about agreeing to design a building to a certain level of LEED certification?
Given EEA’s apparently real flexibility regarding the assessment side of the equation, the rubber will really meet the road for the GHG Policy in how EEA approaches mitigation. The GHG Policy is clear that it is not merely a data gathering device. EEA repeatedly emphasizes that proponents will have to assess potential mitigation measures and must “explain which alternatives were rejected, and the reasons for the rejection.”
While EEA took pains to emphasize that the GHG Policy is not intended to establish hard limits on GHG emissions, the Appendix provides over 50 “suggested” mitigation measures. Developers and their consultants and attorneys know through experience how easy it is for non-binding “policies” to be implemented by agencies, as though they were binding regulations. Eternal vigilance may be required to prevent that from happening with the GHG Policy. For now, developers must at least be certain to perform the assessment of GHG emissions in accordance with the policy, and to have good reasons for failing to implement mitigation measures suggested by the GHG Policy.