Contract documents

March 27, 2024

As building performance and emissions standards, Environmental, Social and Governance (ESG) requirements, and carbon disclosure laws steadily increase, data has become a necessary tool to support regulatory compliance.  When it comes to this data, there are a variety of issues that practitioners need to be aware of.

 The role of data in regulatory compliance

Building performance data gained increased attention with the development and implementation of benchmarking and disclosure laws in various jurisdictions.  Benchmarking and disclosure laws essentially require building owners to calculate the performance of their buildings and disclose this information to a regulatory authority, such as a city or county government.  This data is then compared or “benchmarked” against similar buildings, and publicly disclosed in some format.

The general idea was that this information would help consumers make informed decisions, while also creating some friendly competition among building owners.  Benchmarking and disclosure laws were some of the first regulatory tools that attempted to target the efficiency of the existing building stock.

More recently, an ever-increasing number of jurisdictions have enacted, or committed to enact, building performance or emissions standards (BPS).  Performance Standards are a unique regulatory framework, and important climate action tool, because they require existing buildings to perform at specific levels.  To determine and prove that buildings are performing as required, owners need to collect, and verify,  various data points.  In multi-tenant buildings, this means also usually that owners need to collect this data from tenant spaces.

In addition to BPS, there are also carbon disclosure laws, ESG goals and requirements, and other building data points – including water use – that are increasingly regulated.  All of these new requirements and issues mean that owners (and in some cases tenants) need access to data related to various aspects of budling performance.

As such, there are questions, costs, and issues associated with collecting this data.

 Utilities as an important data source

Utilities can play a key role in data collection and sharing, but if tenants are billed directly, owners do not necessarily have access to this data. To resolve this issue, and because most Building Performance Standards put the onus on owners to provide the data necessary to comply, some jurisdictions specifically require utilities to provide owners with necessary data.  The EPA Accessing Utility Data for Benchmarking website includes an interactive map, which outlines utilities that provide this type of data.  And to further address data access, organizations such as the Institute for Market Transformation have developed a model utility data access law and the Better Buildings Initiative collects and organizes a variety of helpful energy access resources.

 Other considerations regarding data

Collecting and sharing data can be a sensitive topic.  As such, building professionals need to carefully consider various issues.  At a high level, the US Department of Energy provides several key data collections considerations, including:   time interval of data collection, spatial granularity of data, structure of the type of customer, the type of recipient of the data, and the intended use of the data.  The intended use of the data is a key consideration, as noted by REvolve, the Digital Real Estate Innovation Council, “Clarity about who has the rights to use data and for what purpose must be made clear in all situations and ideally should be written into lease agreements and technology supplier contracts.”

Some additional considerations for building professionals:

• Data format and payment or reimbursement for associated administrative costs
• Privacy and confidentiality considerations
• Reasonable levels of verification and assurance, given the data’s source and intended use, including responsibility (and potential liability) for accuracy
• In multi-tenant buildings (both commercial and residential), leverage leases as a tool to provide owner access to tenant data, and streamline the data collection processes by clarifying issues including format, cost sharing, etc.

Designers, contractors and owners will all want to think and consider the implications of mandatory (and voluntary) data collection and sharing requirements.  As the data issues continue to quickly evolve, building practitioners will need to stay up to date on the latest challenges, opportunities, and resources.

Nicole DeNamur is an attorney and sustainability consultant, based in Seattle, WA.  Her company, Sustainable Strategies, helps clients identify and manage the risks of sustainable innovation so they can pursue robust sustainability goals.  She is also an award-winning contributing author and has developed and taught graduate-level courses at the University of Washington and Boston Architectural College. Nicole was named Educator of the Year by the International WELL Building Institute, and Sustainable Strategies hosts an online course, Accelerated WELL AP Exam Prep.

AIA Contract Documents software allows you to efficiently create, share, and manage the industry’s leading construction documents. Request an ACD5 Product Demo Here.

AIA Contract Documents has provided this article for general informational purposes only. The information provided is not legal opinion or legal advice and does not create an attorney-client relationship of any kind. This article is also not intended to provide guidance as to how project parties should interpret their specific contracts or resolve contract disputes, as those decisions will need to be made in consultation with legal counsel, insurance counsel, and other professionals, and based upon a multitude of factors.