As demand increases for high-performance buildings, new methods and standards for regulation are required.

Society demands a lot of buildings, and buildings require a lot to meet those demands. Society expects buildings to provide a safe, secure, healthy and productive environment. To provide those services and peace of mind, buildings use approximately 40 percent of the nation’s primary energy, 70 percent of the electricity generated in the U.S. and around 10 percent of the nation’s water.1

The increasing desire for safer, more secure, healthier buildings in the face of growing energy, environmental and economic challenges heightens demand for high-performance buildings.

As recognized by Congress, a “high-performance building means a building that integrates and optimizes on a life cycle basis all major high performance attributes, including energy conservation, environment, safety, security, durability, accessibility, cost-benefit, productivity, sustainability, functionality, and operational considerations.” 2 To individually and collectively consider, integrate and optimize these diverse attributes requires significant changes across the building industry. 3 As a consequence, the building industry is evolving. Information technology has played a role in streamlining historical processes.

Concepts such as integrated design, building information modeling (BIM), building energy modeling and alternative methods of building construction project delivery (e.g., design-build, construction manager / general contractor, performance contracting) are some of the innovations that have emerged to actually change those processes. Public demand for accountability and transparency also has grown.

However, the processes for communities and governments to make sure buildings achieve the desired characteristics, whether high-performance or not, have remained largely unchanged with the notable exception of streamlining those processes through use of information technology.

Adoption and Enforcement of Building Regulations

Building construction regulations (e.g., codes and standards governing the design, construction and even operation of buildings) have long served as the main tool of governments in setting agreed-upon norms in a jurisdiction. Compliance with those norms is generally secured through their enforcement by governments or their designated agents in the design and construction of buildings. The concept of building codes goes as far back as Hammurabi (circa 1772 B.C.) who established a performance-based code4with strict penalties for noncompliance. 5 Codes were developed and adopted in Europe as it was settled and evolved over many decades. Those codes were imported to the new world and formed the basis for city codes as the U.S. was formed and grew. Significant fires in Chicago and Baltimore and a San Francisco earthquake in the late 19th and early 20th centuries spurred further development of codes for the design and construction of buildings, efforts fostered by the insurance industry. The primary focus at that time was to avoid loss of property and loss of life. Codes have increased in stringency since then, have had to address myriad new technologies and design concepts and have expanded beyond health and safety requirements to include other societal values such as accessibility, energy efficiency, indoor air quality and sustainability.

Codes typically contain two types of requirements: prescriptive and performance. Prescriptive requirements provide minimum standards for building materials, products, systems, etc. In a way, they stipulate specifically what to provide and often represent a checklist of items and the minimum acceptable specifications for those items. In contrast, performance-based requirements set a desired end state and do not provide minimum characteristics, per se — they set the desired result without specifying how to achieve that result. In most instances, a measure of achieving the desired result is based on the anticipated results associated with following the prescriptive requirements. Both of these types of requirements are generally applied when designing and constructing buildings with the premise that, if followed, the building will perform at an acceptable level. A third type of requirement is gaining traction: outcome-based requirements, where the performance outcome is established, it is not aligned with any particular prescriptive provisions and compliance is verified after rather than before occupancy. Discussion on this approach and its relationship to compliance verification methods appears later in this article.

Today, several private-sector organizations develop model codes and standards that are used as a basis for building construction regulations. These documents provide the necessary criteria to make sure buildings are designed and constructed to be considered safe, secure, healthy, energy efficient, accessible, etc. They are then available for adoption by Federal, state and local government as laws or regulations, or by anyone through contracting or other mechanisms that can secure their application and use. While the development process is slightly different within each organization, the process is intended to comply with several key criteria:

  • The development process includes a balance of all relevant stakeholders including government, citizens, public interests and building industry representatives — without undue influence from any one particular stakeholder;
  • A rigorous process is followed to make sure that recommendations for revision to existing or criteria for new model codes and standards receive proper consideration and resolution; and
  • The process is transparent, to facilitate trust and diverse engagement.

Like the development process within the private sector, the adoption process by governments also varies significantly. Some jurisdictions require legislative action to adopt or update a code, while others automatically update to a new edition of a model code or standard upon its publication. In some instances, consideration by a state or locally appointed committee or council may be required.

Within these processes, a jurisdiction may elect to develop its own code to address state and/or local needs, adopt a model code unamended or adopt a model code that contains amendments the jurisdiction develops (which is the predominant method of adoption). Once adopted, the adopting entity typically sets the effective date of the new code to allow time for implementation and educational considerations. Once the process is complete, the building industry must satisfy the code’s provisions in the design and construction and sometimes actual operation of a building. Those provisions are generally based on nationally developed model codes and standards, are generally adopted at the state or local level (with the exception of buildings owned by or leased to federal agencies) and compliance is enforced.

The responsibility to administer building codes typically falls upon states or local jurisdictions. The responsibility to comply with the adopted codes and standards falls on the building owner or his designated agent. Compliance in the design stage generally falls on designers and specifiers and compliance with respect to actual construction will also involve builders and contractors. Enforcement strategies vary according to a state or local government’s regulatory authority, resources and staffing. Programs to verify compliance through code enforcement may include all or some of the following activities:

  • Review of plans.
  • Review of products, materials and equipment specifications.
  • Review of tests, certification reports and product listings.
  • Review of supporting calculations.
  • Inspection of the building and its systems during construction (either by a public employee or a recognized third party).
  • Evaluation of materials substituted in the field.
  • Inspection immediately prior to occupancy.
  • Issuance of permit, certificate of occupancy and/or other administrative documents. 
  • Processing of variance/appeal requests to the applicable code.

For most requirements contained in codes, a building department’s ability to re-inspect and verify compliance ends once a building is issued a certificate of occupancy (exceptions can include elevators, boilers, fire suppression systems, egress, kitchen sanitation and plumbing system functionality), as illustrated in Figure 1. In addition to applying to new construction, the adopted codes generally apply to additions, renovations, repairs and alterations to existing structures. Depending on the code and the nature of the work being performed, the existing building will also have to be addressed and code compliance verified.

With respect to energy efficiency, Figure 1 can be summarized as follows:

  • National model codes and standards are developed and updated and provide prescriptive criteria to govern the design, construction and pre-occupancy commissioning of buildings. They also provide a compliance path based on documenting equivalent or better energy performance compared to expected performance if the building just satisfied the prescriptive criteria.
  • Those model codes and standards are adopted by federal, state and local government to govern the design and construction of buildings.
  • Designers and specifiers or others retained by building developers/owners prepare plans and specifications for the building and document their compliance with what is adopted.
  • Where compliance verification is performed, the adopting agency or their agents conduct a review of the plans and specifications and when it is determined that they meet the adopted code, a building permit is issued. 6
  • The adopting agency or their agents conduct inspection of the building during construction to verify that it is in conformance with the approved plans and specifications. If so, subsequent phases of construction are allowed to proceed. If not, a stop-work order could be issued and remain in effect until the noncomplying construction is repaired or replaced.
  • Upon passage of a final inspection, an occupancy permit is issued by the adopting agency or the designated enforcement agency.
  • The building is occupied and the occupants, owners, facility managers, etc. have been provided a building that meets the minimum energy code — that is, it can be operated to provide certain environments and services and there is an expectation that the energy use and associated costs of operation will be consistent with what was intended by the code.

The New Paradigm and the Old Methodology

Until recently, building owners and policy makers rarely asked how a building that meets the energy code at occupancy really performs and what that means with respect to a code that does not apply after occupancy. In the end, if owners or policymakers desire a particular level of performance, why not provide that expectation up front and focus on whether the building actually performs to expectations after it is occupied?

Recently, considerable focus has been directed at green or sustainable buildings and achieving net-zero energy use. Achieving the results envisioned by green building programs and reducing building energy use relies on significantly more information and oversight than existing prescriptively based codes and standards with compliance verified prior to actual building occupancy. Unlike criteria covered by traditional health and life-safety codes, resource use and many of the criteria covered in energy and green or sustainable codes are measurable on an ongoing basis, their performance is evident daily and their ongoing level of performance is significantly affected by operations and maintenance practices. Thus, they represent ongoing costs to building owners and are subject to measurement and verification.

Despite the differences between life-safety issues and energy and water use, the development of codes and verification of compliance with codes in these areas are largely the same. Current energy codes and water and plumbing codes do not actually regulate the use of energy or water, but rather cover the design and construction of the building. Based on meeting prescriptive criteria or performance criteria for products, materials, equipment or systems in buildings there is some expectation that the building will actually perform at an “energy efficient” level. Prescriptive criteria include such items as minimum reflectivity of roofing, minimum insulation levels, or providing certain types of lighting controls.

Within the codes, individual performance criteria can be found such as that lavatory faucets can use no more than X gallons per minute or a forced air furnace must have a minimum annual fuel utilization efficiency of Y. Additionally, some design choices with significant impacts on actual building energy use have traditionally not been addressed by energy codes but are starting to be considered (e.g., minimum energy standards have recently added orientation requirements and green codes have addressed plug loads). These include all energy-using objects brought into the building upon occupancy (plug loads), orientation and architectural massing.

Given today’s economic stresses, both the public and private sectors are forced to prioritize limited resources. Because they do not directly impact health and life-safety, energy and green or sustainability codes often receive a lower priority in the process of compliance verification. Clearly, given a choice between working fire suppression sprinklers in a hospital or a working auto-dimming switch on a lighting system, the former would take precedence. This example provides a look into the core focus of this article — given current and likely future resource challenges and the need to apply resources to the top priorities, is there a way to compose energy and green or sustainable codes in such a way that compliance verification can be significantly simplified while concurrently  increasing compliance and delivered outcomes?

Going beyond ensuring a design meets a set of criteria “on paper,” high-performance buildings must be constructed pursuant to the plans and specifications and then commissioned and operated as real buildings. Achieving high performance requires a focus on actual performance throughout a building’s life cycle — from design and construction to operations and maintenance to deconstruction. Existing energy and green or sustainable codes are not presented in a manner that actually addresses the long-term performance of buildings, nor is the current enforcement process geared to look beyond occupancy at energy or water use issues.

Outcome-based policies 7 are emerging to shift focus from verifying compliance in design and construction and declaring success toward the actual performance of the building following issuance of an occupancy permit. These policies are intended to go beyond the performance-based codes that are based on prescriptive codes and do not require a measurement and verification process after occupancy.

Such policies would provide valuable feedback to building teams and result in progressive improvements in building design and construction. In effect, instead of trying to prescribe how to design and construct buildings, why not just state a simple measurable goal? Such an approach recognizes the myriad factors that affect the performance of the building. These are analogous to prescribing in detail all the things a runner must do, wear, eat, drink, etc., before a race; running down a checklist at the start of the race and then sending the runner home, versus simply putting up a finish line and measuring how fast the runner actually runs the course.

The implementation of outcome-based policies with respect to building energy and/or water use is elegantly simple, but will require rethinking existing norms around design fees, code enforcement, liability, contract duration and establishing new norms on what happens if the building does not perform to achieve the desired outcomes. 8

Trying to fit new approaches into an existing infrastructure not designed to accommodate those approaches can result in ineffective and frustrating attempts to verify and achieve compliance. It also ignores potential leverage points and areas of expertise that can be utilized in pursuit of established goals. Important tools to support long-term performance such as operations and maintenance plans and commissioning are designed to occur after the certificate of occupancy.

However, the existing code enforcement scheme is generally not set up to handle long-term monitoring requirements associated with energy and/or water use; a new holistic scheme designed to achieve specific energy- and/or water-use results for the life cycle of a building is necessary.

Start at the End

If the ultimate intent is to achieve net-zero energy- and water-use buildings, then codes and standards must be reformulated to focus on outcomes and the building design and regulatory systems must be reformatted to provide the most efficient process for reaching and verifying satisfaction of such goals. 9 This is particularly important as code enforcement agencies and building owners deal with a new economic environment where funds, personnel and other resources are limited. A singular focus on streamlining and/or applying more resources to support the existing code enforcement infrastructure may seem appropriate given the format and application time frame of current codes. Alternatively, one may want to start at the end goal and explore how that might be achieved in a process that reduces the stresses on the current support infrastructure.

Throughout the life cycle of a building, there are numerous touch points with government and other influencers that can impact how buildings ultimately perform. In addition to code officials, these include insurance companies, financiers, utilities, tax agencies, tenants and purchasers. Such touch points should be examined as potential opportunities to influence building performance. While the building community is recognizing the need for integrative design processes, an integrated compliance verification process appears equally attractive.

Achieving net-zero energy or water use (and any improvement in performance toward that end) requires both a well-designed and well-constructed building and well-managed operations and maintenance. The existing code compliance verification scheme has the capability to adequately examine the design and construction phase of a structure in a prescriptive code environment to determine compliance.

As buildings become increasingly complex — and as building modeling improves and owners and regulators demand specific levels of performance — the adequacy of the existing compliance verification scheme comes into question. Outcome-based policies can alleviate the need to bolster current compliance verification processes simply by changing what is measured when.

Once a minimum threshold is demonstrated, further details of the design of the structure are irrelevant; it is the actual energy or water use that matters. Outcome-based policies would set the desired end state while concurrently addressing stress associated with continuing to operate the current support infrastructure.

Going back to the running analogy, an examiner with a checklist at the start of the Boston marathon is replaced with timing chips, a starting gun and a finish line with the recognition that there may be certain minimum requirements that must be satisfied in order to run and that during the race there may be certain checks such as ensuring the course is not cut.

Reaching the End Goal

Through a results-focused approach to achievement of building energy- and water-use goals, a vast transformation of the building community is possible. An incentive- and market-based approach would account for actual energy use — which is what building owners actually pay for and policy makers actually want to reduce. By extending responsibility of the design and construction team beyond the certificate of occupancy and involving them with the building owner and operator during occupancy, valuable long-term feedback loops are established. The absence of many of the constraints present in existing energy and water codes would inspire technological and design innovation.

Code enforcement officials would remain as the main mechanism to support life-safety, but more recent requirements (and related challenges) associated with enforcement of energy and green codes would largely shift to the entities and policies that have the greatest ability to influence energy use.

The Price of Inaction

The building community has established performance goals for the buildings they design, construct, operate and maintain. However, there appears to be growing consensus that incremental improvements in existing codes will result in only marginal improvements — improvements based primarily on assumptions rather than actual as-occupied performance.

Without a comprehensive policy focused on achieving an identified result, piecemeal policies will continue to develop with an uncoordinated result. Eventually, compliance rates may drop as codes become more stringent with respect to energy and/or water use and state and local resources become more stretched.

A new approach to achieving building energy- and water-use goals is necessary. Such a new approach should be centered on the recognition that results are based on both the design and construction of buildings and how they are commissioned, operated and maintained; the current compliance verification scheme based solely on compliance verification through code department enforcement up to initial occupancy is inadequate and even if significantly enhanced would still only assess design and construction and not actual operational outcomes. It is those actual outcomes (rather than those anticipated by the design) that matter to building owners, policy makers and the public. More importantly, it is those outcomes that will address our energy, environmental and economic challenges.

The shift in approach to compliance verification cannot happen without the demand and insight of a progressive building community willing to stand behind the buildings they design, construct, own, operate and maintain and to support codes and standards that focus on measuring and reporting the actual performance of buildings.


1    Department of Energy, Buildings Energy Data Book, Table 1.1.3 and Table 8.1.1,

2    Energy Independence and Security Act of 2007 §401 (PL 110-140)

3    For the purpose of this article, the building industry is considered in a very broad sense to include everyone involved in the design,  construction, commissioning, operations, and financing of buildings and those involved in a similar manner with the myriad of  products, materials, systems, devices, etc. that comprise buildings. 

4  In general, a performance-based code establishes a desired result without indicating how that result is to be achieved. Conversely a prescriptive code provides specifics to individually govern all items in a building that would affect the outcome.

5  According to Hammurabi’s code, if a builder builds a house for someone, and does not construct it properly, and the house which he built falls in and kills its owner, then that builder shall be put to death. If it kills the son of the owner, the son of that builder shall be put to death. If it kills a slave of the owner, then he shall pay, slave for slave, to the owner of the house. If it ruins goods, he shall make compensation for all that has been ruined, and inasmuch as he did not construct properly this house which he built and it fell, he shall re-erect the house from his own means. If a builder builds a house for someone, even though he has not yet completed it; if then the walls seem toppling, the builder must make the walls solid from his own means.

6  It is possible that the permit would only cover certain aspects of construction and be updated during different phases of construction.

7  Prior discussion has focused on development of “outcome-based codes,” but as will be discussed later, this limited approach is inefficient and unlikely to reach the levels of actual performance desired.

8  For an examination of the existing norms and the challenges associated with a shift to outcome-based requirements see Colker, R.M., “Outcome-Based Codes: Answering the Preliminary Questions,” Strategic Planning for Energy and the Environment, Spring 2012.

9  The authors acknowledge that not all buildings can achieve net-zero energy or water use in the near future. However, all building owners and policies should reach for the lowest total energy use possible for a particular building. Development of net-positive energy and water buildings and community approaches to net-zero energy and water use will help even out some of these variations across buildings. The key distinction is measuring actual performance against some metric or designing and constructing to a set of limited prescriptions but not addressing actual performance.

About the Authors

Ryan M. Colker is director of the Consultative Council and presidential advisor at the National Institute of Building Sciences where he is responsible for leading the development of findings and recommendations on behalf of the entire building community and transmitting those recommendations to Congress and the administration.

Dave Conover has been involved with the development, adoption, implementation and enforcement of building construction regulations, focused primarily on energy use and technology acceptance, since 1976. At the Pacific Northwest National Lab he is currently focused on all aspects of energy codes and standards as well as development of new technology evaluation protocols.

Tim Ryan is the code administrator for the city of Overland Park, Kansas. He has served in the building code administration and enforcement profession for 34 years, all with Overland Park. He was recently appointed by President Obama to serve on the board of directors for the National Institute of Building Sciences. He is also currently serving as the executive director of the International Association of Building Officials.