[Senate Report 111-167]
[From the U.S. Government Publishing Office]
111th Congress
2d Session SENATE Report
111-167
_______________________________________________________________________
Calendar No. 335
FEDERAL AGENCY ENERGY EFFICIENCY IMPROVEMENT ACT OF 2009
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 1830
TO ESTABLISH THE CHIEF CONSERVATION OFFICERS COUNCIL TO IMPROVE THE
ENERGY EFFICIENCY OF FEDERAL AGENCIES, AND FOR OTHER PURPOSES
April 12, 2010.--Ordered to be printed
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware SCOTT P. BROWN, Massachusetts
MARK L. PRYOR, Arkansas JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana GEORGE V. VOINOVICH, Ohio
CLAIRE McCASKILL, Missouri JOHN ENSIGN, Nevada
JON TESTER, Montana LINDSEY GRAHAM, South Carolina
ROLAND W. BURRIS, Illinois
EDWARD E. KAUFMAN, Delaware
Michael L. Alexander, Staff Director
Kevin J. Landy, Chief Counsel
Troy H. Cribb, Counsel
Brandon L. Milhorn, Minority Staff Director and Chief Counsel
Lisa M. Nieman, Minority Counsel
Trina Driessnack Tyrer, Chief Clerk
Calendar No. 335
111th Congress
SENATE
Report
2d Session 111-167
======================================================================
FEDERAL AGENCY ENERGY EFFICIENCY IMPROVEMENT ACT OF 2009
_______
April 12, 2010.--Ordered to be printed
_______
Mr. Lieberman, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 1830]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 1830) to establish
the Chief Conservation Officers Council to improve the energy
efficiency of Federal agencies, and for other purposes, having
considered the same, reports favorably thereon with an
amendment and recommends that the bill do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................4
IV. Section by Section Analysis......................................5
V. Regulatory Impact and Evaluation.................................7
VI. Congressional Budget Office Cost Estimate........................7
VII. Changes in Existing Law Made by the Bill, as Reported............8
I. Purpose and Summary
S. 1830, the Federal Agency Energy Efficiency Improvement
Act of 2009, seeks to make the federal government more energy
efficient in its operations and to ensure accountability within
executive branch agencies for meeting energy efficiency goals.
The bill would require the head of each major federal agency to
designate a Chief Conservation Officer and charge that officer
with helping ensure agency compliance with government energy
policies, as well a number of other tasks aimed at making the
agency more energy efficient. The Chief Conservation Officer
would serve in the Senior Executive Service and would
participate in the Chief Conservation Officers Council, a new
interagency body created by the legislation. The legislation
also includes two provisions that change government procurement
policies in order to encourage the purchase of energy-efficient
technologies.
II. Background and Need for the Legislation
As the largest consumer of energy in the world, the U.S.
government has both the incentive and the opportunity to
implement broad energy efficiency policies and make great use
of energy-saving technologies. According to the U.S. Department
of Energy's Federal Energy Management Program (FEMP), the
federal government consumed about 1.5 percent of the nation's
total energy in Fiscal Year 2008, at a cost of approximately
$24.5 billion.\1\ Nearly one-third of that cost went just for
the energy needed to operate Federal buildings.\2\ Reducing the
Federal government's energy usage thus would not only prove
environmentally sound, but also would yield great cost savings.
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\1\Information on federal energy usage may be found on the FEMP web
site at http://www1.eere.energy.gov/femp/. See also Cutting the Federal
Government's Energy Bill: An Examination of the Sustainable Federal
Government Executive Order Before the Subcommittee on Federal Financial
Management, Government Information, Federal Services and International
Security of the Senate Committee on Homeland Security and Governmental
Affairs, 111th Cong. (2010) (statement of Richard Kidd, Program
Manager, Federal Energy Management Program, Office of Energy Efficiency
and Renewable Energy, U.S. Department of Energy).
\2\Id.
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Over the last few decades, more than a dozen laws,
regulations, and Executive Orders have sought to encourage
energy efficiency and reduce the environmental impact of
government operations. Unfortunately, agencies have been
inconsistent in meeting their environmental goals. The lack of
a unified effort and clear accountability has undermined the
good intentions of these policies.
Several Executive Orders, including one President Obama
recently issued in October 2009, set energy reduction targets
for agencies. In 2007, President Bush issued Executive Order
13423, requiring agencies to reduce their energy use.\3\
Specifically, the Executive Order required agencies to lower
their energy consumption by 3 percent each year, with the goal
of a 30 percent reduction from 2003 levels by the end of fiscal
year 2015. Congress enacted this requirement into law in the
Energy Independence and Security Act of 2007 (EISA).\4\
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\3\Exec. Order No. 13423, 72 FR 3919 (2007).
\4\Pub. L. 110-140, Sec. 431.
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FEMP reported inconsistent progress by 2008, however. In
fiscal year 2007, for example, the Environmental Protection
Agency and the Department of the Interior were on-target to
meet their reduction goals, but other agencies, including the
Department of Transportation and the General Services
Administration, were not.\5\ ``Energy Management Scorecards''
compiled annually by the Office of Management and Budget (OMB)
reached similar conclusions, showing great variance across the
Federal government, both in terms of compliance with energy
efficiency laws and regulations and initiatives individual
agencies have developed to reduce energy usage.\6\
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\5\U.S. Department of Energy. 2008 Federal Energy Management
Program (FEMP) Market Report. Washington: GPO, 2009.
\6\U.S. Office of Management and Budget. July 2009 OMB Scorecard
for Energy, Transportation and Environment. Washington: OMB, 2009.
http://www.fedcenter.gov/Documents/
index.cfm?id=13191&pge_prg_id=27544&pge_id=3286 (accessed on February
25, 2010)
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On October 5, 2009, President Obama issued Executive Order
13514, which seeks to establish a more integrated strategy for
energy efficiency.\7\ The Executive Order directs each agency
head to designate an ``Agency Senior Sustainability Officer''
from among the agency's senior management officials. This
provision builds on the 2007 Executive Order 13423, which
required agencies to designate senior officers responsible for
environmental, energy, and transportation management; the
functions of these officers will now be performed by Agency
Senior Sustainability Officers.\8\
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\7\Exec. Order No. 13514, 74 FR 52117 (2009).
\8\Exec. Order No. 13423, 72 FR 3919 (2007).
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The Committee believes that these positions could be
strengthened and that establishing the duties of agency
conservation officers in statute will foster long-term
leadership on energy efficiency issues and create greater
accountability for meeting energy reduction targets. S. 1830
therefore would require the head of each major federal agency
to designate a Chief Conservation Officer, who would be a
member of the career Senior Executive Service. The bill would
require that energy efficiency and sustainability policies
would be the primary responsibility of these officers.
Dedicating a senior-level career official to energy efficiency
policy at each agency would improve the government's focus on
implementation of existing laws and policies, enhance
innovation, and help identify future initiatives. The Chief
Conservation Officer would also be responsible for
incorporating environmental considerations into agency
procurement practices. This involvement would encourage
efficiency improvements in agencies' procurement of goods and
services.
S. 1830, like Executive Order 13514, also creates an
interagency council of senior environmental officials, which
will include each Chief Conservation Officer. The legislation
goes further than the Executive Order in spelling out the
duties of the council, which will be called the Chief
Conservation Officers Council. These duties will include
assisting agencies in developing energy baselines and goals,
providing guidance and recommendations to agencies, and
preparing annual reports.
By requiring the head of each major federal agency to
designate a Chief Conservation Officer, and by giving statutory
backing to the interagency council, S. 1830 provides a
mechanism to ensure accountability in meeting agency energy
reduction targets and to spur long-term leadership on the
issue.
The legislation also includes two provisions that change
government procurement policies in order to encourage the
purchase of energy-efficient technologies. Specifically, the
bill would allow state and local governments to purchase
``green'' commodities and services from the Schedules program
of the General Services Administration (GSA), including
building materials, office supplies, facilities maintenance and
management services, and environmental services.\9\ This
procurement authority would help state and local governments
reduce the administrative costs of negotiating their own
contracts and will encourage greater use of green products.
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\9\Under the GSA Federal Supply Schedules (FSS) program, also known
as the GSA Schedules or Multiple Award Schedules program, federal
agencies are able to purchase goods and services under contracts that
are pre-negotiated by GSA. These contracts cover more than 11 million
commercial goods and services and are listed in broad categories known
as schedules. GSA pre-negotiates the terms and conditions of the
contract, including discounted prices.
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The bill would also expand the definition of renewable
energy in Federal purchase requirements to include renewable
energies other than electric energies. Federal purchase
requirements are those Federal laws and regulations that govern
the purchase and use of energy-using products.\10\ While
Federal agencies are required to procure energy-efficient
products, the current definition of that term includes only
electric-based energy products, precluding agencies from taking
advantage of other green energies like geo-thermal energy.
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\10\Federal purchase requirements that govern the procurement of
energy-efficient products include the Federal Procurement of Energy
Efficiency Products, Final Rule, 74 Fed. Reg. 10830 (March 13, 2009)
(to be codified at 10 CFR pt. 436). Print.; Energy Independence and
Security Act of 2007, Pub. L. no. 110-140, 121 Stat. 1492 (2007).
Print.; Energy Policy Act of 2005, Pub. L. no. 109-58, 119 Stat. 594
(2005). Print.; Exec. Order No. 13423, 72 FR 3919 (2007).; Exec. Order
No. 13221, 66 FR 40571 (2001); and Energy Policy Act of 1992, Pub. L.
no. 102-486, 106 Stat. 2776 (1992). Print.
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The Committee has received letters of support for the
legislation from the Professional Services Council, Coalition
for Government Procurement, Environment Northeast (ENE), and
the Environmental Defense Fund.
III. Legislative History
On October 21, 2009, Senators Collins, Lieberman and Carper
introduced S. 1830, which was referred to the Senate Committee
on Homeland Security and Governmental Affairs. The Committee
considered the bill on December 16, 2009. The Committee adopted
by voice vote a substitute amendment offered by Senator
Collins, and then ordered the bill favorably reported, also by
voice vote. Members present for the vote on the bill were
Senators Lieberman, Akaka, Carper, Pryor, McCaskill, Tester,
Burris, Kirk, Collins, and Bennett.
The substitute amendment makes three primary changes to the
original bill. First, the amendment adds a provision to the
bill requiring the Chief Conservation Officer to consider the
short- and long-term cost-effectiveness of each initiative
before taking actions to increase energy efficiency. Second,
the amendment clarifies information to be contained in annual
reports the Chief Conservation Officers Council would submit to
Congress and the Office of Management and Budget. Specifically,
it directs the reports to include information about agency-by-
agency energy usage and reductions, agency and government-wide
trends in energy usage, agency and government-wide cost
savings, and best practices and recommendations. Finally, the
amendment deletes a provision of the original bill, which would
have allowed agencies to enter into power purchase agreements
for electricity produced by renewable energy sources under a
pilot program.\11\ According to the Congressional Budget
Office, this pilot program would have had significant budget
implications.
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\11\Under a power purchase agreement, a developer installs, owns,
operates, and maintains a renewable energy system on agency property
while the agency agrees to purchase the power generated by the system.
The agency simply purchases the power generated by the system at a set
price over the length of the contract. This price is typically less
than what would have been paid to the utility without a power purchase
agreement. See also Cutting the Federal Government's Energy Bill: An
Examination of the Sustainable Federal Government Executive Order
Before the Subcomm. on Federal Financial Management, Government
Information, Federal Services and International Security of the Senate
Comm. on Homeland Security and Governmental Affairs, 111th Cong. (2010)
(statement of Richard Kidd, Program Manager, Federal Energy Management
Program, Office of Energy Efficiency and Renewable Energy, U.S.
Department of Energy).
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IV. Section-by-Section Summary of the Bill
Section 1. Short title
The short title of the bill is the ``Federal Agency Energy
Efficiency Improvement Act of 2009.''
Section 2. Definitions
Section 2 defines the terms Chief Conservation Officer,
Council, and federal agency. The term ``federal agency'' means
an agency of the federal government, as defined by the Chief
Financial Officers Act.\12\
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\12\31 U.S. Code, Sec. 901(b) (2003).
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Section 3. Chief Conservation Officers
This section requires each agency head to designate a Chief
Conservation Officer and outlines the roles and
responsibilities of the position. The designated individual
must serve in the Senior Executive Service. While the duties
outlined in the legislation must be the individual's primary
role, the individual may serve in other capacities in the
federal government and may serve as the Senior Sustainability
Officer created in Executive Order 13514.
The general responsibilities of the Chief Conservation
Officer are to ensure the agency complies with each federal
energy efficiency policy and to provide advice and other
assistance to the agency head, as well as other applicable
senior executive management personnel within the agency, to
enhance the conservation efforts at the agency. The Chief
Conservation Officer would be responsible for ensuring
compliance by assessing agency performance, promoting best
practices, providing advice and recommendations to senior
agency officials, and exercising the other specific
responsibilities described in this section. The bill does not
give the Chief ConservationOfficer statutory authority to
overrule decisions of more senior agency officials. The bill also does
not statutorily mandate energy efficiency policies promulgated by the
Executive Branch or which otherwise have not been enacted into law.
Additionally, the Chief Conservation Officer is responsible
for collecting data about the energy consumption of buildings
and major equipment owned or operated by the agency, and
providing that information to the Chief Conservation Officers
Council. The Chief Conservation Officer is responsible for
developing and implementing policies that minimize the agency's
energy consumption and taking any additional actions to
increase energy efficiency and maintain or increase the
agency's energy security and cost savings. The Chief
Conservation Officer is required to coordinate with the
agency's Chief Information Officer in developing, facilitating,
and maintaining the implementation of a sound energy efficiency
information technology architecture, and in ensuring energy
consumption is considered in the design and operation of all
major information resources management processes of the agency.
Before implementing any of these initiatives or policies, the
Chief Conservation is also to consider the cost-effectiveness
of doing so.
The Chief Conservation Officer shall be responsible for the
management of the energy efficiency of his or her agency. In
this capacity, the Chief Conservation Officer shall monitor and
evaluate the effectiveness of each energy efficiency program of
the agency and advise the head of the agency on whether to
continue, modify or terminate such programs. In addition, the
Chief Conservation Officer, in conjunction with the Chief
Information Officer, shall prepare an energy usage report that
will be included in the agency's budget submissions to
Congress.
Section 4. Chief Conservation Officers Council
This section establishes a Chief Conservation Officers
Council, which is to serve as the principal interagency forum
for improving agencies' practices relating to the design,
acquisition, development, modernization, use, operation,
sharing, and performance of federal energy efficiency efforts.
The Deputy Director for Management of the Office of Management
and Budget will serve as chairperson of the Council and the
Program Manager will serve as Vice Chairperson. Other members
of the Council will be the Chief Conservation Officers, the
Secretary of Energy, the Administrator of the Environmental
Protection Agency, the Chief Information Officer of each
agency, the Federal Environmental Executive, and any other
officer or employee of the federal government as designated by
the Chairperson or Vice Chairperson. The Council is to oversee
the collection and reporting of any necessary energy usage data
by Chief Conservation Officers and assist in developing agency
energy baselines and goals. Additionally, the Council is to
provide guidance and develop recommendations for agency Chief
Conservation Officers to help meet their agencies' energy
efficiency goals.
This section also requires the Council to submit to
Congress and the Office of Management and Budget an annual
report that includes information about agency-by-agency energy
usage and reductions, agency and government-wide trends in
energy usage, agency and government-wide cost savings, and best
practices and recommendations.
This section also requires the Director of the Office of
Management and Budget to include in the annual report and
scorecard, as required by EISA,\13\ a description of agencies'
efforts under this legislation. This means that the annual
report and scorecard must include information about agencies'
equipment and building energy usage. Information about energy
usage should include energy usage baselines, actual usage, and
usage goals.
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\13\Pub. L. 110-140 Sec. 431
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Section 5. Authorization for acquisitions
This section allows state and local governments to purchase
goods and services using contracts under certain GSA Schedules.
The Schedules identified in the legislation contain
environmentally preferable ``green'' products and services.
While the legislation does not specifically require that the
GSA provide training to state and local governments on use of
these Schedules, the Committee presumes that GSA will provide
access to training, as appropriate. The legislation expressly
states that non-federal users of these Schedules--meaning state
and local governments--must comply with the ordering guidance
GSA provides. This is necessary to ensure non-federal users
conduct proper order-level competition to obtain the best value
from GSA Schedule contractors.
Section 6. Clarification of renewable energy
This section amends the definition of ``renewable energy''
under the Energy Policy Act of 2005 to extend federal purchase
requirements beyond electricity. Under the current definition,
agencies cannot take advantage of certain ``green''
technologies like geo-thermal energy because they are not
considered electric. This provision expands the definition to
include other non-electric technologies, such as geo-thermal
energy.
V. Regulatory Impact and Evaluation
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill. The
Congressional Budget Office states that the bill contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandate Reform Act and would not affect the budgets of
state, local, or tribal governments. The enactment of this
legislation will not have significant regulatory impact.
VI. Congressional Budget Office Cost Estimate
February 2, 2010.
Hon. Joseph I. Lieberman,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1830, the Federal
Agency Energy Efficiency Improvement Act of 2009.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
S. 1830--Federal Agency Energy Efficiency Improvement Act of 2009
S. 1830 would require each federal agency to appoint a
Chief Conservation Officer to implement energy-efficiency
policies. The legislation also would establish the Chief
Conservation Officers Council as an interagency forum to
provide guidance and recommendations to agencies on energy
efficiency. Finally, S. 1830 would allow state and local
governments to purchase certain energy-efficient products and
services through the federal supply schedules.
Most of the provisions of S. 1830 would codify and expand
the current energy-efficiency practices at federal agencies.
Executive Order 13514, which expands upon Executive Order
13423, requires each federal agency to designate a Senior
Sustainability Officer from among senior management officials
to promote, monitor, and report on energy efficiency; it also
established an interagency steering committee to promote energy
efficiency.
Any purchases of energy-efficient supplies and services
would be an exchange between state, local, and tribal
governments and commercial suppliers. The General Services
Administration (GSA) charges a 0.75 percent fee on all sales to
recover its procurement and administrative costs. Based on
information from GSA regarding the anticipated demand from
state and local governments, CBO estimates that implementing
the bill would increase offsetting collections by a few million
dollars a year. Because GSA is authorized to spend such
collections without further appropriation, the net budgetary
impact of this provision would be negligible.
Based on information from GSA, the Department of Energy,
and the Office of Management and Budget, CBO expects that
implementing other provisions of S. 1830 would not
significantly add to governmentwide costs.
S. 1830 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act. The
bill would benefit state, local, and tribal governments.
The CBO staff contact for this estimate is Matthew
Pickford. The estimate was approved by Theresa Gullo, Deputy
Assistant Director for Budget Analysis.
VII. Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the following changes in existing
law made by the bill, as reported, are shown as follows
(existing law proposed to be omitted is enclosed in black
brackets, new matter is printed in italic, existing law in
which no change is proposed is shown in roman).
TITLE 40--PUBLIC BUILDINGS, PROPERTY, AND WORKS
Subtitle I--Federal Property and Administrative Services
CHAPTER 5--PROPERTY MANAGEMENT
Subchapter I--Procurement and Warehousing
SEC. 502. SERVICES FOR OTHER ENTITIES.
* * * * * * *
(c) Use of Certain Supply Schedules.--
(1) In general.--The Administrator may provide for
the use by State or local governments of Federal supply
schedules of the General Services Administration for
the following:
(A) Automated data processing equipment
(including firmware), software, supplies,
support equipment, and services (as contained
in Federal supply classification code group
70).
(B) Alarm and signal systems, facility
management systems, firefighting and rescue
equipment, law enforcement and security
equipment, marine craft and related equipment,
special purpose clothing, and related services
(as contained in Federal supply classification
code group 84 or any amended or subsequent
version of that Federal supply classification
group).
(C) Environmentally preferable `green'
products and services (as contained in Federal
supply classification code groups 03FAC, 51V,
56, 72IA, 73, and 899), including any amended
or subsequent version of the Federal supply
classification code groups).
(2) Voluntary use.--In any case of the use by a State
or local government of a Federal supply schedule
pursuant to paragraph (1), participation by a firm that
sells to the Federal Government through the supply
schedule shall be voluntary with respect to a sale to
the State or local government through such supply
schedule.
(3) Duty of non-federal users regarding use of
federal supply schedules.--During the Use of a Federal
supply schedule, an authorized non-Federal user shall
act in accordance with the ordering guidance provided
by the Administrator of General Services.
* * * * * * *
Energy Policy Act of 2005 (Public Law 109-58; 119 Stat. 594)
* * * * * * *
SEC. 203. FEDERAL PURCHASE REQUIREMENT.
* * * * * * *
(a) Requirement.--The President, acting through the
Secretary, shall seek to ensure that, to the extent
economically feasible and technically practicable, of the total
amount of [electric] energy the Federal Government consumes
during any fiscal year, the following amounts shall be
renewable energy:
(1) Not less than 3 percent in fiscal years 2007
through 2009.
(2) Not less than 5 percent in fiscal years 2010
through 2012.
(3) Not less than 7.5 percent in fiscal year 2013 and
each fiscal year thereafter.
(b) Definitions.--In this section:
(1) Biomass.--The term ``biomass'' means any lignin
waste material that is segregated from other waste
materials and is determined to be nonhazardous by the
Administrator of the Environmental Protection Agency
and any solid, nonhazardous, cellulosic material that
is derived from--
(A) any of the following forest-related
resources: mill residues, precommercial
thinnings, slash, and brush, or nonmerchantable
material;
(B) solid wood waste materials, including
waste pallets, crates, dunnage, manufacturing
and construction wood wastes (other than
pressure-treated, chemically-treated, or
painted wood wastes), and landscape or right-
of-way tree trimmings, but not including
municipal solid waste (garbage), gas derived
from the biodegradation of solid waste, or
paper that is commonly recycled;
(C) agriculture wastes, including orchard
tree crops, vineyard, grain, legumes, sugar,
and other crop by-products or residues, and
livestock waste nutrients; or
(D) a plant that is grown exclusively as a
fuel [for the production of electricity].
(2) Renewable energy.--The term ``renewable energy''
means [electric] energy generated from solar, wind,
biomass, landfill gas, ocean (including tidal, wave,
current, and thermal), geothermal, municipal solid
waste, or new hydroelectric generation capacity
achieved from increased efficiency or additions of new
capacity at an existing hydroelectric project.
* * * * * * *