As part of his administration's all-of-government response to climate concerns, on December 8, 2021 President Biden issued Executive Order (E.O.) 14057, Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability. The E.O. lays out broad, across-the-board objectives to lower the federal government's greenhouse gas emissions, including a suggestion for new federal guidelines "to promote sustainable locations for Federal facilities." Id. at § 510(b)(iii).
The General Services Administration (GSA) has signaled its intent to propose such guidance by March 2023, with public comments on the proposal tentatively due by May 2023. GSA's stated purpose for the yet-to-be-unveiled policymaking is "to promote economy and efficiency in the planning, acquisition, utilization, and management of Federal facilities." FMR Case 2023-102-1. More specifically, the proposed rules are intended to "help reduce emissions across Federal workplaces by ensuring that all new construction, modernization projects, and leases implement a number of energy efficient, sustainable, and climate-resilient building practices for federal facilities." Id.
One key question that remains to be answered is whether-and how-GSA's proposed rules (or guidance) will impact federal real estate acquisition and construction projects, including those already under way. Of course, the impact will depend on the contents of the proposal, as well as the impacted industries. However, considering the sheer size of the federal government as a real estate and construction customer, it is safe to assume any proposed guidelines will have measurable downstream effects on the industry and its firms. Given the breadth of other recently publicized climate-related regulations, one can predict that the sustainable siting policies will have similarly broad scope to maximize their applicability to as many federal property transactions as possible. Consider, for example, GSA's recently proposed rules to require, among other things, that certain federal contractors disclose greenhouse gas emissions and gain third-party validation for science-based emissions reduction targets. According to the agency's own estimates, those rules would affect 86 percent of the federal government's annual spend.
Fortunately, whatever proposal GSA ultimately issues, it will be subject to a period of public comment during which anyone-from interested individuals to key players in the construction industry-can express support, convey concerns, or propose tweaks and clarifications. This is a valuable opportunity to help shape the playing field of future opportunities for contractors who work on federal construction projects, participate in federal property renovations, and lease facilities to the federal government. As with any rulemaking, it is important for policymakers to understand the feasibility and real-world impact of their proposals via public comments.
Accordingly, whether large or small, contractors should keep GSA's upcoming rulemaking on the radar and may even consider taking part in the public notice and comment process. If you have questions about how this upcoming rulemaking may impact your business and its competitiveness for federal projects, or if you wish to explore filing comments on the proposal, please reach out to these Venable authors-who reflect the firm's deep bench of expertise on federal procurement, environmental, and construction law, as well as the rulemaking process.
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