SENATE BILL 442
50th legislature - STATE OF NEW MEXICO - first session, 2011
INTRODUCED BY
Carlos R. Cisneros
AN ACT
RELATING TO ENERGY CONSERVATION; ENACTING THE BUILDING ENERGY DISCLOSURE ACT; REQUIRING THE DISCLOSURE OF THE ENERGY EFFICIENCY OF STATE-OWNED BUILDINGS; REQUIRING OWNERS OF NONRESIDENTIAL BUILDINGS TO MEASURE AND TO DISCLOSE ENERGY PERFORMANCE IN ADVERTISING MATERIALS TO TENANTS AND PROSPECTIVE TENANTS, BUYERS AND LENDERS; REQUIRING UTILITIES TO RELEASE CONSUMPTION DATA TO BUILDING OWNERS; REQUIRING RULEMAKING BY THE ENERGY, MINERALS AND NATURAL RESOURCES DEPARTMENT; ESTABLISHING A VIOLATION; PROVIDING A RIGHT OF ACTION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. SHORT TITLE.--This act may be cited as the "Building Energy Disclosure Act".
SECTION 2. PURPOSE.--The purpose of the Building Energy Disclosure Act is to provide information to the state, building owners and the public that reflects the energy efficiency of buildings owned and used by those entities, thus promoting energy consumption awareness.
SECTION 3. DEFINITIONS.--As used in the Building Energy Disclosure Act:
A. "aggregate energy consumption" means the total amount of energy used by a building each calendar month as determined by all energy consumption measuring devices serving the building;
B. "benchmark" means to input and submit the total consumption of energy by a building for the most recent continuously occupied twelve-month period and other descriptive information for the building as required by the energy star portfolio manager tool of the United States environmental protection agency or an equivalent tool adopted by the department;
C. "benchmarking information" means information related to the energy used by a building as defined by the energy star portfolio manager tool of the United States environmental protection agency or an equivalent tool adopted by the department;
D. "benchmarking rating" means a rating that compares the energy use of the building to that of similar buildings or, if a rating is unavailable, the weather- normalized energy use intensity of the building as generated by the energy star portfolio manager tool of the United States environmental protection agency or an equivalent tool adopted by the department;
E. "building owner" means an individual or entity possessing a fee interest in a covered building;
F. "covered building" means a nonresidential building that is five thousand gross square feet or more;
G. "department" means the energy, minerals and natural resources department;
H. "energy star portfolio manager" means the tool developed and maintained by the United States environmental protection agency to track and assess the relative energy performance of similar buildings nationwide;
I. "state agency" means the state of New Mexico or any of its branches, agencies, departments, boards, instrumentalities or institutions, but does not include municipalities, counties or school districts;
J. "state building" means a building that is more than five thousand gross square feet and that is owned by a state agency or for which a state agency regularly pays all or part of the annual energy bills; provided that two or more buildings on the same tax lot shall be deemed to be one building;
K. "tenant" means a person or entity occupying or holding possession of a building or premises pursuant to a rental agreement; and
L. "utility" means an investor-owned entity that distributes and sells natural gas, electric or thermal energy services for buildings.
SECTION 4. BENCHMARKING REQUIRED FOR STATE BUILDINGS--DISCLOSURE.--No later than January 1, 2012, and no later than every January 1 thereafter, a state building shall be benchmarked by the state agency primarily responsible for the management of the building in coordination with the department. The state agency shall make benchmarking information available to the public on the state agency's internet site or on a public access internet site available to the state agency no later than January 1, 2013 and no later than every February 1 thereafter. The state agency shall maintain the information it determines is necessary for the purpose of carrying out the provisions of the Building Energy Disclosure Act.
SECTION 5. BENCHMARKING REQUIRED FOR COVERED BUILDINGS--DISCLOSURE.--
A. On and after the date designated by the schedule in Subsection C of this section, the owner or operator of a covered building shall provide, in a form established by department rule, benchmarking information for the most recent continuously occupied twelve-month period to:
(1) prospective tenants negotiating a lease agreement;
(2) potential buyers negotiating a purchase and sale agreement;
(3) potential lenders considering an application for financing or refinancing of the building; and
(4) current tenants upon request by the tenants.
B. On and after the date designated by the schedule in Subsection C of this section, the benchmarking rating for the most recent continuously occupied twelve-month period shall be stated in advertisements when a covered building is offered for sale or for lease.
C. The schedule for providing benchmarking information and benchmarking ratings required by this section shall be as follows:
(1) for a building that is two hundred thousand gross square feet or more, July 1, 2012;
(2) for a building that is seventy-five thousand gross square feet or more, July 1, 2013; and
(3) for a building that is five thousand gross square feet or more, July 1, 2014.
D. Benchmarking information and benchmarking ratings shall be valid for a period not to exceed one year.
E. A disclosure made pursuant to this section shall be adequate to inform a prospective buyer, lessee or lender regarding benchmarking information, and additional energy consumption information shall not be required.
F. Nothing in this section alters a duty of a lessor, seller, agent or broker to disclose the existence of a material fact affecting real property.
SECTION 6. MAINTAINING UTILITY RECORDS.--
A. On and after January 1, 2012, upon the written authorization or secure electronic authorization of a state building or covered building owner or operator, a utility shall provide the aggregate energy consumption for the building to the building owner or operator in a form that does not disclose personal identifying information of metered customers.
B. In carrying out the requirements of this section, a utility may use any method for providing the specified data in order to maximize efficiency and minimize overall program cost.
SECTION 7. TENANT REQUIRED TO PROVIDE INFORMATION.--
A. A tenant in a covered building shall provide, within thirty days of a request by the building owner or operator, information that cannot otherwise be acquired by the building owner or operator and that is needed by the building owner or operator to comply with the Building Energy Disclosure Act. The information shall be reported in a form and manner that does not disclose personal identifying information as established by department rule.
B. When a covered building owner or operator receives notice that a tenant intends to vacate the building before providing information pursuant to this section, the owner or operator shall request information relating to the tenant's energy use for any period of occupancy relevant to the owner or operator's obligation to benchmark. The tenant shall report the information to the owner or operator prior to vacating the building or, if such information is not available prior to vacating, as soon as practicable thereafter. The information shall be reported in a form and manner established by department rule.
SECTION 8. RULES.--The department shall promulgate rules necessary to carry out the provisions of the Building Energy Disclosure Act within one hundred twenty days of its effective date.
SECTION 9. VIOLATION--RIGHT OF ACTION.--It is a violation of the Building Energy Disclosure Act for a person to fail to comply with its requirements or to misrepresent any material fact required to be disclosed by it. The department or person to whom the obligation to comply is owed or to whom a misrepresentation has been made may bring a civil action in the district court to enforce the obligation or to mandate a correction of the misrepresentation. If successful, the department or person bringing the action is entitled to reasonable attorney fees and costs attributable to the action.
SECTION 10. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2011.
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