Innovative New Jersey Low-Carbon Concrete Law Could Jumpstart Infrastructure Decarbonization Nationwide

Recently enacted legislation in New Jersey to encourage the use of low-carbon concrete in state-funded construction projects could not only yield significant reductions in the carbon footprint of Garden State bridges, sidewalks, and foundations, but could be used as a model by other states and the federal government.

The law, known as the Low Embodied Carbon Concrete Leadership Act (LECCLA) (S-287), offers tax incentives for producers who supply state projects with concrete containing reduced quantities of embodied carbon. As a first step, the New Jersey Department of Environmental Protection (NJDEP) will publish rules establishing baseline embodied carbon quantities for concrete. Beginning in 2024, concrete producers who supply at least 50 yards of concrete to state-funded projects and whose product contains less embodied carbon than the baseline will be eligible for corporation business tax (CBT) credits of up to 8 percent of the total cost of the contract.

Several means of reducing embodied carbon in concrete are incentivized by the law. Producers can obtain tax credits of up to 5 percent by reducing embodied carbon in concrete by: (i) improving energy efficiency at the cement plant or concrete plant stages; (ii) substituting low carbon fuels for carbon-intensive fuels at the cement plant or concrete plant stages; (iii) using locally sourced ingredients in concrete mixes, reducing transportation-related emissions; (iv) reducing cement content in concrete mix by substituting materials such as fly ash, slag, or recycled ground-glass pozzolan (collectively known as supplementary cementitious materials, or SCMs), to reduce the quantity of emissions-intensive cement in the mix; (v) capturing and storing point source carbon emissions during the cement plant or concrete plant stages; or (vi) utilizing and storing carbon in concrete. An additional 3 percent tax credit will be available to producers who use carbon capture utilization and storage (CCUS) technology in the concrete manufacturing process. The two tax credits can be combined.

Concrete producers will need to submit verified Environmental Product Declarations (EPDs) for the concrete they supply to state projects in order to become eligible for the tax credits. EPDs are measurements of the life cycle environmental attributes of a particular product, in this case total carbon emissions, using an ISO-published methodology.

Because of the low margins in the highly competitive concrete industry, producers may be able to take advantage of any cost savings generated by these tax credits to pass along lower bids to project proponents, and thereby win additional business. Companies that invest in carbon-reducing practices, such as increasing use of SCMs in their mixes, switching to cement produced using lower carbon fuels or at plants employing CCUS technology, or finding suppliers in closer proximity to their ready-mix plants, will have a significant advantage over companies that are slower to act. Investment in carbon reduction will, potentially, become an essential catalyst to staying competitive in the market.

The tax credit system is also uniquely designed to stay ahead of the curve.  NJDEP has the power to shift the concrete carbon baseline lower, thereby forcing producers to bring embodied carbon levels down even further to continue to qualify for the full tax incentives over time. The approach in New Jersey goes further than the federal Buy Clean initiative, which sets embodied emissions benchmarks for various materials that federal project suppliers must meet to be considered for federal contracts. In New Jersey, suppliers must bring embodied emissions below the threshold in order to qualify.

One criticism is that the state has only allocated $10 million in tax credits per year to qualifying companies, and no producer may win more than $1 million in credits in any year. But the law will do its job if it succeeds in nudging the concrete industry toward a lower carbon norm.

Many stakeholders hope, and some even predict, that the New Jersey approach will be quickly adopted by other states. Neighboring New York has been studying a low-carbon concrete program and is set to consider legislation in the coming months. Now that New Jersey has acted first, many hope that New York will also opt for an incentive-based approach that could rework the economics of concrete production in the Empire State. Other states, such as California, could also consider the model in the coming years. Of course, the biggest prize would be the federal government, which is one of the biggest concrete procurement entities in the world and could radically reshape the industry if it adopted an incentive-based model for carbon reduction.

The New Jersey program also arrives just as municipalities across the nation, including New York, Boston, Chicago, Seattle, and others, are implementing programs to reduce carbon emissions from their built environments. Broad availability of low-carbon concrete would improve the emissions profiles of many buildings and their supporting infrastructure if widely adopted, and cities would be wise to consider incentive programs similar to New Jersey’s in order to put this technology into wider use.

Duane Morris has an active ESG and Sustainability Team to help organizations and individuals plan, respond to, and execute on your Sustainability and ESG planning and initiatives. For more information or if you have any questions about this post, please contact David Amerikaner, Sheila Raftery Wiggins, Brad A. Molotsky, Alice Shanahan, Jeff Hamera, Nanette Heide, Joel Ephross, Jolie-Anne Ansley, Robert Montejo, Seth Cooley, or the attorney in the firm with whom you are regularly in contact.

Autonomous Vehicle Legislation: State Updates

Note: This post was drafted by Ryan J. Stevens and appears on the Duane Morris Government Strategies blog.

Autonomous vehicles have automated driving systems that allow for self-driving, with little or no human input. While fully automated vehicles are not readily available at this point, lawmakers are already taking action with a myriad of autonomous vehicle legislation. As we have seen with E-Bikes, drones, and personal delivery devices, government regulation is not far behind the new technology.

At least 29 states have already enacted various autonomous vehicle legislation.

One piece of autonomous vehicle legislation introduced by Connecticut lawmakers is H.B. 6486. The bill would require the Connecticut Department of Transportation to develop a program to test and operate vehicles equipped with automated driving systems. It would also eliminate the autonomous vehicle testing pilot program (which never started).

Generally, the bill would require the Department of Transportation to adopt regulations that include both state and federal laws and national best practices on testing. Also, it would set application requirements for owners of ADS-equipped vehicles to seek approval to either test or operate their autonomous vehicles on state roads. Further, the bill would require ADS-equipped vehicles to comply with federal safety standards, be registered, and be adequately insured.

The bill would define a fully autonomous vehicle as an “ADS-equipped vehicle” with an automated driving system designed to function without an operator and classified as level four or level five by SAE. The bill would further define “ADS” (automated driving system) as the hardware and software that are collectively capable of performing the entire dynamic driving task on a sustained basis.

Florida lawmakers recently passed HB 1289 related to autonomous vehicles. Under the bill, a low-speed autonomous delivery vehicle would be allowed to operate on streets or roads with speed limits under 35 miles-per-hour or less. However, the vehicle may operate between 35 and 45 miles per hour under certain exceptions.

The autonomous vehicle legislation further requires low-speed autonomous delivery vehicles to be equipped with headlamps, stop lamps, turn signal lamps, taillamps, reflex reflectors, and vehicle identification numbers. The bill also requires such vehicles to be covered by an automobile insurance policy. It allows counties and municipalities to prohibit low-speed vehicles on any road under its jurisdiction if necessary in the interest of public safety.

The bill defines a “low-speed autonomous delivery vehicle” as a fully autonomous vehicle not designed for or capable of human occupancy.

H. 3475, introduced by lawmakers this year, would require autonomous vehicles registered in Massachusetts to register in the state to continue to meet federal standards and regulations for a motor vehicle. The autonomous vehicle legislation stipulates that such vehicles shall not engage in interstate commerce or transport eight or more people or goods for hire unless a human operator is present in the autonomous vehicle. They can monitor the performance of the vehicle and intervene if required.

Nevada became the first state to authorize the operation of automated vehicles in 2011 via Assembly Bill 511. In the 2021 legislative session, the Nevada Assembly passed AB 412, which relates to neighborhood occupantless vehicles, defined as low-speed vehicles not designed, intended, or marketed for human occupancy.

Under the bill, neighborhood occupantless vehicles would be allowed to operate on a roadway with a speed limit of greater than 35 miles per hour but no more than 45 miles per hour.

New Jersey
New Jersey lawmakers passed Assembly Joint Resolution 164 in 2019, creating the New Jersey Advanced Autonomous Vehicle Task Force. The Task Force was created to conduct a study of advanced autonomous vehicles and make recommendations for laws and rules.

The resolution called for the Task Force to issue a report to the Governor and the legislature within 180 days of the Task Force’s initial meeting. The report was to include:

  1. an evaluation of existing state laws that may impede the testing and operation of autonomous vehicles on public roads in New Jersey,
  2. an evaluation of existing state and federal laws related to autonomous vehicles as it relates to licensing, registration, insurance, liability, law enforcement, and
  3. accident reporting, land use, road and infrastructure design, public transit, and workforce changes.

The Task Force was also required to make recommendations for implementing pilot programs for autonomous vehicles on public roads and to evaluate existing legislation and regulations in other states concerning the issue.

The Task Force created by AJR 164 issued its report in 2020, which included the recommendation to establish a two-step permitting process to allow companies to test and then employ HAVs (highly autonomous vehicles) on public roadways in the Garden State. The Task Force also recommended the New Jersey Motor Vehicle Commission as the lead agency responsible for approving and overseeing both testing and deploying HAVs in the state and recommended requiring all testing on public roadways be conducted with a safety driver present in all vehicles.

On the legislative side, A1189 would establish a fully autonomous vehicle pilot program. The bill would require the New Jersey Motor Vehicle Commission, in consultation with the state Department of Transportation, to establish the New Jersey Fully Autonomous Vehicle Pilot Program, allowing for autonomous vehicle testers to operate fully autonomous vehicles on New Jersey highways. The pilot program would last one year under the legislation.

Texas previously enacted autonomous vehicle legislation in 2017, allowing for the testing and deployment of automated vehicles on public roads.

Lawmakers in Texas introduced HB 3026 in the current legislative session. Under the bill, an autonomous vehicle designed to operate exclusively by the automated driving system for all trips is not subject to motor vehicle equipment laws or regulations in Texas that relate to or support motor vehicle operation by a human driver and are not pertinent for an automated driving system.

Further, if a vehicle safety inspection is required to operate an autonomous vehicle, the vehicle must automatically pass inspection with respect to any equipment covered by the bill’s exemption or any equipment not subject to inspection under Texas law.


Duane Morris has an active ESG and Sustainability Team to help organizations and individuals plan, respond to, and execute on Sustainability and ESG planning and initiatives within their own space. We would be happy to discussion your proposed project with you. For more information, or if you have any questions about this post, please contact Brad A. MolotskyDavid AmerikanerNanette HeideDarrick MixMichael Schwammor the attorney in the firm with whom you are regularly in contact.

New York City’s Local Law 97: Energy Conservation Requirements That Open Opportunities

On April 20, Duane Morris LLP hosted a webinar on New York City’s Local Law 97, featuring:

  • Brad A. Molotsky, Partner, Duane Morris LLP, speaking about the legal and policy landscape;
  • Robert Politzer, President and Founder, GREENSTREETNYC, speaking about turning liability into opportunity with Local Law 97 compliance;
  • Crystal Smith, New York Market Director, Greenworks Lending at Nuveen, speaking about C-PACE financing;
  • Dan Egan, Senior Vice President of Energy and Sustainability, Vornado Realty Trust, speaking about the large New York property owner’s perspective; and
  • David Amerikaner, Special Counsel, Duane Morris LLP, moderating.

Local Law 97 was adopted in 2019 as part of New York City’s Climate Mobilization Act (CMA), a package of legislation designed to reduce greenhouse gas emissions from the City’s buildings by 40% by 2030 and by 80% by 2050, using 2005 as the baseline. The CMA includes bills aimed at encouraging the use of solar panels and green roofs, amending building energy efficiency grades, and authorizing the use of Commercial Property-Assessed Clean Energy (C-PACE) Financing to fund energy efficiency upgrades and building retrofits as well green energy installations.

But the centerpiece of the CMA is Local Law 97, which applies, generally, to buildings over 25,000 square feet in the City, with some exceptions, and establishes carbon emission intensity caps that begin to take effect in 2024 and become more stringent over time. The law will require covered buildings to understand their carbon footprints and to reduce their emissions through several mechanisms, including by implementing efficiency improvements and generating green energy, among others. It is estimated that over 50,000 buildings in New York will fall within the ambit of the CMA (over 60% of the buildings within the City), which results in over 3.15 billion square feet of coverage.

The April 20 webinar produced a lively discussion. Below are some of the takeaways from the discussion:

  • Timing. The CMA was passed in 2018 but in order to give building owners time to game plan, evaluate and then execute on carbon reduction plans, will become operative in 2024 with required reporting starting in May, 2025.
  • Failure to comply will be expensive. A covered building must pay $268 for every metric ton that that its carbon emissions exceed the cap established for its building type, beginning with the first compliance period in 2025. There are also fines for filing false emissions reports and failure to file a report.
  • But compliance can reduce operating expenses and modernize a building at minimal cost. A building energy audit is likely to reveal “low-hanging fruit,” such as efficiency upgrades that can be financed at low cost and can reduce energy operating expenses for the property. In addition, clean energy generation can be incorporated into a building with little or no upfront cost and affordable financing, and on-site generation will improve a building’s bottom line over time.
  • C-PACE financing is helpful to making improvements pencil out. C-PACE financing, authorized in New York and soon to be launched in NYC, allows building energy efficiency upgrades to be financed at low rates and paid back through an additional assessment on the property tax bill over a 20 to 25 year period. Note that the CMA also allows renewable energy credits and other offsets to count towards a building compliance targets.
  • New York’s efforts to decarbonize its electric grid will help. The state’s goal is to create all its electricity from carbon-free sources by 2040. As the renewable energy needed to meet this goal continues to be more readily available, NYC buildings will be powered by electrons that were generated using less and less carbon, easing the path to compliance with Local Law 97 over time.
  • The right thing to do for the planet is increasingly converging with the right thing to do for the bottom line. Vornado Realty Trust, for example, set a goal years ago to decarbonize its buildings by 2030. Vornado is just one of many examples of companies that have continued to embrace sustainability, energy efficiency and carbon reduction as smart business, that just happens to help the rest of society in reducing their tenants’ carbon emissions and helping to fight climate change.

A recording of the conversation is available here.

Duane Morris has an active ESG and Sustainability Team to help organizations and individuals plan, respond to, and execute on Sustainability and ESG planning and initiatives within their own space. We would be happy to discussion your proposed project with you. Contact your Duane Morris attorney for more information. We will continue to track New York’s carbon reduction mandates and are available to advise you and your colleagues on compliance with Local Law 97 and other regulations as they are rolled out.

If you have any questions about this post, please contact David Amerikaner, Brad A. Molotsky, Christiane Schuman Campbell, Darrick Mix, Dominica Anderson, Nanette Heide or the attorney in the firm with whom you are regularly in contact.

Renewable Energy Legislation: Pathways to 100% Clean Energy

Note: This post was drafted by Ryan J. Stevens and appears on the Duane Morris Government Strategies blog.

Renewable portfolio standards (RPSs) are regulatory mandates to increase the production of energy from renewable sources such as wind, solar, biomass and other alternatives to fossil and nuclear electric generation. States have been actively making changes to their RPSs through renewable energy legislation. Generally, RPSs require that a specified percentage of electricity that utilities sell come from renewable energy sources. A report from 2018 found that roughly half of all renewable electricity generation growth and capacity in the last nearly two decades has been associated with state RPS requirements. Some lawmakers are even looking to reach 100% renewable energy in their states.

Twenty-nine states, along with the District of Columbia, and three territories, have an RPS. According to the NRDC, six states, the District of Columbia, and Puerto Rico are committed by state law to achieving 100% carbon-free electricity by 2050 or sooner, with another ten states having non-binding goals of reaching 100% renewable energy.

Last year, lawmakers introduced H. 2836, which would transition the Commonwealth to 100% clean, renewable energy by 2045, including the energy consumed for electricity, heating and cooling, transportation, agricultural uses, industrial uses, and all other uses by all residents, institutions, businesses, state and municipal agencies, and other entities operating in Massachusetts. Further, the legislation stated the Commonwealth’s goal to obtain 100% of the electricity consumed by all residents, institutions, businesses, state and municipal agencies, and other entities operating in Massachusetts from renewable energy sources by 2035.

The bill defined “renewable energy” as energy produced from sources meeting the following criteria:

  • virtually pollution-free, producing little to no global warming pollution or health-threatening pollution,
  • inexhaustible, coming from natural sources that are regenerative or unlimited,
  • safe, having minimal impacts on the environment, community safety, and public health, and
  • efficient, wise use of resources.

Massachusetts Governor Charlie Baker issued a formal determination letter last year establishing net-zero greenhouse gas emissions as the Commonwealth’s new legal emissions limit for 2050.

Two pieces of legislation are pending introduction in the Pennsylvania legislature to achieve 100% renewable energy. Two cosponsor memos were circulated, one in the House and one in the Senate, which would transition the Commonwealth to 100% renewable energy by 2050. Previous versions of these bills have not made it through the legislature in past sessions.

A previous iteration of these bills called for the energy consumed for electricity, heating and cooling, transportation, agricultural uses, industrial uses, and all other uses by residents, institutions, businesses, state and municipal agencies, and other entities operating in Pennsylvania to reach 100% renewable energy by 2050. That bill also called for 100% of the electricity consumed by residents, institutions, businesses, state and municipal agencies, and other entities in Pennsylvania to come from renewable energy sources by 2035.

Hawaii lawmakers passed House Bill 623 in 2015, updating and extending the state’s clean energy initiative and renewable portfolio standards by setting a goal of 100% renewable energy by 2045. Hawaii was the first state to move towards 100% renewable energy.

The legislation calls for each electric utility company that sells electricity for consumption to establish a renewable portfolio standard of:

 15% of its net electricity sales by December 31, 2015;
30% of its net electricity sales by December 31, 2020;
40% of its net electricity sales by December 31, 2030;
70% of its net electricity sales by December 31, 2040; and
100% of its net electricity sales by December 31, 2045.

The Hawaii legislature passed another bill, House Bill 1509, the same year as House Bill 623. House Bill 1509 called for the University of Hawaii to establish a goal of becoming net-zero concerning energy use by January 1, 2035. The bill resulted in the University of Hawaii becoming the first university in the country to set a 100% renewable energy goal.

In 2019, Maine lawmakers passed L.D. 1494, which Governor Janet Mills approved. The legislation lays out the state’s renewable energy goals: (1) 80% of retail electricity sales by January 1, 2030, and (2) 100% of retail electricity sales by January 1, 2050. The 80% RPS is up from 40% today.

At the same time, Governor Mills also signed L.D. 1679, establishing the Maine Climate Council to help lead the state’s efforts to reduce greenhouse gas emissions as required under L.D. 1494.

In 2019, Nevada lawmakers passed SB 358, setting new goals for the state’s energy standards portfolio. Nevada increased its RPS from 25% by 2025 to 50% by 2030. State law now requires each provider to generate, acquire, or save electricity from portfolio energy systems or efficiency measures that are no less than 50% of the total amount of electricity sold to its retail customers.

Nevada currently has a 50% by 2030 requirement, with a non-binding 100% carbon-free goal by 2050.

Federal Efforts
Currently, renewable fuel standards are set state-by-state, creating a patchwork of regulatory schemes with which utilities must contend. Because of this energy providers, many of which have already set ambitious climate goals, have called for a national standard.

In Congress, Rep. Yvette Clarke (D-N.Y.), a member of the Energy and Commerce Committee, reintroduced her legislation with Rep. Peter Welch (D-Vt.) that would create a national renewable energy and efficiency standard “in the coming weeks.” The bill would require electric utilities to get 55% of their supply from renewables by 2030. It also calls for a 22% decrease in electricity use and a 14% reduction in natural gas use in the next 15 years.

In the White House, President Biden has called for a national clean energy standard. That standard would, over time, increase the amounts of electricity generated from fuels that do not emit the greenhouse gases. In addition to wind and solar, this national standard would include things like hydropower and nuclear. However, it remains the legislative path for such a standard remains unresolved.

Duane Morris has an active ESG and Sustainability Team to help organizations and individuals plan, respond to, and execute on Sustainability and ESG planning and initiatives within their own space. We would be happy to discussion your proposed project with you. For more information, or if you have any questions about this post, please contact Brad A. Molotsky, David Amerikaner, Nanette Heide, Darrick Mix, Michael Schwamm, or the attorney in the firm with whom you are regularly in contact.

Green Infrastructure Stormwater Management Rules Take Effect in New Jersey

Amendments to New Jersey’s Stormwater Management Rules, N.J.A.C. 7:8, requiring the use of “green infrastructure” measures for stormwater management took effect on March 2, 2021.

Green infrastructure encourages the infiltration of stormwater into the ground, promoting natural filtration of pollutants and sediment and thereby reducing discharge impacts on streams, rivers, and other waterways. The new rules make green infrastructure the preferred and predominant method for managing stormwater for all regulated residential and non-residential projects.

Previously, the state’s Stormwater Management Rule had allowed projects to use traditional engineered structures such as pipes and culverts to manage stormwater, although the Department of Environmental Protection (NJDEP) had encouraged property owners and project proponents to make use of green infrastructure through financial and technical assistance. The rule change formalizes the state’s requirement that new projects implement green infrastructure measures, such as rain gardens, bioretention basins, vegetated swales, pervious paving, and green roofs, as part of project planning and design.

NJDEP adopted amendments to the Stormwater Management Rule on March 2, 2020; the amendments allowed a year before the rule took effect to allow projects in the system to proceed under existing rules, and to allow municipalities to adopt revised local ordinances and to train municipal review staff.

Going forward, any application for a residential development in the state will be reviewed under the revised Stormwater Management rules. Any application for a non-residential project will be reviewed for compliance with the local stormwater control ordinance, which is required under a municipality’s Municipal Separate Storm Sewer System (MS4) permit. Under the MS4 permit, the stormwater control ordinance must be at least as stringent as NJDEP’s Stormwater Management rules.

Additionally, any applications submitted to NJDEP under its Flood Hazard Area, Freshwater Wetlands, and Coastal Zone Management programs will be reviewed by NJDEP under the new rules.

By making green infrastructure a requirement in new development, New Jersey is taking decisive action to advance Governor Murphy’s stated commitment to improving the management of the state’s watersheds.  The change will improve the sustainability of the state’s waterways and will reduce the runoff of harmful pollutants and sediments.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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