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January 19‚ 2012
PACE-ing in Purgatory: Outlook
for Property Assessed Clean Energy Financing
By Jordan M. Collins
The once much-heralded financing mechanism to unlock energy
efficiency retrofits — Property Assessed Clean Energy Financing (PACE)
assessments — remained in a holding pattern during 2011. While states
continued to break down barriers to instituting PACE programs, federal
support remained at best unresolved, and at worst opposed to allowing PACE loans
for the ubiquitous, federally supported housing market. However, recent
litigation and introduced legislation signals a continued effort by energy
efficiency advocates to make PACE programs a mainstream financial
instrument for the residential housing market.
PACE Primer
The Property-Assessed Clean Energy (PACE) model is a
financing structure that enables state and local governments to raise money
through the issuance of bonds or other sources of capital to fund energy
efficiency and renewable energy projects.1 PACE programs use the same
kind of land-secured financing districts that municipal governments have
employed for over 100 years to pay for improvements deemed to be in the
public interest. For example, municipal-level property assessments have
proven to be an effective financing tool for investing in street paving,
public parks, water and sewer systems, street lighting, and seismic
strengthening.
The extension of this common municipal financing model to
energy efficiency and renewable energy investments allows a property owner
to install improvements such as weather sealing, insulation, energy
efficient boilers and cooling systems, new windows, and solar installations
without a large up-front cash payment. Further, by offering a long loan
tenor — typically twenty (20) years — PACE financing spreads the
cost of energy improvements over the expected life of the measures.
Policy Inception:
Picking Up Speed
Conceived in 2008 with a pilot program in California, the
original PACE program quickly caught the attention of other communities
around the country. In just three (3) short years, twenty-seven (27) states
have passed PACE-enabling legislation, and nearly twenty (20) more state
legislatures and local governments are currently considering authorizing or
implementing PACE programs.2
Some opponents of PACE programs have questioned their
constitutionality by asserting that PACE programs may violate the Due
Process Clause and/or the Contracts Clause of the U.S. Constitution on the
grounds that PACE assessments are given senior lien status over an existing
mortgage. However, such legal arguments have not proven persuasive.
Significant case law supports the constitutionality of government actions
like PACE programs which affect pre-existing, private contracts.3
PACE programs have arguably enjoyed tremendous success since
the first programs were stood up in 2007. By the fall of 2010, it was
estimated that roughly 2,000 homeowners had PACE assessments nationwide.
The City of Berkeley’s pilot program sold out in nine minutes, and Boulder
County, Colorado has sold over $10 million in municipal bonds to support
500 projects. Sonoma County, California, is nearing $40 million in approved
projects, and Palm Desert, CA has approved over $7.5 million in projects to
date. The modified PACE program in Babylon, NY has also shown initial signs
of success.4
From a macroeconomic perspective, a 2009 University of
California at Berkeley study concluded that if PACE programs became widely
adopted, the programs could infuse $280 billion of bond financing into the
economy, and reduce overall greenhouse gas (GHGs) emissions by up to one
(1) gigaton.5
PACE Mechanics: Taking a Page Out of the
Municipal Playbook
PACE programs are inherently local government programs. While
specific program elements inevitably vary by jurisdiction to meet the needs
of individual communities, and reflect differences in state laws, most PACE
programs share several basic features:
·
State and local governments codify either in law or public policy a
specific goal or objective such as promoting energy efficiency as a
modality to spur economic development, or enhance environmental standards.6
·
A municipal government then establishes a type of land or real
property secured financing district, also known as a “special tax” or
“special assessment” district. Participation in these districts is strictly
voluntary, and property owners choose whether or not to opt-in.
·
The municipality provides financing for energy efficiency projects,
typically funded through bond issuances secured solely by payments made
from participating property owners.
·
A contractor will assess the scope of desired improvements through
energy audits for efficiency measures, or cost estimates for renewable
projects’ projected energy savings. Any such assessment will evaluate
anticipated energy savings against the cost of installing energy efficiency
improvements or renewable energy systems.
·
Property owners benefitting from the improvement repay the
government issued bond through property assessments, secured by a property
lien, and paid as an addition to a property’s tax bill.
·
The financing is amortized over a long loan tenor through a “special
tax” or “assessment” on a participating property owner’s tax bill.
·
The financing is secured with by senior lien on the property and in
the event of foreclosure, the energy financier is paid before other claims
against the property.
·
If the property is sold before the end of the PACE repayment period,
the new property owner inherits both the remaining repayment obligation,
and the energy benefits accruing to the property as a result of the
PACE-financed improvements.
PACE Policy Rationale: Overcoming
Energy Efficiency Market Barriers
PACE programs are designed to overcome several market
barriers currently impeding property owners from making investments in
energy conservation measures. These barriers include:
· Limited
access to capital by property owners
· High
transaction costs associated with EERE investments
· Lack of
information leading to undervaluing efficiency investments
· Reservations
about fully recovering investments through energy savings before the
property is sold or transferred.
PACE programs address these well-understood market
deficiencies by providing access to low-cost capital at attractive
borrowing rates supported by state and local governments. Other benefits
associated with PACE programs include streamlining a borrower’s application
process, lower application and transaction fees relative to other lending
options, and establishing a financing mechanism that alleviates concerns
about stranding benefits associated with energy efficiency and renewable
energy improvements if a property owner sells or leaves the property. This
is because PACE loans – as well as the associated energy savings benefits –
“stay with the property.”
Because energy efficiency measures can lower a homeowner’s
energy costs by up to 35%, annual energy savings will typically exceed the
cost of PACE investments over the useful life of a property, transforming
the perceived upfront cost barrier into improved cash flow for property
owners, as well as potentially enhancing property values.
The Recovery Act: Scaling Up PACE
with Federal Support, Quickly
PACE programs garnered greater national prominence after
passage of the American Recovery & Reinvestment Act of 2009.7 In the Recovery Act, the Department
of Energy (DOE) received unprecedented funding for its State Energy Program
(SEP) receiving $3.1 billion, and for the first time, Congress appropriated
$3.2 billion in funding for the Energy Efficiency Block Grant Program
(EECBG).8 Both programs authorize state and
local SEP and EECBG funding recipients to leverage Federal grant awards to
develop innovative energy efficiency retrofit financing programs like PACE.9
In response to a surge in SEP funding, DOE received
approximately $80 million of applications by grant recipients to leverage
Recovery Act funding to provide the necessary upfront capital to establish
PACE-type programs in their communities.10 In 2009 and 2010, DOE actively
worked to promote and structure PACE programs with interested
municipalities and states. Internal DOE analysis in early spring 2010
indicated that more than forty (40) cities and states were using or
planning to use roughly $175 million of DOE Recovery Act funds to support
PACE programs. DOE began funding PACE financing mechanisms, as well as
incorporating new federally designed principles for state and local PACE
programs.11
Both members of Congress and Vice President Biden publicly
praised the PACE model as an important tool in addressing America’s
environmental and economic challenges. In October 2009, Vice President
Biden announced White House support of the PACE model, including the
availability of millions of federal dollars aimed at expanding the PACE
model to municipalities across the country.12
Despite federal policymakers recognizing the tremendous
potential PACE presented for unlocking the energy efficiency retrofit market,
other federal agencies with significant equities in financing and
regulating the U.S. housing market — Government Sponsored Enterprises
(GSEs) Fannie Mae & Freddie Mac and their conservator the Federal
Housing Finance Administration (FHFA) — took a drastically different policy
position on allowing municipalities to underwrite PACE loans backed by the
U.S. government. This internal divergence within the Executive Branch
resulted in a chilling effect on PACE market uptake.
Hitting the Proverbial Wall: Bank
Regulators Raise Concerns
Beginning in 2010, Federal regulators of the U.S. secondary
mortgage market began taking notice of PACE programs both encouraged by and
beginning to receive funding by DOE through the Recovery Act, starting to
express three (3) concerns with the financing mechanism. These concerns
were substantial, as they led to first a freeze, and ultimately a de
facto suspension of using PACE loans associated with residential
properties either owned by, or securitized by federal housing regulators.
First, regulators expressed a concern that because PACE
assessments created senior liens with priority over existing mortgages
backed by the GSEs, creating additional risks for lenders, servicers,
Fannie/Freddie, and other mortgage holders (i.e., investors in mortgage
backed securities) by exposing them to defaults on PACE assessments without
giving them control over the loan underwriting process.13 In other words, when GSEs
underwrote or purchased a mortgage, they did not anticipate a new lien
could supersede their senior creditor position after originating the loan
in the event of default. From a regulatory standpoint, the terms of the
GSEs Uniform Security Instruments prohibit loans that have senior lien
status to a mortgage, which PACE assessments would arguably hold.
Second, federal regulators expressed concerns that PACE
programs, which varied considerably in the design from one locality to
another, generally lacked sufficient underwriting criteria and consumer
disclosure provisions.14 They also expressed a concern about
the lack of centralized monitoring and enforcement of PACE program
features.
Finally, regulators were concerned that investments made
through PACE loans might not result in the projected energy savings,
putting borrowers in a potentially adverse financial position behind a PACE
lien. They raised questions about the lack of data on home energy
performance, practices for reducing home energy use, and potential impacts
on home values for homes that were upgraded through PACE programs. More broadly,
the regulators were concerned that PACE programs could create scenarios
that would enable predatory lending practices, as had been the case in the
past with various home improvement programs.
The Death Knell for Recovery Act PACE
Programs
Throughout the summer of 2010, the Administration attempted
to address bank regulators’ concerns and secure their support for a
carefully designed pilot program to enable the PACE concept to be fairly
tested in the residential market. Elements of the proposed pilot program
included a limited number of participants and required the adoption of a
set of “best practices” to mitigate the perceived risk exposure PACE loans
presented to federal bank regulators such as limiting the size of the PACE
lien to a percentage of a property’s value. Administration officials also
floated the concept of fully guaranteeing all PACE assessments by using
Recovery Act funds to establish a loan loss reserve, serving as a federal
backstop for defaulted PACE loans. Such a fund sought to alleviate
regulator concerns about the senior status of PACE assessments in relation
to underlying home mortgage loans they originated or secured. However,
Administration efforts did not prove persuasive, and a series of policy
statements made by Fannie Mae, Freddie Mac, FHFA, and other bank regulators
signaled their positions were hardening.
On May 5, 2010, Fannie Mae and Freddie Mac sent a letter to
bank lenders inquiring as to whether or not states or municipalities in
which conducted business had existing or prospective PACE or PACE-like
programs. The purpose of this communication was two-fold: (1) to warn
lenders that “programs with first liens (i.e., PACE) run contrary to the
Fannie Mae-Freddie Mac Uniform Security Instrument”, and (2) that the GSEs
would “provide additional guidance should the programs move beyond the
experimental stage.” 15 This letter served as GSE’s
official warning.
On July 6, 2010, the FHFA issued a statement that PACE
programs “present significant risk to lenders and secondary market
entities, may alter valuations for mortgage-backed securities and are not
essential for successful programs to spur energy conservation.”16 In the statement, the FHFA directed
Fannie and Freddie to adopt policies that effectively precluded homeowners
from participating in PACE programs as designed.17 The same day, the Office of the
Comptroller of the Currency (OCC), the Federal Deposit Insurance Corporation
(FDIC), and the National Credit Union Administration — independent agencies
that regulate various sectors of the banking system — issued similar
statements.18
On August 31, 2010, Fannie Mae issued guidance to lenders
stating that, “Fannie Mae will not purchase mortgage loans secured by
properties with an outstanding PACE obligations unless the terms of the
PACE program do not permit priority over first mortgage liens.” 19 The statement also instructed
borrowers contemplating refinancing their mortgage with sufficient equity
in their homes to pay off any PACE assessments.20 Freddie Mac issued a similar
statement.
By the fall of 2010, almost all PACE programs focused on the
residential sector had been effectively frozen. DOE recognized that the
aforementioned policy positions taken by the federal bank regulators
undermined any efforts to leverage Recovery Act funds to capitalize state
and local PACE Programs. DOE remarked,
“…Recovery Act grantees are not expressly
prohibited from using funds to support viable PACE financing programs,
however the practical reality is that residential PACE financing programs
with a senior lien priority face substantial implementation challenges in
the current regulatory environment. In light of the clear opposition from
the regulators for PACE financing programs with a senior lien priority,
prudent management of the Recovery Act compels DOE and Recovery Act grantees
to consider alternatives to programs in which the PACE assessment is given
a senior lien priority.” 21
Some of those alternatives included modified PACE assessments
subordinate to first mortgages (similar to a structure piloted in Maine) or
other creating other financing mechanisms such as revolving loan funds or
loan loss reserves for state energy efficiency financing programs.22 However, frustrated with the
federal bank regulators position, states began to take matters into their
own hands, challenging FHFA in federal court in September 2010.
On Life Support: California v.
FHFA
Then California Attorney General Jerry Brown filed a lawsuit
against FHFA in the 9th Circuit, alleging the agency did not: (1) complete
the statutorily required environmental review in violation of the National
Environmental Policy Act (NEPA), and (2) the federal bank regulator’s 2010
statements amounted to a “substantive rulemaking”, thereby violating the
requirements of Administrative Procedure Act (APA) which governs the
Federal rulemaking process.23 In its August 26, 2011 opinion, the
Court agreed with the State of California, and held that FHFA’s actions
indeed violated both NEPA and the APA. However, the Court declined to weigh
in on the policy conclusion reached by FHFA, minimizing the impact of the
decision.24
National Environmental Policy Act
Under NEPA, a major federal action that may significantly
affect the human environment cannot be issued without an environmental
assessment or environmental impact statement.25 California argued successfully that
FHFA’s attempts to “pause” PACE financing amounted to a “major federal
action” for the purposes of reviewing the agencies’ action under the
National Environmental Policy Act (NEPA) because FHFA “altered the
environmental status quo”.26 The Court held that FHFA’s failure
to comply with NEPA constituted an arbitrary and capricious agency action,
was an abuse of discretion, and was contrary to procedures required by law.27
Administrative Procedure Act
Under the APA, agencies undertaking a “major federal action”
must follow a public notice and comment process unless an exception or
exemption is applicable.28 In its opinion, the Court held that
FHFA’s 2010 policy statements amounted to a “substantive rulemaking”
because its actions directing Fannie Mae and Freddie Mac to prospectively
refrain from purchasing any mortgage loan secured by property with an
outstanding PACE obligation did not merely constitute an agency
interpretation.29 Based on the facts presented, the
Court held that FHFA’s policy statement could be characterized as “final
agency action” with a legally binding effect (regardless of how FHFA
characterized the statement), and that the policy was therefore subject to
judicial review.30
In light of the 9th Circuit’s ruling, and from a purely
procedural standpoint, the FHFA – pursuant to the APA – must now issue a
notice of proposed rulemaking (NOPR) addressing its position on PACE loans,
then undertake the formal notice and comment period before the agency
issues a Final Rule on the subject.31 Observers have speculated FHFA
should begin this process around January 20, 2012 (the FHFA has asked for a
brief delay because it is moving its offices), with an opportunity for the
public to submit comments for at least sixty (60) days after FHFA publishes
the NOPR in the Federal Register.32 FHFA will then have thirty (30)
days to publish its proposed rule on PACE programs, which will subsequently
trigger another round of public comment before the Final Rule is published.
From a policy perspective, requiring FHFA to follow the APA
and conduct a NEPA review of its now court-directed rulemaking may simply
result in a moral victory. The federal conservator may ultimately come to
the same conclusion reached in its 2010 policy statements after following
the formal APA rulemaking process, and may still prohibit GSEs and bank
lenders from allowing PACE loans in their portfolios. The 9th Circuit’s
opinion reinforces that future PACE policies lie solely within the purview
of the FHFA, remarking “…the claims [made by California] do not oblige the
Court to evaluate whether the FHFA arrived at the correct conclusion, as a
matter of policy.” 33
However, alternative pathways forward for PACE financing
programs may lie in the Administration’s creative use of existing
authorities, or through Congressional legislation.
Use of Existing Authority: Federal
Housing Authority (FHA)
Although FHFA has issued policy statements effectively
barring Fannie Mae and Freddie Mac from insuring mortgages for homes with a
PACE assessment, the Federal Housing Authority (FHA) is not subject to FHFA
conservatorship or regulatory oversight, and could serve as another pathway
for supporting the adoption of state and local PACE programs.
Housed within the Department of Housing & Urban
Development (HUD), FHA provides federal insurance for private mortgages
associated with single family and multifamily homes, including manufactured
homes and hospitals. FHA is the largest insurer of mortgages in the world,
insuring over 34 million properties since its inception in 1934, and
currently insures 25% of the U.S. residential housing market.34
Under current FHA policy, the agency’s insurance instruments
reimburse mortgage holders for the full costs of property taxes associated
with a home in the event of a mortgage default. Therefore, FHA could agree
to provide a 100% federal guarantee of PACE assessments levied on new or
refinanced mortgages insured by the FHA. FHA lenders could in turn also
agree to allow the PACE assessments to be senior to their loan. Because the
PACE assessments could be fully guaranteed by FHA, those financial
obligations would theoretically impose no additional risk to the lender or
a subsequent mortgage holder.
The advantage of leveraging FHA’s position in the residential
housing market is three-fold: (1) FHA insures a significant (and growing)
portion of the housing market allowing PACE programs to be meaningfully
scaled, (2) HUD would not need additional legislative authority or
appropriations from Congress, and (3) HUD would not be required to seek
FHFA, Fannie, Freddie, or other Federal bank regulators’(e.g., FDIC, OCC)
approval because FHA-insured mortgages are not sold or securitized through
Fannie/Freddie, nor are they subject to FHFA regulations. (The secondary market
for FHA-insured mortgages exists through Ginnie
Mae, which is part of HUD and not in any way associated with FHFA, Fannie
or Freddie.)
Efforts to leverage FHA for PACE programs are currently under
consideration by agency officials, but remain purely deliberative as of the
date of this article. The Administration has not taken a formal policy
position, or signaled it will take definitive steps to allowing PACE
programs in conjunction with FHA-insured mortgages.
The Last Resort: Legislation in an
Election Year
The most elegant and effective solution to overcome FHFA’s
entrenched policy stance towards PACE programs is for Congress to show clear support for PACE programs. Advocates for
PACE financing have sought Congressional approval to introduce legislation,
which has received bipartisan support on from both House and Senate
members.
In the 112th Congress, Rep. Nan Hayworth (R-NY) introduced
H.R. 2599, the “PACE Assessment Protection Act of 2011” to prevent Fannie
Mae, Freddie Mac and other federal residential and commercial mortgage
lending regulators from adopting policies contravening established state
and local property assessed clean energy laws.35 The bill received fifty-one (51)
cosponsors, including thirty (30) Democrats, and twenty-one (21)
Republicans. H.R. 2599 is identical to both H.R. 5766 and S.3462 introduced
by Representatives Mike Thompson (D-CA), and Senator Barbara Boxer (D-CA),
respectively in the 111th Congress.36
The legislation, if enacted, would prevent FHFA and mortgage
underwriters from discriminating against communities implementing or
participating in a PACE program, including a prohibition on lending within
the community or requiring more restrictive underwriting criteria for
properties within the community.37
Further, the legislation would also mandate the adoption of
underwriting standards aligned with DOE’s PACE guidelines released in May
2010.38 These underwriting standards would
explicit incorporate the aforementioned White House Policy Framework for
PACE programs to provide that, “in the event that a tax or assessment under
a PACE program is delinquent, only the unpaid delinquent amount along with
applicable penalties, interests, and costs will be subject to foreclosure
and not the entire amount.”39
While strong bipartisan support has been an unusual
occurrence in the 112th Congress, so too has a clear legislative vehicle for
meaningful energy legislation unrelated to tax policy. Despite the
well-documented gridlock in Washington, H.R. 2599 remains one of the more
promising pieces of energy legislation that could be enacted in an election
year.
A likely legislative scenario would be to incorporate H.R.
2599 into the most bipartisan energy bill introduced in the 112th Congress,
“The Energy Savings and Industrial Competitiveness Act of 2011”.40 Introduced by Senators Shaheen (D-NH) and with support from Sen. Portman
(R-OH), Landrieu (D-LA) and Coons (D-DE), the bill has gone through several
iterations, several hearings before the Senate Energy & Natural Resources
Committee, and is a strong candidate for advancing through the legislative
process in 2012.
Conclusion
In a recent National Journal article, PACE programs were
cited by the Brookings Institution as one of eleven (11) policy measures
that could prove effective in jumpstarting economic growth in the United
States.41 The President’s Council on Jobs
& Competitiveness 2011 Year End Report also called for the U.S.
government and the private sector to “continue to promote energy efficiency
measures… and provide innovative financing options for homeowners
undertaking retrofits.” 42 PACE programs could fulfill that policy
recommendation.
While PACE programs remained in some version of legal
purgatory in 2011, the recent 9th Circuit decision, the impending FHFA
rulemaking, and the sustained bipartisan support for PACE programs are
positive developments pointing towards a busy 2012 for stakeholders seeking
to catalyze the residential energy efficiency retrofit market.
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1
For a general overview of PACE financing mechanisms, see
http://www1.eere.energy.gov/wip/solutioncenter/financialproducts/PACE.html
2
For the status of enacted and proposed, State level PACE
legislation, see http://pacenow.org/documents/021610%20PACE%20Legislation%20Table.pdf
3
“The Constitutionality of Property Assessed Clean Energy
(PACE) Programs”, available at http://pacenow.org/documents/PHJW%20PACE%20White%20Paper%205.28.10%20(final).pdf
(May 28, 2010)
4
For a general discussion of the original PACE programs, see
http://rael.berkeley.edu/financing/resources
5
“Guide to Energy Efficiency & Renewable Energy Financing
Districts for Local Governments”, available at http://rael.berkeley.edu/sites/default/files/old-site-files/berkeleysolar/HowTo.pdf
6 Legislation
is required because local communities generally must establish “assessment
districts” in which to offer PACE programs, similar to those established to
fund other public improvement project such as sewers and sidewalks.
7 American
Recovery & Reinvestment Act of 2009, Pub. L. No. 111-5, 123 Stat. 115
(February 17, 2009).
8 Id.,
at 123 Stat. 138.
9 See
42 U.S.C. §6322(d)(4); U.S.C. §17154(4). (Authorizing SEP and EECBG grant
recipients to use federal funding for energy efficiency financing
programs).
10
Executive Office of the President, “Policy Framework for
PACE Financing Programs”, available at http://www.whitehouse.gov/assets/documents/PACE_Principles.pdf
(May 18, 2009).
11
Department of Energy, “Guidelines for Pilot PACE Financing
Programs, available at http://www1.eere.energy.gov/wip/pdfs/arra_guidelines_for_pilot_pace_programs.pdf
(May 7, 2010).
12
Executive Office of the President, “Recovery through
Retrofit”, available at http://www.whitehouse.gov/assets/documents/Recovery_Through_Retrofit_Final_Report.pdf
(October 2009).
13
Federal Housing Finance Agency “FHFA Statement on Certain
Energy Retrofit Loan Programs,” available at http://www.fhfa.gov/webfiles/15884/PACESTMT7610.pdf
(July 6, 2010 ) (First liens established by PACE loans are unlike routine
tax assessments and pose unusual and difficult risk management challenges
for lenders, servicers and mortgage securities investors).
14
Note 13, supra. (“Underwriting for PACE programs
results in collateral-based lending rather than lending on ability-to-pay,
the absence of Truth in Lending Act and other consumer protections…”)
15
Fannie Mae, “Letter LL-2010-06,” (May 5, 2010) ; Freddie
Mac,” Industry Letter,” (May 5, 2010 ), available at http://pacenow.org/blog/wp-content/uploads/2010-05-05-Freddie-Mac-Lender-Letter1.pdf
16
http://pacenow.org/documents/DOE%20FHFA%20Letter%205.24.10.pdf
17
Id.
18
Office of the Comptroller of the Currency, “Supervisory
Guidance,”( July 6, 2010), available at http://www.occ.gov/news-issuances/bulletins/2010/bulletin-2010-25.html
19
Fannie Mae, “Options for Borrowers with a PACE Loans”,
Announcement SEL-2010-12, (August 31, 2010) available at https://www.efanniemae.com/sf/guides/ssg/annltrs/pdf/2010/sel1012.pdf;
Freddie Mac, “Bulletin 2010-20” (August31, 2010), available at http://www.freddiemac.com/sell/guide/bulletins/pdf/bll1020.pdf
20
Id.
21
Department of Energy, “Status Update – Pilot PACE Financing
Programs” (July 2010), available at http://www1.eere.energy.gov/wip/pace.html
22
Id.
23
California v. Federal Housing Financing Agency,
No. C-10-03084 (N.D. Cal. 2010). California’s petition is available at http://pacenow.org/blog/wp-content/uploads/09-15-2010-CA-vs-FHFA-PACE-Lawsuit.pdf
24
Id. The 9th Circuit’s opinion is available at http://www.courthousenews.com/2011/08/31/410-cv-03084.pdf
25
42 U.S.C. §4322(2)(c) (Pursuant to NEPA, all federal
agencies to prepare environmental impact analysis (an EA or an EIS) for any
major action that may significantly affect the quality of the human
environment)
26
Id.
27
Note 24, supra.
28
5 U.S.C. §§ 551(4), 551(5), 553 (The APA’s rulemaking
requirements include publication of the proposed rule in the Federal
Register and an opportunity for public comment.)
29
Note 24, supra.
30
Id.
31
See generally 12 U.S.C. § 4513. (The
Director (of FHFA) shall issue any regulations, guidelines, or orders
necessary to carry out the duties of the Director (enumerated at) under
this chapter or the authorizing statutes, and to ensure that the purposes
of this chapter and the authorizing statutes are accomplished.)
32
See PACENow website: http://pacenow.org/blog/
33
Note 24, supra.
34
For more information, visit the Federal Housing Authorities’
website: http://portal.hud.gov/hudportal/HUD?src=/program_offices/housing/fhahistory
35
“PACE Protection Act of 2011”, H.R. 2599, 112th Cong.
(2011).
36
See H.R. 5766 and S. 2462, 111th Cong. (2010).
37
H.R. 2599, 112th Cong. §2(b) (2011).
38
Note 11, supra.
39
Note 35, §2(a).
40
“Energy Savings and Industrial Competitiveness Act of 2011”,
S. 398, 112th Cong. (2011).
41
http://nationaljournal.com/economy/12-ways-to-jump-start-economic-growth-not-increasing-the-deficit-edition-20110811
42 President’s Council on Jobs &
Competitive, “Road Map to Renewal” (2012), available at http://files.jobs-council.com/files/2012/01/JobsCouncil_2011YearEndReportWeb.pdf
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