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.

Department of Energy – $22M in Funds available under the Buildings Upgrade Prize


Earlier this week, the Department of Energy (“DOE”) announced $22 Million Dollars in prize money availability under a new program entitled “The Buildings Upgrade Prize” or “Buildings UP“. 

According to the DOE, the Buildings UP program is designed to accelerate the transformation of U.S. buildings into energy-efficient and clean energy-ready homes, commercial spaces, and communities

The Buildings Upgrade Prize is offering more than $22 million in cash prizes and technical assistance to teams across America with winning ideas to accelerate widespread, equitable energy efficiency and building electrification upgrades.

According to Alejandro Moreno, Acting Assistant Secretary for Energy Efficiency and Renewable Energy, “We have a once-in-a-generation opportunity to leverage billions of dollars in funding available through the Bipartisan Infrastructure Law, the Inflation Reduction Act, utility rebate programs, and many other sources to upgrade our existing buildings and help address climate change”.

Per DOE’s press release, proposed solutions can be varied and may include adoption of efficient electric equipment and appliances, including heat pumps and heat pump water heaters, as well as enhanced building efficiency through measures such as insulation and air sealing. Together, these efforts should help reduce carbon emissions and energy costs while improving indoor air quality and occupant comfort.

In Phase 1 of Buildings UP, teams are required to submit ideas for innovative concepts to increase building energy upgrades, choosing to enter one of two pathways: “Equity-Centered Innovation” or “Open Innovation.”

Winning “Equity-Centered Innovation” teams, focused on delivering upgrades to low- and moderate-income homes; small, disadvantaged businesses; and other equity-eligible buildings, will receive $400,000 in cash.

Winning “Open Innovation” teams will receive $200,000 in cash. Winners from both pathways will also receive expert technical assistance and coaching to help bring their ideas to life.

Community-based organizations, state and local governments, Indian tribes, building owners, utilities, nonprofit organizations, energy efficiency program implementers, and other organizations are encouraged to team up and apply.

Phase 1 opens for submissions on February 18, 2023.

Separately, up to 50 Application Support Prizes of $5,000 and 10 hours of technical assistance are available to help new and under-resourced teams complete Phase 1 applications.

The Application Support Prize opens for submissions on Jan. 18, 2023, and will be awarded on a rolling basis until funds are expended.

Buildings UP is administered by the National Renewable Energy Laboratory and is part of the American-Made program, which fast-tracks innovation through prizes, training, teaming, and mentoring. Teams competing in Buildings UP will have access to the American-Made Network, connecting the nation’s entrepreneurs and innovators to America’s national labs and the private sector. Mentoring, tools, resources, and support through the American-Made Network help accelerate the transition of ideas into real-world solutions to achieve clean energy goals.

Buildings UP was developed and funded by the U.S. Department of Energy Building Technologies Office as part of its overall mission to reduce the carbon footprint of the U.S. building stock while maintaining or improving affordability, comfort, and performance.

Phase 1 submissions are due by July 18, 2023.

Parting Thoughts – if you are an owner of a building or a community-based organization, state and local government entity, an Indian tribe, a utility a nonprofit organizations or an energy efficiency program implementers, now is the time to dust off your thinking cap and team with others who can be helpful to apply for these grant funds.  Real money available to assist along with technical know how – what do you have to lose.  

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. We would be happy to discussion your proposed project and how this DOE funding prize might apply to you. For more information or if you have any questions about this post, please contact Brad A. Molotsky, Alice Shanahan, Jeff Hamera, Nanette Heide, Jolie-Anne Ansley, Robert Montejo, Seth Cooley or David Amerikaner or the attorney in the firm with whom you in regular contact or the attorney in the firm with whom you are regularly in contact.







Investments in Clean Buildings Announced by New York Governor

On the Duane Morris Construction Law Blog, attorney Jose A. Aquino writes that:

New York Governor Kathy Hochul announced new investments in clean and efficient buildings. As part of her 2023 State of the State, Governor Hochul introduced a series of building decarbonization initiatives, including zero-emission for new construction and the phase out of the sale of new fossil fuel heating equipment.

Read the full post.

 

New ESG Disclosure Rules: EU Corporate Sustainability Reporting Directive

In April 2021 the European Commission presented a proposal for a Corporate Sustainability Reporting Directive (CSRD) that would amend the current Non-Financial Reporting Directive (NFRD) and form part of the wider EU policy to require companies to publicly disclose information and data around environmental, social affairs and governance matters.

On 28 November 2022, the European Council adopted the CSRD following adoption by the European Parliament on 10 November 2022. The CSRD will come into force 20 days after publication in the EU Official Journal and EU member states will then have 18 months to incorporate it into their national laws.

To read the full text of this blog post by Drew Salvest, Natalie Stewart and Rebecca Green, please visit the Duane Morris London Blog.

ESG – NJBPU issues Order requiring Energy and Water reporting for all Buildings over 25,000 SF

In September, 2022, the New Jersey Board of Public Utilities (NJBPU) issued an order requiring the owner or operator of every commercial building over 25,000 square feet in the state to benchmark their energy and water use as part of an effort to spur energy efficiency.

Building owners must use the U.S. Environmental Protection Agency’s online Portfolio Manager Tool to measure and analyze their respective facilities’ energy and water usage. NJBPU’s website has information about how to report benchmarking. The first benchmarking submissions are due on Oct. 1, 2023, for energy and water consumed in 2022.  Portfolio Manager is a FREE tool from the EPA that enables owners to input data and measure and monitor consumption.

“This is the next important step in implementing a best in class, statewide, energy efficiency program which will help us achieve Governor Murphy’s goal of 100% clean energy by 2050,” said NJBPU President Joseph L. Fiordaliso. “Creating a system of benchmarking allows us to measure the use of energy (electricity and gas) and water by the state’s biggest buildings and support building owners in reducing energy and water usage and operating costs.”

Benchmarking is intended to help commercial building owners and operators measure and analyze their respective facilities’ energy and water usage and compare it to other similar buildings. Building owners and operators can use this information to make informed decisions about taking advantage of financial incentives for energy efficiency improvements.

The NJBPU initiative is directed by the  New Jersey’s Energy Master Plan, which calls for transparent benchmarking and energy labeling. The program it intended to enable building owners to obtain aggregated, building-level energy and water data from their utility companies through a data access service. The Board will also establish a “help desk” to assist building owners as they measure and analyze their respective buildings’ energy and water performance.

This program will also protect individual ratepayers’ energy and water use information by requiring utilities to securely provide aggregated, building-level data. Building owners are required to obtain their tenants’ affirmative, written consent for the utilities from which they receive services to provide building-level energy and water data to the building owner in certain situations to protect individual energy and water use information.

Consent will be required only when there are fewer than four tenants in a building or if one tenant exceeds 50% of the energy or water consumption.

More information about building benchmarking through NJBPU is available at https://njcleanenergy.com/commercial-industrial/programs/energy-benchmarking.

Food For Thought – NJ through the NJBPU Order joins California and Washington state as well as over 42 cities and 2 counties in requiring some form of energy and water disclosure mandate.  While many do not like being forced to report which is understandable, having this mandate will enable the State and tenants to better access which buildings are more efficient than others when it comes to energy and water consumption that are often paid for by common area charges assessed to these tenants. If and to the extent the SEC’s proposed rules on climate disclosure become effective, having a tool that allows for measurement and verification of various data sets will help bolster various companies ability to measure, verify and report on such data in the energy, water, waste, recycling, materials and air quality space.

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. We would be happy to discussion your proposed project and how these new rules  might apply to you. For more information or if you have any questions about this post, please contact Sheila Rafferty-Wiggins, Brad A. Molotsky, Alice Shanahan, Jeff Hamera, Nanette Heide, Joel Ephross, Jolie-Anne Ansley, Robert Montejo, Seth Cooley, David Amerikaner or the attorney in the firm with whom you in regular contact or the attorney in the firm with whom you are regularly in contact.

EPA proposes to Designate 2 new PFAS and PFOS Chemicals as Hazardous Substances!

Earlier this week on August 25, 2022, the U.S. Environmental Protection Agency (EPA) took a significant step under Administrator Regan’s PFAS Strategic Roadmap in an effort to protect people and communities from the health risks posed by certain PFAS, also known as “forever chemicals.”

EPA is proposing to designate two of the most widely used per- and polyfluoroalkyl substances (PFAS) as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as “Superfund.”

The proposal applies to perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including their salts and structural isomers, and, according to EPA’s press release, is based on significant evidence that PFOA and PFOS may present a substantial danger to human health or welfare or the environment. According to various reports, PFOA and PFOS can accumulate and persist in the human body for long periods of time and evidence from laboratory animal and human epidemiology studies indicates that exposure to PFOA and/or PFOS may lead to cancer, reproductive, developmental, cardiovascular, liver, and immunological effects.

If finalized, the rulemaking would trigger reporting of PFOA and PFOS releases, providing the EPA with improved data and the option to require cleanups and recover cleanup costs to protect public health and encourage better waste management.

EPA is also focused on holding responsible those who have manufactured and released significant amounts of PFOA and PFOS into the environment. In its press release, the EPA announces that they will use enforcement discretion and other approaches to ensure fairness for minor parties who may have been inadvertently impacted by the contamination. EPA is also doing further outreach and engagement to hear from impacted communities, wastewater utilities, businesses, farmers and other parties during the consideration of the proposed rule.

If this designation is finalized, releases of PFOA and PFOS that meet or exceed the reportable quantity would have to be reported to the National Response Center, state or Tribal emergency response commissions, and the local or Tribal emergency planning committees.

EPA stated that they anticipate that a final rule would encourage better waste management and treatment practices by facilities handling PFOA or PFOS. The reporting of a release could potentially accelerate privately financed cleanups and mitigate potential adverse impacts to human health and the environment.
Additionally, the proposed rule would, in certain circumstances, facilitate making the polluter pay by allowing EPA to seek to recover cleanup costs from a potentially responsible party or to require such a party to conduct the cleanup. In addition, federal entities that transfer or sell their property will be required to provide a notice about the storage, release, or disposal of PFOA or PFOS on the property and a covenant (commitment in the deed) warranting that it has cleaned up any resulting contamination or will do so in the future, if necessary, as required under CERCLA 120(h).

EPA will be publishing the Notice of Proposed Rulemaking in the Federal Register in the next several weeks. Upon publication, there will be a 60-day public comment period.

As a subsequent step, EPA anticipates issuing an Advance Notice of Proposed Rulemaking after the close of the comment period on its proposal to seek public comment on designating other PFAS chemicals as CERCLA hazardous substances.

EPA has taken a number of recent actions on PFAS including:

• Releasing drinking water health advisories for 4 PFAS – using the best available science to attempt to address PFAS pollution, protect public health, and provide critical information quickly and transparently;

• Making available $1 billion in grant funding through President Biden’s Bipartisan Infrastructure Law;

• Issuing the first Toxic Substances Control Act PFAS test order under the National PFAS Testing Strategy;

• Adding five PFAS Regional Screening and Removal Management Levels that EPA uses to help determine if cleanup is needed;

• Publishing draft aquatic life water quality criteria for PFOA and PFOS;

• Issuing a memo to address PFAS in Clean Water Act permitting;

• Publishing a new draft total adsorbable fluorine wastewater method; and

• Issuing the 5th Unregulated Contaminant Monitoring Rule to improve EPA’s understanding of the frequency that 29 PFAS are found in the nation’s drinking water systems and at what levels and preparing to propose a PFAS National Drinking Water Regulation by the end of 2022.

Food For Thought – while some argue that the EPA has gone to far in their regulatory rule making, others view these proposed designations as a big step in the appropriate direction to regulate and capture critical data on the location of PFAS and PFOS so that these chemicals can be trapped and then eliminated from our water system and our sewage systems.  Many reports now exists which indicate the negative impact of PFAS and PFOS on the human body.  Wherever you come out on this topic, taking steps to reduce our own exposure and our children’s exposure to PFAS and PFOS and to focus on entrapment and non-hazardous destruction of these impactful chemicals is continuing to be the focus of many within the industry.  New and improved technology for breaking down PFAS and PFOS into its constituent parts in a non-off gassing, safe manner are a very near future event and can be done.  

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. We would be happy to discussion your proposed project and how these new PFAS and PFOS rules might apply to you. For more information or if you have any questions about this post, please contact Brad A. Molotsky, Alice Shanahan Jeff Hamera, Nanette Heide, Joel Ephross, Jolie-Anne Ansley, Robert Montejo, Seth Cooley or David Amerikaner or the attorney in the firm with whom you in regular contact or the attorney in the firm with whom you are regularly in contact.

 

ESG – What is included the Inflation Reduction Act?

Earlier this week the President signed into law the Inflation Reduction Act.  Without pontificating on its virtues or short comings, here is how the Inflation Reduction Act breaks down by the numbers:

HEALTH CARE:

Cutting Prescription Drug Cost

As estimated by the office of Management and Budget:

5-7 million Medicare beneficiaries could see their prescription drug costs reduced because of the provision allowing Medicare to negotiate prescription drug costs; 

50 million Americans with Medicare Part D will have their costs at the pharmacy capped at $2,000 per year, directly benefiting about 1.4 million beneficiaries each year; 

3.3 million Medicare beneficiaries with diabetes will benefit from a guarantee that their insulin costs are capped at $35 for a month’s supply.

Lowering Health Care Costs – per the White House:

13 million Americans will continue to save an average of $800 per year on health insurance premiums under Obama Care;

3 million more Americans will be eligible for health insurance; and

The current uninsured rate is at an all-time low of 8%.

CLEAN ENERGY:

Lowering Energy Costs

$14,000 in direct consumer rebates for families to buy heat pumps and other energy efficient home appliances;

a 30% tax credit for solar on roofs program, saving families and estimated $9,000 over the life of the system or at least $300 per year;

Up to $7,500 in tax credits for new electric vehicles and $4,000 for used electric vehicles, helping families save $950 per year – noting there are requirements that various parts of the car be made in America which at this time is not part of the supply chain;

The Administration has stated that their goal in the IRA is to power homes, businesses, and communities with much more clean energy by 2030, including adding:

950 million solar panels;
120,000 wind turbines; 
2,300 grid-scale battery plants;
Advance cost-saving clean energy projects at rural electric cooperatives serving 42 million people;
Strengthen climate resilience and protect nearly 2 million acres of national forests; and 
Creating millions of good-paying jobs making clean energy in America.
Reducing Harmful Pollution

The hope is that through these actions, the IRA will help reduce greenhouse gas emissions by about 1 gigaton in 2030, or a billion metric tons – 10 times more climate impact than any other single piece of legislation ever enacted.

Moreover, the Administration is incenting carbon capture technology in order to deploy clean energy and reduce particle pollution from fossil fuels to avoid up to 3,900 premature deaths and up to 100,000 asthma attacks annually by 2030.

Fuel For Thought – while some argue that the IRA is too expensive and that carbon reduction goals are not necessary, others view these steps as a good step but not nearly enough to reduce green house gas emissions as set forth in the Paris Accord by 2030.  Wherever you come out on this topic, taking steps to reduce our own personal greenhouse gas impact are within our own power.  As such, if you don’t believe that humankind contributes to green house gas impacts and global warming then try doing something to help your own personal reduction to support those that really believe this is a serious issue.  Your own reduction cannot hurt and it just might help if we all engage and look to help.

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. We would be happy to discussion your proposed project and how the Inflation Reduction Act might apply with you. For more information or if you have any questions about this post, please contact Brad A. Molotsky, Jeff Hamera, Nanette Heide, Joel Ephross, Jolie-Anne Ainsley, Robert Montejo, Seth Cooley or David Amerikaner or the attorney in the firm with whom you in regular contact or the attorney in the firm with whom you are regularly in contact.

 

Financing: C-Pace for Multi-Family Residential Projects Finally Approved in PA

A new day dawns in Pennsylvania for mixed use residential rental projects and C-PACE financing. C-PACE stands for Commercial Property Assessed Clean Energy Financing and has now been approved in over 28 states in the US,

C-PACE financing provides borrowers with a low-cost, long term financing option that typically supplements senior financing from traditional banks and can act to reduce required equity needed for a given project.

Terms of C-PACE vary by state but many C-PACE lenders will provide funds for up to 30 years, at approximately 5.25% for approximately 25-30% of the total project cost. As such, C-PACE financing is only slightly more expensive than conventional debt and has a much longer term, and is much cheaper than traditional real estate transaction equity.

C-PACE allows existing and new properties to improve their infrastructure, reduce operating expenses and thereby increase overall value. Eligible improvements typically include energy efficiency, renewable energy, seismic and storm water measures and are typically available for office, industrial, mixed use and hotel projects.

Prior to the passage of SB 635 earlier this week, PA’s C-PACE program did not allow for residential rental mixed use projects to participate. Due to the hard work of many constituents, the legislature amended their statute to now permit mixed use rental residential to qualify as a “qualifying commercial property.”

C-PACE acts as on-bill financing for the cost of applicable approved improvements. Costs are assessed much like a sewer easement or real property tax bill on the borrowers bill. C-PACE loans cannot be accelerated in the event of a default which works to protect the senior lender to the project from being outbid at a foreclosure. C-PACE lenders are willing to lend funds to projects despite this limitation as they have a first priority lien status for outstanding amounts then due and when a project continues to receive energy the bill will include the C-PACE charge – i.e., the C-PACE lender may have to wait a bit to get paid but they will be paid so long as the property is receiving and being billed for energy.

The focus of the C-PACE program is to enable energy and water efficiency upgrades at properties, as well as resiliency improvements, water conservation and renewable energy projects.

Fuel For Thought – once the Bill is signed by Governor Wolf and goes into effect in approximately 60 days, one of the hottest property types in Pennsylvania (i.e., multi family rental residential) will qualify for C-PACE on a go forward basis and will likely see a marked uptake in the amount of C-PACE lending in the Pennsylvania arena. New Jersey has also approved C-PACE lending but regulations have not been published by the NJEDA since passage of C-PACE in 2021 (stay tuned on that front),

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. We would be happy to discussion your proposed project and how C-PACE might apply with you. For more information or if you have any questions about this post, please contact Brad A. Molotsky, Jeff Hamera, Nanette Heide, Joel Ephross, Robert Montejos or David Amerikaner or the attorney in the firm with whom you in regular contact or the attorney in the firm with whom you are regularly in contact.

Data Centers – From the Clouds – Much Ado about ESG!

We had the opportunity to chat with some of the leading owners and builders of data centers space today on our Data Centers Task Force group meeting. Fascinating and fun conversation with Aaron Binkley of Digital Realty and David Hall and David Sitkowski from Clune Construction Company.

Some key take aways from the conversation:

– multiple new entrants into the data center space are putting pressure on rents (upward) with a lot of venture capital funding the new entries

– Increased focus by Owners (and customer/users) on renewable energy with an understanding that the renewable energy is cheaper but NOT Free.

– Energy markets remain a bit volatile for renewable energy with federal tariff on solar panels continuing to negatively impact supply

– Climate related reporting from the EU taxonomy, Singapore and potential SEC proposed rules creating a continued ESG focus by owners and customers in the Date Center space

– Supply chain issues continue to negatively affect delivery times and cost – causing consternation but opportunity as well

– Noting generators are taking in certain locations over 72 weeks for delivery and switch gear breakers taking over 16 months for delivery from the normal 6 months

– Labor Shortages continue in various markets delaying jobs – e.g., Pacific NW on carpentry and Phoenix on electricians and other trades

– Deals continue to increase in size and scale despite increased need for local based service of smaller scale

– Increased cooperating and sharing of work pipeline to enable design and build on time

– increased federal work in the data center site space

– increased interest by customers in LEED and Energy Star certifications but not everywhere

– increased interest in power coming from solar and wind sources both on site and off site through power purchase agreements (e.g., in VA, TX, CA, Illinois and NJ)

– customers and employees continuing to ask about sustainable features in buildings and in power supply and other areas of design

– Communities are beginning to wake up to data centers and in certain locations object to their noise and power consumption, noting the lack of traffic and school impacts given their use

– Water is becoming more and more relevant to the conversation and how water is or is not used in cooling systems (noting – Digital Realty does not use water in its cooling solution but towns where they operate are starting to ask about this resource)

– Permitting for generators which used to be relatively easy to obtain is now starting to get a bit trickier and harder to get on an over the counter baiss given potential air quality issues and diesel for generator issues – resulting in additional time for development permits

– Site Selection – certain jurisdictions with a high amount of data centers are beginning to increase real estate taxes for the data center user/owner which will likely, in turn, have these owners focus on other locations which are not so pricey by way of taxes.

From the Cloud – on balance, labor shortages, supply chain and increased focus by customers on ESG is driving various changes to design and build in the data center space to ensure timely and on budget deliveries. While supply chain issues should clear up in Q4 to Q1 of 23′, the focus on ESG should continue well into the future as more and more customers are adopting GhG reduction targets and more and more owners follow the lead of big industry players like Digital Realty and Prologis.

Duane Morris has an active Data Centers Team as well as an ESG and Sustainability Team to help organizations and individuals plan, respond to, and execute on your data center project and your Sustainability and ESG planning and initiatives. 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, Jeff Hamera, Joel Ephross, Robert Montejos or David Amerikaner or the attorney in the firm with whom you in regular contact.or the attorney in the firm with whom you are regularly in contact.

 

New Climate-related Financial Disclosure Regulations for UK Companies

On 19 January 2022 the Companies (Strategic Report) (Climate-related Financial Disclosure) Regulations 2022 (the “Regulations”) were published in the UK. As of 6 April 2022, these Regulations are now in force. Companies that are subject to the Regulations will need to comply with the new reporting requirements for accounting periods ending on or after 6 April 2022.

What do the Regulations do?

The Regulations amend the Companies Act 2006 and expand the type of companies that are required to provide information in accordance with the recommendations of the Task Force on Climate-Related Financial Disclosures (“TCFD”) as part of their strategic reports. The Regulations require mandatory disclosure of material information in the four TCFD categories: Governance, Strategy, Risk Management, and Metrics / Targets.

It is mandatory for companies that are subject to the Regulations to disclose climate and sustainability-related information outlined in the Regulations in the non-financial information section of their strategic reports. The information required to be provided depends on the type of company, for example, AIM companies are subject to less extensive requirements. These reports will be publicly available, accessible free of charge and filed at Companies House.

Similar requirements will also apply to certain limited liability partnerships (LLPs) in the UK. The LLP Regulations amend The Limited Liability Partnerships (Accounts and Audit) (Application of Companies Act 2006) Regulations 2008 and require certain LLPs to incorporate TCFD-aligned climate disclosures in their annual reports.

In-scope companies should familiarise themselves with the new reporting requirements and be aware of the potential for overlap with other reporting requirements. The BEIS Guidance offers additional detail on the expected disclosures. In general, companies and LLPs will be required to disclose the following information:

  • a description of the governance arrangements of the company or LLP in relation to the assessment and management of climate-related risks and opportunities;
  • an explanation of how the company or LLP identifies, assesses and manages climate-related risks and opportunities;
  • details of the processes the company or LLP uses to identify, assess and manage climate-related risks and how these processes are integrated into the overall risk management process of the company or LLP;
  • identification of the principal climate-related risks and opportunities arising in connection with the operations of the company or LLP;
  • a description of the actual and potential impacts of the principal climate-related risks and opportunities on the business model and strategy of the company or LLP;
  • an analysis of the resilience of the business model and strategy of the company or LLP, taking into consideration different climate-related scenarios;
  • a description of the targets used by the company or LLP to manage climate-related risks and to realise climate-related opportunities and of performance against those targets; and
  • the key performance indicators used to assess progress against targets and a description of the calculations on which those key performance indicators are based.

Which companies do the Regulations apply to?

The Regulations apply to UK companies that are:

  1. AIM / traded companies;
  2. Banking companies;
  3. Authorised insurance companies;
  4. Companies with a high-turnover;

Provided that each such company has more than 500 employees (or together with its subsidiaries has more than 500 employees).

Are there any exemptions to the Regulations?

A company will not be subject to the Regulations if it is a subsidiary and annual climate-related disclosure is included in its parent company’s strategic report for the group. To be exempt, the parent must be a UK company (or LLP) and the strategic report must be prepared for a financial year that ends on or before the subsidiary’s financial year. The report must also include non-financial and sustainability information in respect of the subsidiary.

UK subsidiaries of a non-UK parent:

However, where a U.K. subsidiary has a non-UK parent that reports on a consolidated basis, the exemption does not apply. This means a non-UK parent may be exempt but their UK subsidiaries may be subject to the Regulations.

Non-UK companies with UK subsidiaries should be aware that their UK subsidiaries may fall within the scope of the Regulations and consider whether their strategic reports should be on an individual or consolidated basis with respect to their UK subsidiaries.

If you have any questions about this post, please contact Drew D. SalvestNatalie A. StewartRebecca Green any of the attorneys in our Banking and Finance Industry Group or the attorney in the firm with whom you in regular contact.

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, please contact Brad A. MolotskyDavid AmerikanerNanette HeideDarrick MixVijay BangeSteve Nichol, or the attorney in the firm with whom you are regularly in contact.

 

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