Regulation--It really works

A number of posts have been popping up in the blogosphere about new regulations for green building and global climate change. For example, greenbuildingsnyc have a nice piece about the three green building regulations waiting for Governor Schwarzenegger's signature--http://www.greenbuildingsnyc.com/?p=314-- and Earth2Tech discusses John Doerr's speech at a Silicon Valley conference noting that the high-profile Kleiner Perkins Caufield & Byers partner called for greater participation by the government in driving greentech forward according to Earth2Tech--http://earth2tech.com/2007/09/26/john-doerr-we-need-government-to-drive-greentech/.

All of this is evidence of what I consider to be a governmental leadership vacuum at the federal level. Despite the historical success of large scale envrionmental regulation, like the Clean Water Act adn the Clean Air Act, and the recent success of requiring sustainable energy sources at the state level--http://sustainablog.blogspot.com/2007/09/maria-energia-numers-are-in-renewable.html-- at the climate meeting last week, George Bush is still pushing the market-based approach to dealing with environmental issues. http://www.thedailygreen.com/2007/09/28/president-bush-technology-and-trade-will-fix-global-warming/7340/

Recently, even the energy industry is seeking regulatory guidance. http://www.worldchanging.com/archives/007333.html Businesses and citizens cannot thrive in a world of uncertainty, and global climate change is creating a lot of uncertainty. It is the government's obligation--indeed its highest use--to use regulation to create a more secure climate for people and business. The federal government has essentially let down its part of the social contract by failing to provide leadership--in the form of mandatory regulations--to address global climate change.

More green sprawl

After Best Buy announced they were doing green stores, I wrote an extensive column on green sprawl for the good folks over at Greener Buildings--http://www.greenerbuildings.com/news_detail.cfm?Page=1&NewsID=35868. Here is more green sprawl development--Staples and Office Depot have decided to build green stores as well-- http://jetsongreen.typepad.com/jetson_green/2007/09/office-depot-st.html.

Similarly, Jetson Green has a piece on a 9,500 square foot "green" home--http://www.jetsongreen.com/2007/09/9800-sf-luxury-.html. Seriously--there is nothing sustainable about a single family home this size.

Green Federalism and The Role of Local Government in Environmental Regulation

Since the end of the Clinton administration, environmental regulation in the United States has largely been the domain of the states and local governments. This eventuality is somewhat counter-intuitive. Environmental damage has traditionally been a prime candidate for federal regulation because of its cross-border effects. The pollution which is generated in Mississippi will blow into Alabama, the water which is used in Colorado is unavailable in California. The first federal regulation of the environment in the 1970s and 1980s was basically established on this premise.

However, the lack of federal action on global warming s has created a well-spring of creative legal experimentation with local control of cross-border problems. For example, California is proposing to triple its greenhouse gas regulations over the next few years, proposing regulations requiring trucks and trailers to be fitted with devices to reduce aerodynamic drag, setting standards to reduce perfluorocarbon emissions in the semiconductor industry and having workers at tuneup and oil-change shops check tires for proper inflation as part of the service. Several states have developed anti-sprawl initiatives, including urban growth boundaries, open space preservation requirements and tranditonal neighborhood development zoning plans. SQUARING THE CIRCLE ON SPRAWL: WHAT MORE CAN WE DO? PROGRESS TOWARD SUSTAINABLE LAND USE IN THE STATESNAME, Patricia E. Salkin, 16 Widener L.J. 787 (2007). Most significant may be the regional and even international accords which are developing, including the Regional Greenhouse Gas Initiative in the Northeast--http://www.rggi.org/-- and the Western Climate Initative--http://www.westernclimateinitiative.org/Index.cfm.

But the ultimate question remains--can a non-federal patchwork of environmental regulations effectively combat global warming? I think not. There will be states and regions that lag behind, failing to regulate pollutants. Companies interested in avoiding the regulations will relocate to those areas with fewer regulations. The federal government maintains its ability to preempt any state or regional regulations, so that the federal government can clip the wings of any local or regional regulatory scheme.

However, state and local action may be responsible for shifting the federal government towards further regulation, and providing a pre-tested set of initatives which could be scaled up to the national level under new leadership.

Fox News' Take On LEED--There really are no words

I was casually going about my business gathering news on green building for greenlaw and came across this bit on LEED from Fox news. http://www.foxnews.com/story/0,2933,295960,00.html

There...really...are...no...words. It is another example of Fox's well documented attack on environmental causes. http://action.sierraclub.org/site/MessageViewer?em_id=24521.0

Essentially, Fox argues that because LEED standards have been proposed as part of the House Energy bill and the GSA has mandated that all new construction projects and substantial renovations must be LEED certified that "Building green" soon may be more about stealthily raking in cash from taxpayers than constructing "eco-friendly" buildings, if the U.S. Green Building Council, or USGBC, has its way in Congress."

That's right--green building is a conspiracy by the USGBC to bilk taxpayers of their money. Only the folks over at Fox could come up with this stuff.

Courts Count

The International Herald Tribune wrote an article here--http://www.iht.com/articles/ap/2007/08/22/america/NA-GEN-US-Global-Warming-Reports.php--about a Northern District of California case which resulted in an Order to the Bush administration to issue two reports on global warming that it had been withholding. An article from Daily Green notes that a Vermont court has upheld a state's right to determine vehicle emissions--http://www.thedailygreen.com/2007/09/13/states-too-can-require-cars-to-cut-global-warming-imapact/6588/. These decisions underscore an important issue --the role of the courts in environmental preservation.

Essentially, only the judiciary can order the executive branch to fulfil its legal obligations. Only the judiciary can determine which laws will be enforced. Therefore, environmental laws are only as strong as the judiciary which is appointed to uphold them. As we saw from the radically conservative opinions which were handed down by the Supreme Court this spring, the highest court of the land is unlikely to uphold or enforce environmental laws which obligate private entities or the executive branch. Therefore, even if the zeitgeist is shifting towards greater governmental involvement in environmental issues, it will be a generation before the judiciary can be changed to ensure that the laws are enforced.

Green Litigation--The Next Wave Of Green Building

As I sit here today, I will guarantee that the next year will bring the first wave of green litigation--litigation over buildings that fail to live up to their green billing. For example, in Australia, the Melbourne City Council's new state-of-the-art office building, which was "green star" certifiied, many of the green features do not work. http://www.theage.com.au/news/national/civic-showpiece-failing-to-deliver/2007/08/28/1188067111145.html The daylighting proved too dim for the workers' needs, a greywater system was not operational. Worse still, some are causing active issues, like allowing legionella into the cooling system.

Who is to blame when the green features fail? Will the contracts among the relevant players--architect, general contractor, developer, commissioner--be robust enough to allocate the liability? I doubt it--and lawyers, judges and juries will be introduced into a brave new world of environmental litigation. With new technology and lots of hype comes broken promises--and with them, litigation.

Update on Las Vegas

The Nevada Appeal provides an update on the debacle over the Nevada green building tax incentives which blew up earlier this summer. http://www.nevadaappeal.com/article/20070831/NEWS/108310109

Interestingly, Nevada Democrats appear to be the ones who are trying to make the incentives available to fewer projects.