In the latest of a series of actions by the Biden-Harris administration aimed at reducing the federal government's carbon footprint, the US General Services Administration (GSA) has issued new national standards for the concrete and asphalt used in GSA building and paving projects.1 The standards apply to concrete and asphalt provided by GSA's prime contractors, furthering efforts to prioritize carbon-reduction in federal contracting and to leverage the federal government's purchasing power in support of the transition to a zero-carbon economy. GSA plans to use these standards for all GSA projects involving at least 10 cubic yards of concrete or asphalt, including GSA projects carried out under the Infrastructure Investment and Jobs Act.2
GSA's standards are the first nationwide standards for these materials to apply in the United States and will affect two of the most widely used building materials. Annually, the United States produces over 500 million tons of concrete and over 420 million tons of asphalt. The standards require that contractors disclose the environmental impacts that result from the entire production lifecycle of the materials, including greenhouse gas emissions. These disclosures are to be made in environmental product declarations (EPDs) that third parties verify.
As for concrete, the standards require that it satisfy low-carbon benchmarks based on the "embodied carbon" in a set quantity of concrete, adjusted for concrete type (standard, high-early strength and lightweight). GSA will also require "environmentally preferable asphalt," which is asphalt that uses at least two of the six techniques specifically set forth by GSA. These techniques are:
- Greater than 20 percent recycled asphalt pavement (RAP) content (specifying percentage and whether in-place or central plant recycling is used)
- Warm mix technology (reduced onsite mix temperature)
- Non-pavement recycled content (e.g., roof shingles, rubber or plastic)
- Bio-based or other alternative binders
- Improved energy/carbon efficiency of manufacturing plants or equipment (e.g., using natural gas or electric for heating materials)
- Other environmentally preferable features or techniques3
Contractors may request a waiver of the concrete and asphalt standards, but the waiver process requires outlining the circumstances that justify the waiver and including a strategy, if one exists, for minimizing carbon emissions to the extent feasible.
The GSA standards were issued following an earlier announcement from the agency requesting information from industry on the availability of low-carbon or environmentally "superior" materials with EPDs. GSA reports that over 80 percent of the concrete manufacturers responding to the request reported already producing low-carbon concrete, over 60 percent reported having developed a product-specific EPD and over 55 percent responded that low-carbon concrete is cost-competitive with conventional concrete. For asphalt, over 80 percent of responding manufacturers reported using recycled pavement, over 60 percent reported using warm-mix technology and over 50 percent said the environmentally superior asphalt was cost-competitive with conventional asphalt.
GSA pointed to the positive industry response as evidence that "combating climate change is also an opportunity to boost American innovation." With responsibility for managing over 8,800 federally owned or leased properties and supporting over $75 billion in annual federal contracting, GSA is well-positioned to reward such innovation through federal procurement spending.
Footnotes
1. Mayer Brown has written extensively about the Biden administration's executive actions on climate change, including offshore wind leases discussed in Mayer Brown's March 28, 2022, Legal Update "US BOEM Announces North Carolina Offshore Wind Auction" and Mayer Brown's March 8, 2022, Legal Update "US BOEM Announces Provisional Winners of Massive Offshore Wind Auction"; President Biden's Clean Energy Executive Order discussed in Mayer Brown's March 24, 2022, Legal Update "Buy Clean: Biden's Executive Order on Catalyzing Clean Energy through Federal Procurement"; and the Securities and Exchange Commission's recently proposed ESG disclosure rules discussed in Mayer Brown's March 22, 2022, Legal Update "SEC Proposes Climate Change Disclosure Rules Applicable to Public Companies."
2. Mayer Brown discussed the administration's efforts to implement the Infrastructure Investment and Jobs Act in the January 21, 2022, Legal Update, "Jolting the Grid: US DOE Begins Implementing Bipartisan Infrastructure Bill."
3. See PRESS RELEASE, U.S. GENERAL SERV. ADMIN, GSA LIGHTENS THE ENVIRONMENTAL FOOTPRINT OF ITS BUILDING MATERIALS (MARCH 30, 2022); ENVIRONMENTALLY PREFERABLE ASPHALT STANDARDS FOR ALL GSA PROJECTS; U.S. GENERAL SERV. ADMIN. (MARCH 29, 2022).
Visit us at mayerbrown.com
Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe - Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.
© Copyright 2020. The Mayer Brown Practices. All rights reserved.
This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.