In 2018, Governor Phil Murphy enacted into law the New Jersey Clean Energy Act of 2018 (“Act”), which established benchmarking programs to measure the energy and water performance of buildings. The Act requires, among other things, owners and operators of each commercial building over 25,000 square feet to benchmark their energy and water usage each year for the prior calendar year.
The deadline for the inaugural benchmark submission is October 1, 2023. The deadline for the benchmark submission of each subsequent year will be July 1.
Purpose
The purpose of the benchmarking submission is to provide owners and operators of large commercial buildings with the means to quantify and analyze their building’s energy and water consumption, and to compare that data to similar buildings. Subsequently, owners and operators can evaluate prospects for enhancing performance, leading to diminished energy consumption and associated expenses within their buildings.
Covered Buildings
To determine what constitutes a “commercial building,” the Act utilizes the New Jersey Board of Public Utilities (“Board”) definition, which defines a commercial building as “a building with a tax assessment classification of Class 4A (Commercial) and Class 4C (5 or more residential units).” The Board maintains a publicly available list of commercial buildings required to comply with the Act’s benchmarking requirements – these buildings are referred to as “Covered Buildings” – which can be found here.
According to the Board, the following are not deemed to be Covered Buildings and accordingly do not need to comply with the Act’s benchmarking requirements:
- Industrial buildings (Class 4B)
- Vacant land (Class 1)
- Railroad property (Classes 5A & 5B)
- Church and charitable property (Class 15D)
- Non-profit school buildings
- Federal, county and local government buildings
- Multi-family properties with 4 or less units
- Condominiums
How to Report
Owners and operators of Covered Buildings must submit their energy and water consumption data using the U.S. Environmental Protection Agency's Portfolio Manager tool. Once submitted, the Portfolio Manager will allow owners and operators to securely track and assess energy and water consumption across the owner or operator’s building portfolio. The Portfolio Manager can be found here.
Where to Get the Energy and Water Consumption Data
The prior calendar year energy and water consumption data for Covered Buildings can be obtained directly from the building’s utility provider.
The Board required Regulated Utilities (i.e., PSE&G, South Jersey Gas, NJ Natural Gas, Elizabethtown Gas, Jersey Central Power and Light, Rockland Electric, Atlantic City Electric) to provide an online service for consumers to access their building-level energy and water consumption data by no later than August 1, 2023. To access this service for any of the Regulated Utilities, click here. Once the building owner or operator completes the required data access form on the Regulated Utility’s website, it will be able to request the data for all utilities, including electricity, natural gas and water.
If a building owner or operator’s utility provider is not regulated by the Board, such as a municipal electric or water utility, they will need to contact the utility provider directly to ask for the building-level energy and water consumption data.
Exemptions
Owners and operators of Covered Buildings may seek and potentially qualify for an exemption from the Act’s benchmarking mandate based on the following circumstances:
- New Buildings: For new structures, the benchmarking requirement is postponed until the building has been operational for a complete calendar year. The operational status will be determined using the New Jersey tax assessment database, MOD-IV. A commercial building will not be included in the above-mentioned Covered Buildings list until the second year following its year of construction, as indicated in the MOD-IV database.
- Demolitions: Buildings recently demolished or slated for imminent demolition can be excluded from the Covered Buildings list if the owner submits a demolition certificate for approval.
- Unoccupied: If a building remains unoccupied for an entire year, the building owner could be eligible for an exemption. This requires the submission of an affidavit or certification confirming the non-occupancy status.
- Foreclosure or Bankruptcy: In instances where foreclosure or bankruptcy proceedings are initiated during a specific reporting year, building owners may apply for an exemption for that year.
- Other Conditions: Exclusion from the Covered Buildings list might also apply in other circumstances with valid reasons. For instance, if the building's actual size falls below the threshold; if errors are identified in the Covered Buildings list; if an unregulated utility refuses to provide individual data even with tenant consent; or similar justifiable situations. In these cases, appropriate evidence must be presented to support the request for removal.
To apply for a benchmarking exemption for any of the above reasons, the building owner or operator must submit the Benchmarking Exemption Request Form (link below), along with the appropriate evidence to benchmarking@bpu.nj.gov.
The Benchmarking Exemption Request Form can be found here.
Failure to Report
If an owner or operator of a Covered Building fails to report their required energy and water data by the October 1, 2023 deadline, the building owner or operator is given a 90-day grace period to report such data before they are deemed to be non-responsive. The Act does not authorize the assessment of fines for failure to report and, at this time, there is no penalty for noncompliance.
If you have any questions about this Alert, please contact Joshua M. Greenfield at jgreenfield@riker.com, James M. Maggio, Jr. at jmaggio@riker.com or Hunain Sarwar at hsarwar@riker.com.
