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US government receives a prod to fulfil pledge to begin procuring carbon-free, renewable power

07 December 2021 Amena Saiyid

The US agency charged with procuring goods and services for the federal government received a prod from the nonprofit Center for Biological Diversity (CBD) as the final month of 2021 began to fulfil an Earth Day commitment to have 100% renewable electricity sourcing in place by 2025.

The US General Services Administration (GSA), which manages 186 million square feet of federal real estate and is the largest consumer of energy in the country, made the commitment, albeit a non-binding one, on 22 April, but has yet to take any concrete steps in that direction, CBD Senior Counsel Bill Snape told Net-Zero Business Daily 6 December.

The GSA's commitment came in response to President Joe Biden's goal, also announced on Earth Day, to halve the nation's GHGs by 2030 and to decarbonize the US power sector by 2035.

The nonprofit environmental group petitioned the GSA on 3 December to issue a rule that commits the federal real estate portfolio to 100% renewable, GHG pollution-free electricity sources by 2025 and to transition the entire federal vehicle fleet to electric zero-emission vehicles by 2035. The center also urged the agency to use its existing authority to make progress on the non-binding goal.

The center submitted its petition to the GSA as the Federal Acquisition Research Council (FARC), which regulates US government procurement practices, is seeking public input on amending the provisions of the existing Federal Acquisition Regulation to allow the social cost of GHGs to be factored into all procurement decisions.

"Our petition is a way to prod them, to catalyze action," said Snape, who also is director of the American University Washington College of Law Program on Energy and Environment.

"Good faith" effort

The GSA is bound under the Administrative Procedure Act to respond in a "reasonable amount of time" to the center's petition that Snape said can vary depending on the complexity of the request.

In this instance, Snape said the CBD is prepared to wait at least until early to mid-2022 to see what actions GSA takes under the existing authorities to transition the federal government to using carbon-free sources for power and transportation as part of its stated goals.

However, "the 2025 goal is not a statutory deadline that GSA must meet," Alexandra Dunn, a partner with Baker Botts law firm, told Net-Zero Business Daily 7 December.

"And as such, GSA can take good faith steps towards meeting it, but it will not be in violation of law if they do not achieve the renewable power and electric vehicle goals by that date," Dunn added.

According to Dunn, GSA's response to the petition, if the agency responds at all, would be that it is in the process of issuing a rule, that the federal government does have an advanced notice of proposed rulemaking (ANPR) out to that end, and that it us moving forward to achieve the goals of the petition.

The GSA also would cite ongoing activities under existing regulations, added Dunn, who served as the head of the US Environmental Protection Agency's Office of Chemical Safety and Pollution Prevention during the prior administration.

In April, the GSA said it is already continuing with its plan to eliminate fossil fuel use in newly constructed facilities and those undergoing major modernization, and achieving net zero by 2030.

Leading by example

The US government purchases nearly 53.8 million megawatt-hours (MWh) of electricity annually, making it the country's single largest energy consumer, according to the US Department of Energy's most recent energy use statistics.

"With more than 350,000 energy utilizing buildings and 600,000 vehicles, the US government consumes more energy than New Zealand," the center wrote in its petition.

Source: US Department of Energy

Biden made it clear in his 20 May order on climate risk that he wants the US government to set the tone for the rest of the nation and the globe.

At the UN COP26 summit on climate in November, Biden cited the federal government's $650 billion purchasing power as an example for the newly launched First Movers Coalition. A joint initiative of the World Economic Forum and the Office of US Special Presidential Envoy on Climate John Kerry, the coalition would create a platform for large Fortune 500 companies to drive demand for low-carbon technologies and to decarbonize their industrial supply chains by the decade's end.

Biden's directed FARC in the same May order to consider the social cost of carbon in all procurement activities, "and, where appropriate and feasible, give preference to bids and proposals from suppliers with a lower social cost."

Notice, not rulemaking

FARC responded by putting out an ANPR on 15 October, which is a prelude to the formal rulemaking process, that sought public input on implementing Biden's directive.

In that notice, FARC asked the public to respond by 14 December to a series of questions that apply to the US Department of Defense, GSA, and the National Aeronautics and Space Administration. But the notice is seeking information and is not actually requiring the agencies to start purchasing carbon-free electricity and vehicles, according to the CBD.

Specifically, the council asked for comment on quantitative and qualitative approaches that the federal government can take to incorporate the social cost of carbon into procurement decisions made both domestically and overseas. The council also asked for comment on the methodologies for measuring GHGs over the lifecycles of products and services used as well as how the federal government may standardize GHG reporting. It also asked for recommendations for approaches the US government might take in giving preference to "bids and proposals from suppliers, both domestic and overseas, to achieve reductions in greenhouse gas emissions or reduce the social cost of greenhouse gas emissions most effectively."

Snape said CBD is aware of the FARC notice to implement Biden's order and of Biden's desire to lead by example.

"We are grateful to the President for his leadership and we do believe he is sincere about tackling the climate crisis," Snape said. "But we want the GSA to stop talking and start doing."

The GSA did not respond to a Net-Zero Business Daily request for a comment. Snape said the GSA can use its existing authorities to purchase renewable power and doesn't have to wait for the FARC rulemaking to unfold, which could take at least another year. The center does plan to respond to the FARC notice though, he added.

"Sweeping scope"

In a 5 November blog, Vinson & Elkin attorneys said the questions posed by FARC underscore "the pervasive and sweeping scope of potential changes" that could be made to the Federal Acquisition Regulation to implement Biden's climate risk order. This includes climate disclosures, data validation, and self-certification, which they say "could ultimately raise new enforcement risks under the False Claims Act."

The attorneys—Margaret Peloso, Dan Graham, Zach Terwilliger, Conrad Bolston, Lindsay Hall, and summer associate Alex Sprenger—wrote that the existing provision of the Federal Acquisition Regulation (FAR Part 23) does allow the federal government to ensure that 95% of new contract actions require products that are: energy efficient, bio-based, non-ozone depleting, water-efficient, non-toxic or less toxic alternatives, or made with recovered materials. This same provision of the law also prescribes acquisition policies and procedures for protecting and improving the quality of the environment and fostering markets for sustainable technologies, materials, products, and services.

Snape said GSA can use existing regulations to meet its carbon-free goal for the federal government, and it should do so without delay.

The FARC notice is just seeking input, he said, adding: "There's not much time left, only three years to 2025."

Posted 07 December 2021 by Amena Saiyid, Senior Climate and Energy Research Analyst

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