Green Building Law

GREEN BUILDING LAW IS MOVING TODAY!

2008-12-02T14:07:00.005-05:00

As of TODAY! Green Building Law is moving to its new, fabulous site:

www.greenbuildinglawblog.com

All the old content has been migrated over, including your fabulous comments.

No new posts here--reset your google readers and see you at the new site!

Who's Afraid Of The Big Bad Lawyers?

2008-12-01T15:19:00.001-05:00

As I mentioned briefly in my Greenbuild post at Green Building Law, legal issues, especially risk and liability associated with building green, were little discussed at Greenbuild.

A bunch of green building lawyers were sitting around and speculating why this might be. The conclusion we came to was that the U.S. Green Building Council did not want to highlight concerns or risks associated with building green at its feel-good festival. This is a mistake.

Lawyers, in their best role, are advisers that help clients avoid potential pitfalls. Someone once said that if you are involved in litigation, you have already lost. Litigation is expensive, time consuming and essentially a zero-sum game. Much litigation could be avoided if clients came to their lawyers and discussed potential legal liability ahead of time and took proactive steps to limit their exposure.

Read the rest of this post at Greenerbuildings.com

Pink Is The New Green

2008-11-28T10:07:00.003-05:00

In my summary of my experiences at Greenbuild, I blogged:

The economy tanking may be the push needed to implement basic green changes like energy efficiency and conservation. The next big green thing is likely to be blown insulation, not photovoltaics.

Let's define our terms first. Futurelab has a nice succinct definition of both:

Energy efficiency means that users of powered devices can get the same enjoyment or use out of a more efficient device that uses less energy. Energy conservation is a planful pattern of human action by which energy use is avoided.

In order to effectively reduce our energy consumption, we need to do both.

To date, much of the action in green building legislation has encouraged higher complexity energy efficiency technologies, like tax incentives for photovoltaics. There is nothing wrong with incentivizing solar, but it is not the most efficient use of the first dollar invested in green building.

Instead, green building legislation should include incentives which encourage energy efficiency and conservation measures first, and longer term/higher cost measures later. One regulatory mechanism for acheiving this is to require each project seeking government funding to have an energy audit. The audit would identify a suite of energy efficiency and conservation measures to be implemented, and the cost and savings associated with each. The legislature could then tier its incentives to compensate the highest energy v. cost savings as determined by the audit.

In addition, the federal government could enhance national building standards for energy efficiency. States and local government could incentivize simple energy efficiency and conservation measures--like the afforementioend energy audits, enhanced insulation, cool roofs, efficient HVAC systems, and new windows and doors
[The DOE has a list of short and long term energy efficiency measures]

With fewer dollars, both public and private, available due to the economic crisis, we need to maximize the cost/benefit calculus by identifying the most efficient energy saving techniques. In other words, we need to make pink (insulation) the new green.

UPDATE: Christian Science Monitor had a nice little article on this subject. They did not, however, have many creative ideas about legislating for energy efficiency.

ASHRAE 189 Update

2008-11-26T21:31:00.002-05:00

Green Building Insider has an article that USGBC is reconstituting the ASHRAE 189 standard committee, but is committed to going forward with the code version of LEED which local governments can incorporate into their regulations.

Green Building Law--Quoted!

2008-11-26T21:11:00.002-05:00

I was quoted in an article at buildinggreen.com on the AHRI v. Albuquerque suit.

Happy Thanksgiving everyone!

Listening To Greenbuild

2008-11-21T21:26:00.005-05:00

Things have been a bit quiet here at GBL because I went to Greenbuild this week. Greenbuild is a conference of 30,000+ green building professionals.

I decided not to blog or tweet the conference, but rather to try to really listen to what my green industry fellow travellers were saying. So here is what I heard, in reverse order of importance:

10. Green is becoming mainstream. There were lots of green products providers, but the exhibit hall was primarily filled with the usual suspects in the building industry--Turner, Kohler, skanska, etc.

9. Data is becoming available. A lot of the exhibitors brought nice compilations of data on green building stock. The General Services Agency was giving away flash drives with new data on its large stock of LEED building, for example. The quntification of performance on green buildings should benefit the business case.

8. Fireman's Fund is leading the pack of insurers with green products for building green or insuring green replacement in the event of loss. They are also considering creating a risk product for designers of green buildings.

7. NAHB is going after LEED-H in a big way. A new, more robust NAHB green standard for residential should be out shortly which will give LEED-H a run for its money.

6. Green building policy was well covered, but carbon policy got short shrift. The one session dealing with carbon policy at the state and federal level was cancelled, with no explanation.

5. Enacting green building policies in major municipalities requires LEED APs in relevant municipal agencies to act as agents of change.

4. There was remarkably little concern over the economy's effect on getting buildings built, which seemed strange at a conference for the building industry.

3. The economy tanking may be the push needed to implement basic green changes like energy efficiency and conservation. The next big green thing is likely to be blown insulation, not photovoltaics. [Green Decoder has a nice article on green winterization for a head start]

2. Legal issues, especially risk and liability associated with building green, were little discussed. Where legal issues were highlighted, like a seminar on green leasing, the practioners did not appear to have deep understanding of the green legal issues [Caveat--there was a paid additional seminar on green leasing today that I could not attend--did anyone go and want to comment?].

1. There are no bars open after 2 am in Boston.

I will post more on each of these issues over the coming weeks, and I would welcome other greenbuild attendees to submit their thoughts on greenbuild.

New Green Building Litigation In The Offing--Shade Trees v. Solar Panels

2008-11-16T13:05:00.003-05:00

The LA Times had a story about a neighborly spat over shade trees v. solar panels. Apparently, the Shade Control Act in California prevents shade trees from blocking more than 10% of sunlight from a solar array:

It protects homeowners' investments in solar panels, which can cost tens of thousands of dollars. Property owners whose trees block the sun from more than 10% of their neighbors' panels can be fined as much as $1,000 a day if they refuse to trim them.

Although GBL has not heard of this particular strain of litigation before, NIMBY issues are not new to solar installations. See here for a story on local zonign laws which originally prevented Al Gore from installing solar panels on his Tennessee home.

Strengthening States' Authority To Enact Tougher Green Building Standards

2008-11-12T10:02:00.003-05:00

Treehugger has an article identifying 7 executive orders which Obama should sign to protect the environment.

The one which interested me calls for protecting stronger state laws from weaker federal ones

The next President should [...] should amend the existing Executive Order on Federalism to strengthen provisions setting forth a presumption against preemption; require agencies to provide a written justification for preemption; and require that, when a federal statute allows states to adopt more stringent standards or seek a waiver of statutory preemption (as in EPA's denial of California's Clean Air Act waiver), agencies must provide a written justification to the White House before denying the state's regulatory authority or waiver request. As is the case with the existing Executive Order on Federalism, these recommendations are consistent with the goals of the various statutes under which the environmental, safety, and public health agencies operate, including the National Environmental Policy Act.

The preemption issue has proven to be extremely significant in green building regulatory challenges. In AHRI v. City of Albuquerque, we saw an effective challenge to Albuquerque's green building code based on weaker federal energy standards for HVAC equipment. See my post here for more on the AHRI v. City of Albuquerque case.

However, an executive order will not go very far to prevent federalism challenges to green building regulation. For example, it would not have effected the challenge to Albuquerque's green building code because 1) the City of Albuquerque never applied for a waiver, so the executive order would not have applied in that case, and 2) Congress specifically preempted state regulation of energy efficiency of HVAC equipment.

See related posts on green building law and federalism here

A fun link for you greenlaw buffs!

2008-11-11T20:04:00.001-05:00

Vote for the next head of EPA at Grist

China v. US--Top Down v. Bottom Up Green Building Standards

2008-11-11T09:38:00.003-05:00

Via @allroads on Twitter, I found an interesting presentation on the difference between green building standards in China and the United States. As I discussed here China takes a top down approach to mandating environmental change. In the United States, it is a more bottom up, market based approach. We will see how/if this changes with a more environmentally interested president in the White House. Do you think top-down or bottom-up is more effective?

Green Laws Make US Competitive In The World Renewables Market

2008-11-07T16:29:00.003-05:00

Redgreenandblue.org had an article here that "BP has dumped its plans to build out wind farms and other renewable projects in Britain for projects in the United States" because of the tax incentives for renewables in the United States and Barack Obama's promise to spend $150 billion over 10 years to kick start a renewable energy revolution.

In other words, because of green laws and incentives, the United States is competitive for renewable energy on the world market. What does that mean? More clean energy here, and more green jobs.

Give yourself (and the earth) $4000

2008-11-06T14:10:00.002-05:00

Daily Green had a nice post on how to save $4000 annually and go green available here

The Morning After--What Obama Will Mean For Green Building And The Environment

2008-11-05T10:46:00.005-05:00

I wrote a column yesterday on Greenerbuildings.com about the need for our next leader to take us from a red America and blue America to a green America.

Now we know that Obama will be the leader to take on that challenge. I was pleased that he spoke of our planet in peril in last night's acceptance speech, and of the opportunity for green jobs to help heal our damaged economy.

Environment and Energy Daily is reporting here that Obama will begin almost immediately working on these issues by going on a listening tour to explore "energy and environmental issues before Inauguration Day in an attempt to build momentum for its policies and legislative plans," allowing California to enhance its automobile standards, setting the stage for cap and trade and investing $15 billion per year to promote the deployment of renewable technologies.

My fellow greenerbuildings.com blogger Leanne Tobias details the Obama plan here

The future looks distinctly brighter, and greener, this morning.

Green Building Law Featured on EcoBuild

2008-11-03T14:15:00.004-05:00

The nice folks over at Ecobuild featured Green Building Law today. http://www.ecobuildmedia.com/

They are hosting the EcoBuild Fall Convention in Washington, DC, the most comprehensive event and exhibition with a focus on the ecological aspects of cutting edge IT at the Washington, DC Convention Center, December 8-11, 2008.

Moreover, they run a great blog with lots of green products and resources.

Leveraging The Power Of Wholesale Change Through Governance

2008-10-31T10:43:00.004-04:00

I spent yesterday afternoon at a board retreat for the Delaware Valley Green Building Council. Much of the discussion focused on the appropriate level of education/outreach to disseminate green building knowledge and transform our built environment. Should policy influencing bodies focus on wholesale change by targeting education/outreach to thought leaders, or retail change by targeting individuals or households?

One of the elements which has gotten lost in the discussion of small versus big government and government lobbying is government's role in transforming wholesale change into retail change. Policy influencing bodies like the DVGBC, USGBC, etc. can use their limited resources on education and outreach to policy makers, who in turn make laws which change the behavior of innumerable individuals.

Green building laws are an excellent example of this transformation. This election cycle, there are several green initiatives on the ballot. For example, a $17.9billion initiative in Washington for improvements to commuter rail and bus service http://law.lexisnexis.com/practiceareas/Environment-Climate/179-billion-clean-transit-plan-on-Seattle-area-ballot.

Additionally, Oregon and New Jersey have been developing comprehensive green building regulatory initiatives. Oregon--http://www.natresnet.org/resblog/post.asp?iPostID=7105; New Jersey--http://www.njlawblog.com/2008/10/articles/real-estate/green-building/legislative-initiatives-in-green-building-arena-abound/

As a result of these laws, buildings in these states will be greener and the environment cleaner, of course. But builders in these states will develop knowledge and experience with green buildings, a market for green products will be enhanced, and consumers will have more green products and buildings to choose from. In short, the benefits will move from the thought leader level to the grassroots level. At its best, lobbying and government outreach is a tool for educating thought leaders who can change policy, thereby transforming the world for the better.

Consumers Coming On Board

2008-10-28T16:17:00.004-04:00

Interesting post on Consumers Buying Into Sustainability
on Bulider Online. Builder Online reports that "energy efficiency" garnered an 88 percent favorability rating among consumers. This reflects, I believe, a growing opportunity for green buildings to command higher rents and be more robust in a declining real estate market.

Tackle Risk Early

2008-10-28T09:57:00.003-04:00

If the government had stepped in a bailed out foreclosing homeowners, would we be in the credit crisis we are in now? Nicholas Stern, a former British Treasury economist, notes that "inaction on emissions blamed for global warming could cause economic pain equal to the Great Depression."
http://www.enn.com/business/article/38498

We are still in a moment when regulation could curb global warming, but not for long. If we think this credit crisis is bad, global warming could be far more economically, as well as environmentally, devastating. Therefore, regulation of carbon, green building laws, etc. cannot get subsumed in short term "cost saving" measures.

An example of this short sighted behavior is being shown in King County, Washington, where $20/month incentives to county officials who bike or walk to work are being threatened. http://sustainable.bizjournals.com/green/King_County_bike-to-work_subsidy_under_fire.html The total cost for the subsidy--$37,000.

California Dreamin'

2008-10-22T09:49:00.002-04:00

California has been on the cutting edge of climate change regulation, including passing the first state-wide code for green building and a new measure to limit sprawl. http://www.jetsongreen.com/2008/10/california-find.html

I have discussed here before that regulation of environmental issues can have a positive benefit--http://greenlaw.blogspot.com/2007/09/regulation-it-really-works.html--and there has been much discussion on the campaign trail about the healing power of green jobs for the economy. The Berkeley Center for Energy, Resources and Economic Sustainability had a study out today which reveals that California's climate change regulation, and the accompanying reduction in energy use, has been very good for the economy. http://are.berkeley.edu/~dwrh/CERES_Web/index.html

New Green Risk Insurance Product

2008-10-21T11:10:00.000-04:00

The retail inland marine division of ACE USA has added green building endorsements to its builders risk product offering which should benefit developers, contractors, architects and owners. "The endorsements are designed to address customers' potential financial loss stemming from changes in environmental standards, repairs using green materials, additional debris-removal expenses, and loss of tax credits.

http://www.insurancejournal.com/news/national/2008/10/21/94835.htm

Insurance of this type should help to alleviate some of the risks associated with building green.

The death of ASHRAE 189?

2008-10-17T12:29:00.002-04:00

Buildinggreen.com had this post today stating that the ASHRAE/USGBC committee putting together the code-based version of LEED had been disbanded. http://www.buildinggreen.com/auth/article.cfm/2008/10/17/Uncertain-Future-for-ASHRAE-Standard-189/

I saw ASHRAE 189 as a mechanism for quashing the issue of incorporating LEED into regulations. Many people have voiced concerns over incorporating private standards, like LEED, into public law. This is, in my opinion, an ill-informed critique. The International Building Code is maintained by a private standards organization, the International Code Council, and is incorporated into almost every municipality's building code. I saw ASHRAE 189 as a similar model. In addition, ASHRAE 189 would have eliminated the legal risk to USGBC that the USGBC would be sued for not approving buildings quickly enough by automatically incorporating LEED standards into law without the need for approval of individual projects by USGBC. This is not good news for the regulated community.

There's No Such Thing As Clean Coal

2008-10-16T10:49:00.002-04:00

http://www.huffingtonpost.com/michael-brune/theres-no-such-thing-as-c_b_135103.html

Finally. Emperor has no clothes.

Interesting Green Leasing Post

2008-10-15T17:44:00.000-04:00

http://sustainable.bizjournals.com/green/Possibilities_to_think_over_when_negotiating_a_green_lease.html

Don't Know Much About Corporate Valuations...But I Do Know This

2008-10-15T17:27:00.004-04:00

Ok, so there is sometimes a great divide in law between the corporate folks (in my office they live on the 20th floor and I see them sometimes rushing around to the printer, whatever that is) and the lit/reg folks that I pal around with. But I do know enough about corporate law to know that a big McKinsey study on how climate change mitigation measures will effect corporate valuations going forward matters. So here is the link to the study--http://www.mckinseyquarterly.com/Corporate_Finance/Valuation/How_climate_change_could_affect_corporate_valuations_2223_abstract

In short, failing to mitigate climate change will decrease corporate valuation and shareholder value. Which could have serious risk implications for the managers and directors in charge of those organizations. Which is another type of potential green legal risk.

More on the Impact of The Financial Crisis

2008-10-14T12:52:00.003-04:00

It looks like Europe, long the leader in climate change regulation may be getting cold feet on adopting the regulations because ofits financial impact, the Wall Street Journal reports here--http://blogs.wsj.com/environmentalcapital/2008/10/13/changed-climate-meltdown-has-europe-backpedaling-on-climate-caps/.

This is very bad news--and as shortsighted as can be. All estimates of the cost of climate change indicate that we will be getting a bargain by addressing the issues now and not waiting until catastropic effects--Tufts estimated in 2006 that the cost of climate change in the US alone would be as great as US$74 trillion. ase.tufts.edu/gdae/Pubs/rp/Climate-CostsofInaction.pdf

I hope that US regulators in the next administration will be less short sighted, but I fear not.

More on Green Finance IN A Time of Crisis

2008-10-12T10:56:00.002-04:00

Interesting article this morning on green as a haven in times of financial crisis, and an analysis of the green investment market over at Resnet. http://www.natresnet.org/resblog/post.asp?iPostID=7053

Green Building Law--The Credit Crunch Edition

2008-10-10T10:18:00.003-04:00

What will the credit crunch mean for green building (and other green laws)? I don't know for sure, but I am willing to prognosticate a bit...

1. Some are saying that the carbon markets will suffer because they are too complicated and too nascent to survive an environment of increased investor skepticism. http://earth2tech.com/2008/10/10/will-the-stock-market-hurt-the-emissions-market/ My verdict--maybe. But if cap-and-trade is mandated, then the carbon markets will flourish.

2. Some are saying that the credit slowdown which is hurting the building market in general will have an even greater impact on green buildings.
Others, like McGraw Hill in their newly released report on Green Home Building (see article with conclusions here http://news.moneycentral.msn.com/ticker/article.aspx?Feed=PR&Date=20081007&ID=9241721&Symbol=MHP and purchase report here http://construction.ecnext.com/coms2/summary_0249-295182_ITM_analytics) conclude that green construction will be more resilient in a down market because of green buildings perception of greater quality and people's willingness to pay more for green construction. My verdict--building in general will slow down, but this may be a good time for municipalities to get their legislative houses in order in terms of drafting and passing sound green building legislation.

3. If the recent "green" bailout is any indication, green will still be a legislative priority. Congress tacked on renewing the tax incentives for solar and renewables onto the bailout bill last week. http://blog.wired.com/wiredscience/2008/10/bailout-bill-ri.html But, some communities may have trouble passing green building legislation that is perceived as costing more to build.

4. In the end, it will all come down to the election. If Obama wins, the environment will be a major priority. If McCain wins, look for incentives for "clean" coal and nuclear, but not much action on cap and trade (even though he claims to be in favor of it) because of the cost it will bring to corporations.

Scooped! Decision in AHRI v. City of Albequerque

2008-10-08T19:05:00.001-04:00

I've been working too hard lately on other projects, and Steve Del Percio over at Green Buildings NYC did a nice post on the decision in AHRI v. City of Albequerque. Bad news for green building legislating municipalities.

Steve's post is here--http://www.greenbuildingsnyc.com/2008/10/08/district-court-judge-grants-injunction-barring-enforcement-of-albuquerque-green-building-code-legislators-unaware-of-preemptive-federal-statutes/

Anals of Lesser Known Issues--Riparian Rights

2008-10-08T18:37:00.004-04:00

I have been reading a lot about offshore wind farms--see for example this article about wind mills off of Portland, http://greenwombat.blogs.fortune.cnn.com/2008/10/06/oregons-floating-wind-farm/ and this one about windmills being built on canals in England. http://www.treehugger.com/files/2008/10/100-megawatts-of-wind-turbines-along-british-canals.php Strikes me that some issues surrounding riparian rights may emerge from this new technology.

A riparian owner is one who owns property with water on it or on one of its boundaries. Riparian rights are the rights that owner has to the use or restrictions on others' use of that water. Riparian issues were very big in the late 19th century when factories were being built on watercourses, and the right to use the water to power factories needed to be allocated. See, e.g. this nifty 1891 book excerpt on riparian rights from Google books http://books.google.com/books?hl=en&id=0KcOAAAAYAAJ&dq=riparian+rights&printsec=frontcover&source=web&ots=Igne8AO5t-&sig=_AqoAnduMjRM-Q4Pn9okgLAZO-c&sa=X&oi=book_result&resnum=4&ct=result#PPP9,M1

In many instances, public entities (states, counties, etc.) have riparian rights. These rights may become very valuable if the water becomes desirable to develop as a wind farm. In other circumstances, the ownership may be private, perhaps inhibiting the development of a wind farm where it will be in the public good. This could cause a public entity to "take" the riparian right from the landowner to build a wind farm. Historically, riparian rights are generally not severable from the land to which the riparian course is attached. If, however, the water becomes a power source, should the riparian rights be severable, like mineral rights or oil leases?

City of Albuquerque Suit--UPDATE

2008-10-02T17:02:00.003-04:00

In July, I first wrote about the HVAC indistry associations suing the City of Albuquerque to invalidate Albuquerque's green building codes in one of the first instances of green building litigation. The HVAC plaintiffs filed a Motion for a Preliminary Injunction to prevent the City from enforcing the green building codes, and a hearing was held yesterday. I spoke with Doug Baker, attorney for the HVAC plaintiffs, who felt the hearing went well. His team of attorneys argued that Albuquerque should be preliminarily enjoined from enforcing the codes because they were preempted by Federal law, and that Albuquerque's attempts to amend the code to circumvent preemption were unsuccessful. Mr. Baker told me that the judge expects to rule on the preliminary injunction motion tomorrow. Stat tuned.

Green Building Law Potpourri

2008-10-02T16:05:00.002-04:00

There are three notable articles on various sites around the blogosphere addressing green building legal issues--

1. Greening of the Bailout Bill--There was a great article over at Earth2Tech (I love those guys) on the greening of the financial bailout--http://earth2tech.com/2008/10/01/senate-passes-greener-financial-bailout/

2. Will Cap-and-trade work--Interesting perspective that cap-and-trade won't work to curb greenhouse gases soon enough over the at Green Skeptic http://greenskeptic.blogspot.com/2008/10/steve-rayner-dear-mr-president-deal.html

3. Southern Builders v. Shaw Development series on Green Building Law Update--Chris Cheathem has a nice series on the Southern Builders v. Shaw Development case in which Shaw Development, L.L.C. (Shaw Development) filed a counter-complaint against Southern Builders, Inc. (Southern Builders) in the Circuit Court of Somerset County, Maryland arising from, in part, the projects failure to achieve LEED Silver certification. http://www.greenbuildinglawupdate.com/2008/10/articles/legal-developments/southern-builders-v-shaw-development-the-most-important-part/

What does all of this mean? A lot of legal action--litigation, corporate and regulatory work--ahead.

Land Use Regulation Necessary For Green

2008-09-29T15:37:00.002-04:00

Sustainlane has determined that Portland, OR is the greenest city. http://www.sustainlane.com/us-city-rankings/ Why? Because of the progressive land use restrictions and urban growth boundaries established in the 1970s. "That’s "City-planners in Portland have been thinking green since the 70s, when the rest of the country was still embracing the strip mall. The city enacted strict land-use policies, implementing an urban growth boundary, requiring density, and setting a strong precedent for sustainable development." In addition to "green building" regulations, strong land use regulation that limits sprawling suburban development is necessary to make communities green, as is support for effective infrastructure and public transit. Without these supports for green buildings, all that is going to be developed is more auto-dependent green sprawl.

Ninth Time Is The Charm--Senate passes renewable energy tax package

2008-09-24T11:28:00.003-04:00

Avoiding an end of year sunset of renewable energy tax credits, the senate finally passed (after nine tries) a renewable energy tax package. Wind power tax credits have been extended for one year; other types of renewable energy such as small-scale hydro or tidal power have been extended for two years. Solar tax credits for businesses and residential installations have been extended for eight years. The entire package amounts to $18 billion in tax credits.
http://www.treehugger.com/files/2008/09/renewable-energy-tax-incentives-pass-in-senate.php. Bill is available in full--http://thomas.loc.gov/cgi-bin/bdquery/z?d110:HR06049:

Today, Chairman of the House Ways and Means Committee, Charles Rangel (D-NY)introduced a bill to offset the cost of the incentives in the Senate bill, which includes a modified version of the previously proposed repeal of the tax exemption for oil and gas producers. In the modified version, the bill would freeze the domestic production deduction for income of taxpayers that is with respect to oil, natural gas or any primary product thereof at 6% (which is current law). Absent this action, this deduction would increase to 9% in 2010. This is a scaled-back version of the provision proposing outright repeal of section 199 with respect to all oil, natural gas or any primary product thereof. http://waysandmeans.house.gov/news.asp?formmode=release&id=691

Event Alert--RGGI Greenhouse Gas Auction TOMORROW

2008-09-24T11:24:00.001-04:00

Just wanted to alert my readers that the Regional Greenhouse Gas Initiative, RGGI ("Reggie") will begin auctioning greenhouse gas allowances tomorrow. http://www.rggi.org/about

The States Taketh, The Feds Giveth Away

2008-09-24T11:02:00.002-04:00

I have written extensively here on the federalism issues associated with regulating green buildings and climate change in general, which I believe is going to be a major factor in whether the United States can effectively manage climate change. In another example of the states regulating and the feds deregulating (or actually just preventing climate change laws from taking effect), Delaware made revisions to its state implementation plan under the Clean Air Act, making carbon dioxide a regulated pollutant. http://ehscenter.bna.com/PIC2/ehs.nsf/id/BNAP-7JEFLD EPA Region 3 approved Delaware's SIP with the carbon dioxide regulation in place. Now, the EPA is reconsidering the approval of Delaware's SIP.

Federalism--Green Building Law Quagmire?

2008-09-17T13:10:00.003-04:00

Federalism, one of the founding principals of American democracy by which states (and through the states, cities, counties and municipalities) and the Federal government have there own spheres of governance, may ultimately strangle effective green legislation.

I wrote on the blog earlier this summer about a suit filed by HVAC indsutry associations challenging Albuquerque's green building code claiming that the energy requirements for the HVAC equipment was preempted (i.e. already regulated) by Federal law. http://greenlaw.blogspot.com/2008/07/green-building-litigation-hits-in-new.html

Yesterday, "Following months of debate and squabbling, the House of Representatives just passed a bill that could open America’s coasts to offshore drilling, as well as extend the tax credits for clean energy and offer other incentives for clean power and green transportation." http://earth2tech.com/2008/09/16/house-approves-offshore-drilling-extends-clean-energy-credits/ One of the complaints Earth2Tech noted that the Republicans have voiced about the bill is that "the bill also creates a federal renewable portfolio standard that would require 15 percent of the nation’s electricity to be generated from renewable sources. Going beyond states’ mandates is viewed as a form of “big government” with which Republicans disagree."

In short, the Republicans are saying that the Federal government shouldn't pass sustainability regulations, and certain interest groups are suing to prevent states (and through them, municipalities) from regulating, it could create a quagmire in which no government entity is able to effectively pass sustainability regulations.

Oregon Building Opts For Green Globes Because of Cost

2008-09-12T10:59:00.002-04:00

As a followup to an analysis of LEED v. Green Globes posted on Green Building Law, I noted that an Oregon building which had originally been slated to be LEED certified chose Green Globes because of the additional cost of LEED certification. http://www.sustainableindustries.com/greenbuilding/27880834.html

The Threat of A "God Awful Solar Heater" to $300,000 Landscaping

2008-09-12T10:47:00.002-04:00

People in the Hamptons are not like you and me. This week Southhampton voted into law a series of green regulations mandating environmental requirements for homeowners. One of the criticisms of the regulations was the following:

“For the existing homeowner this is nothing more than a tax,” Bergenthal said. “I spent $300,000 for landscaping. Why should I have to look at a God-awful solar heating system.”

http://www.hamptons.com/detail.ihtml?id=4811&apid=9775&sid=27&cid=54&hm=1&iv=1&townflag=

Granted, given the current state of the economy and the threat of global warming, you may not be feeling much sympathy for Mr. Bergenthal and his $300,000 landscaping, but his criticism of the Southhampton law does bring into high relief the ingrained animosity Americans have towards having their private property regulated--especially their homes. I believe that regulation of government and commercial green buildings will be accepted much more easily (although suits in NM and FL are already challenging some laws) than will regulations targeted at homeowners.

A Bird In The Hand--Anticipating The Value Of Carbon Offset Credits

2008-09-03T16:40:00.002-04:00

I read an article a few weeks ago on Europeans snapping up US carbon offset credits on the cheap. See http://earth2tech.com/2008/08/18/us-cap-and-trade-launch-highlights-hurdles/ In short, because the United States does not currently have a mandatory carbon offset program, US carbon offsets purchased on the Chicago Climate Exchange are far cheaper than the mandatory carbon offsets for sale on the European climate market. The theory is, however, that soon the United States will regulate carbon and establish a mandatory cap-and-trade system, and the credits will increase in value.

So...you build a green building now, and have the less valuable carbon offsets which might be worth something more in the future (or to purchasers in Europe). Those ownership rights need to be considered. How should they be valued? At the current US price? Some future estimated value? Who owns them? The builder of the building or the lessee? See an interesting analysis of this situation at http://www.lawofrenewableenergy.com/2008/08/articles/climate-change/when-is-a-green-building-lease-like-a-power-purchase-agreement-avoiding-deja-vu-all-over-again/

In my opinion, the carbon offsets should be valued at the current Chicago Climate Exchange value. Anything else is simply too speculative. However, they should be treated as if they have value, because they do. Therefore, the allocation of the carbon offsets should be treated as an asset in the negotiation of any green project, with ownership rights as clearly established as the physical asset. Legal draftsmen, sharpen your pencils...

Green Challange to Green Law

2008-08-21T10:45:00.000-04:00

The Sun-Sentinal in Florida had this article on the Mayor of Boynton Beach challenging the Florida Governor's mandate for public buildings to go green based on increased cost to taxpayers--http://weblogs.sun-sentinel.com/news/politics/palm/blog/2008/08/going_green_in_boynton_beach_c.html

This is an interesting front--public fisc vs. public health. Which will win out? What is the real "public good"?

Update on Green Law Around the Blogosphere

2008-08-21T10:29:00.001-04:00

This week has seen several interesting Green Law posts around the blogosphere:

Earth2Tech had a report on Bill Clinton's speech outlining 10 things the government can do to promote green power--http://earth2tech.com/2008/08/18/bill-clinton-10-things-the-us-government-should-do-for-clean-power/

My friend Stephen Del Percio at greenbuildingsnyc had an excellent post on green building litigation brought in Maryland--http://www.greenbuildingsnyc.com/2008/08/20/the-anatomy-of-americas-first-green-building-litigation/

And Worldchanging had one on Calfornia carbon shares for individual citizens.
http://www.worldchanging.com/archives/008366.html

New Tool To Tackle Green Sprawl

2008-08-21T10:21:00.001-04:00

ICLEI-Local Governments for Sustainability (ICLEI) (a membership association of local governments committed to advancing climate protection and sustainable development) is developing a new tool to rate the sustainability of communities, called the Star Community Index. http://www.iclei-usa.org/programs/sustainability/star-community-index

This, along with LEED for Neighborhoods, and the changes to LEED 2009 which will incorporate more sustainable site mandates are good steps towards tackling "green sprawl"--building green buildings on unsustainable sites, which has, to date, been a problem with the LEED system.

Green Consumer Resource

2008-08-06T08:34:00.002-04:00

The Green Perspective http://thegreenperspective.com/ has recently launched with a bunch of fabulous green gift baskets. Check it out!

List of Green Regulations

2008-08-04T10:49:00.001-04:00

I found a neat resource from the AIA trust--a list with links to all nationwide green building regulations. http://www.theaiatrust.com/goinggreen/2008GreenPaperAppendixA_CurrentSustainabilityLaws.doc

Inspiring Lunch with E3 Bank

2008-08-01T16:44:00.002-04:00

Today I had the privilege of having lunch with Frank Baldassarre (President/CEO) and Bill DeFalco (EVP Chief Lending Officer), two of the founders of Philly's own sustainable financial institution, E3 bank. http://www.e3bank.com/

Bill and Frank were nice enough to tell me all about the E3 project so that I could share it with the readers of Green Building Law. And a very exciting project it is--Bill and Frank and the members of the E3 team are establishing a financial institution which not only invests in sustainable projects, but is itself a "triple bottom line" entity. E3, by the way, stands for "Building Sustainable Enterprise, Protecting the Environment, and Investing in Social Equity".

Frank has been in banking--traditional banking--for 27 years, and until two years ago, he had never heard of LEED. Once he was exposed to the green building world, though, it was like "having his eyes opened." he wondered why more people weren't building green and getting involved. "The lack of financial resources and instruments was a big reason people weren't doing it. We are setting out to change that."

Frank sees the opportunity for financial institutions to be a catalyst for change. "I see E3 not only as a resource, but as a facilitator of change on a large scale. Financial institutions have the ability to make change on a large scale. It will be hard to undo the damage to the environment without getting a lot of people involved."

E3 will offer financial products for sustainable projects, like energy efficient constuction and renovation. The instruments will be designed to "continually encourage people to take the next step in sustainability." For example, by providing discounted loan rates for projects which pursue higher sustainable goals, like LEED Platinum ratings, and using carbon offsets as loan collateral. In addition, E3 will provide value added services to their clients, like expertise in leveraging E3 funds with private and public financing sources.

E3 will also offer a deep green savings account where the money invested will go towards the greenest projects. According to Frank, "When you deposit your dollar, it will match your values."

Bill also mentioned the possibility of providing energy audit services to identify the best use of E3 funds.

Bill and Frank are veterans of the banking industry, but they have a lot of green experience behind the E3 project. Sandy Wiggins, the immediate past chair of the USGBC, is the Chairman of the Board of Directors of E3, and Jim Lutz, Senior Vice President of Development for Liberty Property Trust, David Berry, Co-founder of the Sustainable Water Resources Roundtable, Jackie O’Neil, winner of a 2007 Philadelphia Sustainability Award, Joyce M. Ferris, Founder and Managing Partner of Blue Hill Partners LLC, Judy Wicks, Owner and Founder of Philadelphia’s 25-year-old White Dog Cafe, and Gavin Kerr, an experienced health care veteran are all board members.

Throughout lunch, Bill and Frank expressed their optimism for how E3 can change the financial industry and the world by aligning it to the triple bottom line. Frank noted that the single bottom line had not been working well lately for the financial industry, giving the example of the sub-prime lending debacle. If the financial instutitions had taken into consideration the social equity of what they were doing, perhaps it would not have happened.

As Frank says, "The more you learn, the more responsible you become for your actions."

Washington Green Building Benchmarking Law

2008-07-24T14:57:00.003-04:00

On Tuesday, Washington DC Council unanimously passed The Clean and Affordable Energy Act of 2008, which includes a mandate for benchmarking buildings' energy efficiency via the Energy Star program.

http://www.costar.com/News/Article.aspx?id=F61C029F278482B155D050AA2DCFCB56&ref=1&src=rss

Liberty Finds Benefits in Building Green

2008-07-24T14:35:00.002-04:00

According to Craig Cope, a local vice president for developer Liberty Property Trust,
"The additional cost [of building green] is certainly more than paid back in terms of quicker renting, keeping tenants longer, charging higher rents," he said. "Every building we do from here on out will be certified." For the full article, see http://hamptonroads.com/2008/07/green-buildings-are-going-so-are-prices.

Read This

2008-07-19T20:22:00.001-04:00

Bob Herbert's column in the Times today says what needs to be said about Al Gore's speech this week challanging us to meet all our energy needs with renewarble fuels within ten years. Yes we can--http://www.nytimes.com/2008/07/19/opinion/19herbert.html?_r=1&ref=opinion&oref=slogin

Albquerque Green Building Litigation--Column on Greenerbuildings.com

2008-07-11T19:19:00.003-04:00

I wrote an extended column on the Albuquerque green building litigation which was published by our friends at greenerbuildings.com.

Please read it here--http://greenerbuildings.com/column/2008/07/11/open-floodgates-the-era-green-building-litigation

Green Building Litigation Hits In New Mexico

2008-07-10T10:36:00.003-04:00

Well, I've been writing for a while that the green building litigation wave would hit, and it has. A coalitiion of industry groups and local companies has filed a federal lawsuit claiming that Albuquerque's green building code is pre-empted by federal law. The suit claims, in essence, that Albuquerque's code has set energy requirements for certain appliances like air conditioners "that are already covered in federal law and Energy Department regulations". http://www.abqjournal.com/news/metro/080732metro07-08-08.htm

I am currently gathering intel on the suit and will post more later.

PA Alert

2008-07-10T10:34:00.001-04:00

Green Building Alliance (GBA) announced a total of $140,000 in Product Innovation Grants for three projects that seek to develop and introduce new and enhanced green building products. http://www.tristateobserver.com/modules.php?op=modload&name=News&file=article&sid=10238

Doing Well By Doing Good--Cherokee Investments

2008-07-10T10:24:00.003-04:00

Cherokee Investments, which is "a private equity firm specializing in brownfield cleanup and sustainable redevelopment", released a report on its sustainable projects yesterday, available at http://www.cherokeefund.com/ (article at http://www.marketwatch.com/news/story/cherokee-report-highlights-its-investments/story.aspx?guid=%7BD55BC51C-630D-4C15-B3AC-A01C7D4D53A9%7D&dist=hppr).

Although the report does not provide hard numbers on their projects, it does highlight some of the community benefits of their projects--like transit oriented development and provide a succinct set of ideas for pursuing sustainability through real estate development.

State of Climate Change Law

2008-07-06T20:13:00.003-04:00

Interesting article on the status of laywers pursuing climate change practices.

http://www.dailyreportonline.com/Editorial/News/singleEdit.asp?individual_SQL=9/21/2007@16763_Public_.htm

The article notes that there really aren't any cases yet. I believe that the first cases will come in the green building area, because of the myriad of local laws that have been springing up in recent years. The laws have been passed quickly, and in many cases mandate the achievement of LEED or LEED-equivalent standards.

Fireman's Fund Starts Green Home Insurance

2008-07-06T20:08:00.001-04:00

Fireman's Fund announced it would start to sell a product which would allow homeowners to rebuild green. See http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/07/05/BUTT11JJOU.DTL

Great Resource--AIA List of Green Incentives

2008-07-02T12:25:00.002-04:00

I have discussed the DSIRE website here before, but the AIA has compiled a report on all sorts of incentives for green building which is available here http://www.aia.org/SiteObjects/files/LLgreenincentives(5-19).pdf.

Washington Green School Fails To Live Up To Promise

2008-07-01T10:31:00.002-04:00

An interesting article on the Washington Policy Center Blog about a green school that has failed to live up to its promises of reduced absenteeism and higher test scores. http://washingtonpolicyblog.typepad.com/washington_policy_center_/2008/06/another-green-s.html

This is exactly the type of situation which may lead to liability for the professionals involved in the project. Were representations and warranties made regarding the benefits of the green building? By whom? Who is responsible if the building fails to live up to those warranties of performance?

Guest Column--Overview of LEED and Green Globes Rating System

2008-06-30T20:48:00.003-04:00

By: Margaret McInerney

Overview

As the green building market increases, a growing number of states, cities and municipalities have passed green building legislation. The level of enforcement and certification varies greatly, but most green building legislation references a green building rating system. The two most common green building rating systems in the United States are the Leadership in Energy and Environmental Design (LEED) Green Building Rating SystemTM from United States Green Building CouncilTM (USGBC) and the Green GlobesTM rating system from the Green Building InitiativeTM (GBI).

Both rating systems aim to improve the built environment and emphasize design and construction practices that reduce energy consumption and water use, improve indoor air quality and minimize the impact on the natural environment. These rating systems have many similarities but a few key differences. Both LEED and Green Globes rating systems are structured similarly by awarding four levels of certification and focusing on common aspects of green building design. The LEED rating system is more expensive, but has a more balanced and comprehensive structure. On the other hand, Green Globes is user-friendly and emphasizes unique green building practices. It does not, however, necessarily demand the best green building practices.

Green building policy leaders argue over the extent of these differences when determining the appropriate rating system to reference in green building legislation. There was a recent budget debate in Virginia over whether the Green Globes rating systems should be referenced as an acceptable green building rating system in addition to the LEED rating system.
It should be noted the comparisons in this article consider USGBC’s LEED for New Construction version 2.2 (LEED-NCv.2.2) rating system and GBI’s Commercial Green Building Green Globes v.1 rating system. A new version of the LEED rating system (LEED 2009 or LEED v.3) was released for public comment in May 2008. The requirements of the LEED 2009 rating system are not considered in this article unless noted.

Brief History of Green Building Rating Systems

The first environmental certification system was created in 1990 in the United Kingdom, called the Building Research Establishment Environmental Assessment Method (BREEAM). In 1998, the USGBC introduced the LEED green building rating system, based substantially on the BREEAM rating system. The Green Globes rating system was adapted from the Canadian version of BREEAM and was released by the Green Building Initiative in 2005. There are many other available rating systems worldwide. However, LEED and Green Globes are the most common in the United States.

Today, USGBC has rating systems for new construction, existing buildings, core and shell, commercial interiors, homes, schools, retail, healthcare and neighborhood development. GBI has a rating system for commercial buildings which includes new construction buildings and existing buildings. In addition, GBI partners with the National Association of Home Builders to promote green homes.

LEED and Green Globes Similarities

The LEED and Green Globes rating systems are very similar in structure. Both systems have four levels of achievement. LEED projects can achieve the following four certifications (1) certified, (2) silver, (3) gold or (4) platinum. Similarly, Green Globes projects can achieve either 1, 2, 3, or 4 globes. Both LEED and Green Globes share a common set of green building design practices. There are six focus areas for LEED and seven for Green Globes, but the focus areas are similar in many respects as shown below.

LEED-NCv2.2 [1]
Sustainable sites (14 Points, 20%)
Water efficiency (5 Pts, 7%)
Energy and atmosphere (17 Pts, 25%)
Materials and resources (13 Pts, 19%)
Indoor environmental quality (15 Pts, 22%)
Innovation and Design (5 Pts, 7%)

GREEN GLOBES v.1 [2]
Site (115 Pts, 11.5%)
Water (100 Pts, 10%)
Energy (360 Pts, 36%)
Resources (100 Pts, 10%)
Indoor environment (200 Pts, 20%)
Emissions, effluents and other impacts (75 Pts, 7.5%)
Project management (50 Pts, 5%)
[1] The United States Green Building Council, www.usgbc.org.
[2] The Green Building Initiative, www.thegbi.org.

Both LEED and Green Globes place an emphasis on energy use. Of the sixty-nine allowable points for LEED, twenty-five percent can be achieved for advanced energy practices and thirty-six percent of the one thousand allowable points for Green Globes can be achieved in the energy category. The common energy criteria for LEED and Green Globes are building energy consumption, proper installation of energy efficient technologies, and on-site renewable energy resources.

The LEED rating system has a balanced point distribution, with four out of the six categories contributing about twenty to twenty-five percent of the potential points. While Green Globes emphasizes energy (over a third of the potential points), site and material resources only account for approximately ten percent of the rating system. This is a potential weakness in the Green Globes system. While reducing a building’s energy consumption is very important, a certified green building should not be constructed without significant consideration to its site and surrounding area.

LEED and Green Globes Differences

The two main criticisms of early versions of LEED were that it was too complex and too expensive. When USGBC first introduced the LEED rating system, the application for certification was long and complicated. All certification forms had to be submitted by mail. This was a contrast to Green Globes’s user-friendly online certification process that any building team member could complete. The newer versions of the LEED rating system are online; however, the rating system is still complicated and each building team member is responsible for different documentation. LEED registration and certification are still more expensive than Green Globes. LEED registration costs approximately $900-$3000 and certification costs approximately $1,875 to $20,000. Green Globes offers a preliminary self-assessment for $500 dollars and the certification is around $3,000-$6,000.

Another criticism of the LEED rating system is that LEED-NCv2.2 does not address life-cycle analysis. Life cycle analysis (LCA) assesses the complete impact of a building on the environment. LCA analyzes a building’s construction materials from pre-manufacturing to post-consumption. For example, the LCA of a building’s insulation would consider the manufacturer’s location, the resources needed to make the insulation and the disposal/recycling of the insulation when the building is torn down. In the current LEED rating system two buildings could achieve a sliver certification, but have very different impacts on the environment when considering life cycle analysis. USGBC has recognized this deficiency and addresses LCA in its latest rating system, LEED 2009. Green Globes incorporates a life-cycle analysis in its current rating system.
The main criticism of Green Globes is that it does not require a minimum performance level. Therefore it is relatively easy to attain the one globe certification level (350 points out of 1000 points). In contrast, LEED requires minimum performance levels in energy use, erosion control, and indoor air quality. For example, LEED requires that all certified projects create an Erosion and Sedimentation Control Plan. Since this plan is required it does not earn any certification points. However, Green Globes awards nine points for a similar erosion control plan. Green Globes does award points for specific best practices that are unique to its rating systems such as, integrating pest management, composting organic waste, monitoring carbon monoxide, and maintaining acoustic comfort.

Another significant difference between the two rating systems is their energy performance measurements. Most LEED certified projects measure energy performance against the ASHRAE/IESNA Standard 90.1-2004 which sets a baseline for building energy performance. LEED points are awarded if the building reduces energy consumption 20% to 60% compared to the standard’s baseline. However, Green Globes projects are awarded points for scores of 75 or better from the Environmental Protection Agency (EPA) Energy Performance Rating. EPA’s rating system compares the project to other similar buildings nationwide. For example, a score of 75 in the EPA Energy Performance Rating system means that the project performs better than 75% of the buildings in the U.S.

Builders have different views which rating system most effectively measures energy performance. The ASHRAE 90.1 standard is the industry accepted standard for building performance. Based on performance modeling, LEED certified buildings save approximately 25-35% on average compared to the ASHRAE 90.1 baseline standard. However, there is still a discrepancy between predicted-modeled energy performance and actual-design energy performance. While some buildings perform better than modeled a significant number perform worse. A number of LEED certified buildings do not meet the Green Globes standard of 75 from the EPA Energy Performance Rating system. In contrast, the EPA Energy Performance Rating system only awards certification to the top twenty-five percent of buildings and does not set a minimum performance level or a baseline for improvement. By using the EPA Energy Performance Rating system, Green Globes is not providing incentives to improve the performance of buildings each year.

Conclusion

The USGBC’s LEED rating system and the GBI’s Green Globes rating system have some differences. However, they share a common core of green building design practices. Both rating systems offer unique benefits and promote good building practices. Referencing the LEED rating system in government legislation will ensure minimum energy performance, good construction practices, reasonable indoor air quality, and basic building commissioning. However, for legislation to completely disregard the Green Globes rating system would ignore a number of good building practices, such as using the EPA Energy Star Performance rating system and having a user-friendly, less expensive incentive for building green. Governments should adopt strong green building legislation that encourages the best green building practices and it may be premature to limit green building certification to only one rating system.

Margaret McInerney is a LEED® Accredited Profession and is a graduate of the University of Virginia School of Engineering and Applied Science. She currently is a Senior Energy Consultant at Navigant Consulting Inc. in Washington, DC. The views expressed in this article are those of the author only and not those of any other company or organization.

Obama v. McCain--No Real Contest On The Environment

2008-06-26T16:18:00.003-04:00

The past couple of posts have focused on the presidential campaigns, and their proposed energy/climate change policies. See Obama--http://www.barackobama.com/issues/energy/, and McCain http://www.johnmccain.com/Informing/Issues/da151a1c-733a-4dc1-9cd3-f9ca5caba1de.htm.

Both candidates propose a cap-and-trade system for greenhouse gases. Obama proposes a cap-and-trade program to reducre greenhouse gases to 80 percent below 1990 levels by 2050. McCain's cap-and-trade program would reduce greenhouse gases to 60 percent below 1990 levels by 2050.

Both candidates also make commitments to research, but very differently structured. Obama has committed to investing $150 billion in clean energy and related efforts, McCain has committed to devoting two billion dollars each year, until 2024, to clean-coal research, development, and deployment, and a prize of 300 million dollars to the creator of a battery package of a size, capacity, cost, and power far surpassing existing technology.

In terms of new sources of fuel, McCain supports drilling f0r oil off America's shores, and building 45 new nuclear reactors by 2030. Obama does not support offshore drilling, and said he wouldn't rule out expanding nuclear power, but he would first require an acceptable way of dealing with the radioactive waste that results.

Obama has made a large place for green building initiatives in his plan. Obama has said he will establish a goal of making all new buildings carbon neutral, or produce zero emissions, by 2030. He has also commited to establishing a national goal of improving new building efficiency by 50 percent and existing building efficiency by 25 percent over the next decade and creating a competitive grant program to award those states and localities that take the first steps to implement new building codes that prioritize energy efficiency.

McCain says that his administration will "the penalties will assure compliance" with fuel standards, whereas Obama will double fuel economy standards within 18 years.

In terms of their proposed solutions, there is no real contest. McCain's plan is essentially support for so-called clean coal and nuclear power dressed up as an innovative energy plan. There is nothing in his plan to support green building. He makes no commitments to further increase fuel economy standards. In essence, McCain is not taking the bull of climate change and oil dependence on at all.

Obama's policy does a better job of working most of the angles of the problem, and makes proposals for addressing them. However, Obama will have to engage a lot of political will to make his reforms happen. Obama does not say how he will overcome the resistance to most of his plans.

Sometimes Totalitarianism Looks Appealing

2008-06-24T18:42:00.002-04:00

On Friday, China announced it would " ban more than one million cars from the streets during the Olympics in an effort to curb pollution and ease traffic gridlock." Once the Chinese government decided it wanted to do something about the wretched pollution in Beijing, it simply acted.

This type of massive action in response to an environmental problem is something a democracy has trouble with. For example, the New York state assembly failed to pass congestion pricing for New York City to ease traffic and pollution earlier this year. http://www.edf.org/article.cfm?contentID=6618

Similarly, US politicians in power and candidates have failed to put forward a comprehensive environmental plan which would address climate change in a significant way. Although I do appreciate democracy's many virtues, I sometimes wish that we had a government which could implement major change on the environmental front simply by deciding to act.

Lead or Leave?

2008-06-23T12:42:00.003-04:00

I know I'm supposed to be on maternity leave, but Tom Freidman's Sunday opinion column on Bush's lack of leadership on the oil front--essentially he says that Bush's new energy bill is just another hit at the oil crack pipe--http://www.nytimes.com/2008/06/22/opinion/22friedman.html--and the end of the Democratic primary got me to thinking (again) about the lack of leadership on the environmental front.

Freidman excoriates Bush for his energy plan, entitling the column Mr. Bush, Lead or Leave. And Mr. Bush will not lead (that we have 7 years of history to show), but he will inevitably leave in January. Then what? I posit that the environmental stewardship exhibited by the candidates for president have been an inch deep and a mile wide, particularly when it comes to presenting a comprehensive plan which incorporates green building incentives with energy policy and infrastructure development.

McCain and Clinton both fell for the summer vacation from the gas tax gambit. The miniscule savings for the individual consumer is far outweighed by the collective damage of removing a funding source for, among other things, public transportation.

In addition, despite his attempts to distance himself from Bush on the environment and position himself as an environmental steward, McCain has supported Bush's plan to drill for oil offshore in sensitive waters, http://www.washingtonpost.com/wp-dyn/content/article/2008/06/16/AR2008061602731.html
and scored zero out of 100 on the latest League of Conservation Voters Scorecard which rates elected officials on their votes in the most recent Congress. http://www.lcv.org/scorecard/.

Obama has made the right noises about the environment, but still lacks a comprehensive plan to address the environmental trifecta of energy, building and infrastructure.

So, the choice is not lead or leave--but simply lead. The electorate must lead by calling for a comprehensive environmental plan from the next resident of the oval office.

Maternity Leave

2008-05-15T19:04:00.001-04:00

Green Building Law Will Be On Maternity Leave Through September 2008.

The Value of Density

2008-03-11T10:14:00.003-04:00

Two articles this morning brought to mind the the classic urban theory that the density of urban environments creates cross-pollination and agglomeration benefits. GreenBuildingsNYC had an article about four closely located green businesses in New York City's Lower East Side http://www.greenbuildingsnyc.com/2008/03/05/the-lower-east-side-nyc%e2%80%99s-emerging-green-retail-district/ and another about a proposed green industrial park http://www.greenbuildingsnyc.com/2008/02/29/new-york%e2%80%99s-first-green-industrial-park-breaks-ground-on-long-island/ .

Essentially, the argument goes like this--cities are places where people are densely packed together. As a result of the clustering of people and businesses, innovation increases and there is a benefit in human capital externalities (ie more businesses, more jobs, more money, etc.). If it all seems a bit esoteric, think about fashion. You can get a lot more ideas about what to wear to work on the subway in New York City than alone in your car on a suburban commute.

The same concept should work with green businesses and green building--the more of these entities grow up in a small geographic region, the better they will be able to feed off one another and innovate. This is a good argument for local government incentives to stimulate green building and businesses. One green building is good, but a cluster of greeen buildings with workers in green businesses will foster more carpools, more sharing of ideas, more emulation--in short more innovation which will lead to the afforementioned human capital externalities. With the growing concerns over a faltering economy, fostering dense clusters of green innovation is one way to combat the tide.

It's Economic to Build Green

2008-02-04T16:21:00.000-05:00

Good article in the Boston Herald--http://www.bostonherald.com/entertainment/lifestyle/view.bg?articleid=1069349

Haste Makes Waste--Avoiding Unintended Consequences

2008-01-21T14:33:00.000-05:00

My Sunday perusal of the New York Times uncovered a very nice piece on the unintended consequences of legislation brought to you by the same guys who wrote Freakonomics, available here http://www.nytimes.com/2008/01/20/magazine/20wwln-freak-t.html?_r=1&ref=magazine&oref=slogin. The gist of their argument is that beneficial legislation often as the unintended consequence of deterring the very action the legislation was designed to provide--like the Americans with Disabilities Act reducing employers hiring of disabled workers.

The EPA and the Energy Information Administration (EIA) published analyses of Senators Arlen Specter (R-PA) and Jeff Bingaman’s (D-NM) proposed “Low Carbon Economy Act of 2007″ (S. 1766), and declared that the impact on economic growth and prices would be “modest.” Full articles available at Sustainablog, here http://sustainablog.org/2008/01/21/analyses-finds-law-would-cut-carbon-with-modest-impact-on-economy/.

What the bill and the analysis by the EPA and EIA fail to take into consideration is that the reliance of the Low Carbon Economy Act on carbon recapture and nuclear power has the potential to cause vast unintended consequences for the environment and for the economy. For example, a nuclear plant meltdown would have untold environmental cost and economic cost. Carbon capture technology can extend the use of coal fired power plants and the development of new coal fired power plants when such plants might otherwise be replaced with more sustainable forms of energy.

Similarly, green building legislation which is hastily drafted and passed has had embarrassing and counterproductive results. For example, the Las Vegas green building tax cut that threatened such a strong impact on state tax revenue that it had to be hastily rescinded. http://greenlaw.blogspot.com/2007/07/what-happens-in-las-vegas.html

For legislation to be successful in promoting positive environmental change, legislators need to look beyond the obvious and consider the unintended consequences of their actions. One way of doing so is to correctly articulate the desired outcome, and to ensure that the legislation works to promote that goal.

For example, the stated goal of the Low Carbon Economy Act is to "To reduce greenhouse gas emissions from the production and use of energy, and for other purposes." Is this really an accurate assessment of the purpose of the legislation? The purpose was more likely to preserve the environment for future generations by reducing greenhouse gas emissions. Using nuclear energy and coal will reduce greenhouse gas emissions, but it will not necessarily preserve the environment for future generations by doing so. Therefore, the first step to strong beneficial legislation which avoids unintended consequences is to articulate a valid purpose and confirm that the mechanics of the legislation works to positively promote the end goal.

Making 80% of your progress on 20% of your problems

2007-12-30T13:13:00.000-05:00

As I look towards 2008, I have been reflecting on the importance of the green building movement--where are we, where are we going. There is no question that buildings contribute to environmental damage--the U.S. Environmental Protection Agency reports that up to 48 percent of the greenhouse gas emissions contributing to global climate change are a result of building construction and maintenance projects. In addition, there has obviously been a lot of growth in the Green Building sector--for example, the GreenBuild conference in Chicago had 18,000 attendees, up from 4,200 just five years ago, and some estimates put the growth of LEED-registered and LEED-certified green building projects at rates approaching 70-80% year-over-year. A new study from the American Institute of Architects (AIA) found that since 2003, the number of American cities with green building programs has increased more than 400%.

However, public transit cuts in cities like Chicago, Philadelphia and others threaten to break down essential components of sustainable development. As recently as November, the Bush administration reiterated its opposition to the 1997 Kyoto Protocol, saying that it would damage the U.S. economy. Energy bills at the state and federal levels failed to implement real changes to our energy consumption infrastructure.

Based on the theory, therefore, that you make 80% of your progress on 20% of your problems, I recommend the following areas of focus for the coming year:

1. Integration of green building standards into municipal codes--As I have stated on the blog before, I believe that green building practices need to be like requirements for fire safety--an integral part of the regulaiton that municpalities provide. The completion of the ASHRAE/USGBC/IESNA Standard 189 code project will hopefully provide a set of materials which can be easily integrated into municipal codes.

2. National leadership on public transportation--Without steady and reliable sources of funding and commitment to public transportation, building and growing sustainable development will be very difficult. National figures, including the presidential candidates, need to provide clear, coherent and strong leadership on this issue in the coming year.

3. Acceptance of international climate change protocols--The environment is a global issue which requires a global agenda. The United States needs not just to join, but to lead the world in pursuing an environmental agenda.

Here's to a Happy and Green New Year!

Tom Freidman--Is anyone listening?

2007-12-16T13:08:00.000-05:00

Tom Freidman's column in today's NY Times is entitled "It's Too Late For Later"--http://www.nytimes.com/2007/12/16/opinion/16friedman.html?hp. Based on the Energy bills passed this week (see my previous post), our government is not listening.

Does anyone wonder--What are we still doing passing marginal energy bills?

2007-12-16T12:33:00.000-05:00

There have been two energy bills passed last Thursday which have caught my attention. First, of course, is the Senate Energy Bill which passed 86-8 (see the nice summary article in Forbes here http://www.forbes.com/business/energy/2007/12/13/energy-senate-bill-biz-wash-cx_bw_1213bizenergy.html), and the Senate of my home state of Pennsylvania passed its version of Governor Ed Rendell's Energy Bill 44-5 (Philadelphia Inquirer article here http://www.philly.com/philly/wires/ap/news/state/pennsylvania/12428436.html). What is notable about both of these bills is that 1) they are extremely watered down versions of the original energy bills proposed, 2) they required the votes of both Democrats and Republicans to pass, and 3) it happened at both the state and federal levels.

The U.S. Senate bill eliminated the extension of existing production and investment incentives for wind and solar power, dropped the tax increases on Big Oil, and dropped the renewable electricity mandate. The only notable remaining provisions was an increase in biofuel production and increased CAFE limits. In short, the bill became less of a comprehensive reexamination of our energy sources and demands, and more about making nibbling changes at the edges.

In Pennsylvania, Governor Ed Rendell had originally proposed a bill which included an $850 million Energy Independence Fund, among other provisions. The bill which passed the Senate provided only $250 million, and provided $25 million subsidy to help utilities comply with mercury regulations. It provides only $5 million for consumer energy efficiency assistance.

What the US and Pennsylvania Energy Bills demonstrate is a remarkable lack of political will. I would have hoped that after the war in Iraq, a scientific onslaught of global warming evidence, higher gas prices, a Democratic Congress, increased awareness of environmental and energy issues and a ridiculously low presidential approval rating that the lawmakers would have the political will to make real change on energy issues. But apparently the time has not yet come.

Apologies

2007-12-16T12:30:00.001-05:00

Please excuse the one month absence from the blog. My husband had surgery and I am pregnant (not to mention a full-time lawyer), so the blog had to take a backseat. I hope to be posting with more regularity over the next few months, but the blog will go on hiatus from May (ish) through August next summer for maternity leave.

All my best for a happy and green holiday season and new year.

Reining in McMansions

2007-10-23T16:03:00.000-04:00

Further to my post here http://greenlaw.blogspot.com/2007/07/can-state-rein-in-mcmansions.html, MSN has an interesting article on McMansion regulation today. http://realestate.msn.com/buying/Articlenewhome.aspx?cp-documentid=418653

NAHB Weighs in on Regulatory Carrots v. Sticks

2007-10-23T15:47:00.000-04:00

Further to my October 21, 2007 post, on October 17, 2007, the National association of Home Builders testified before Congress advocating incentives to promote green building as opposed to mandatory building code changes-- http://www.nahb.org/news_details.aspx?sectionID=148&newsID=5499.

Green Bills--Carrots or Sticks?

2007-10-21T19:04:00.000-04:00

Late last week Governor Schwarzenegger vetoed three California bills which would have mandated green building requirements for commercial and residential buildings over the next decade. http://www.greenbuildingsnyc.com/2007/10/18/schwarzenegger-vetoes-california-green-building-legislation/ I discussed the prospect of these bills here in the context of the overall need for regulation of green building--http://greenlaw.blogspot.com/2007/09/regulation-it-really-works.html.

The Governator did, however, approve a bill providing tax credits for sustainable low-income housing. http://www.californiachronicle.com/articles/viewArticle.asp?articleID=40629

I am currently working with some political candidates in Philadelphia in considering the most efficacious road to encouraging green building. I have ended up in several "carrot-or-stick" conversations--in other words, is it better to have laws mandating green building practices like those that have been passed in Washington DC and Boston, or to provide incentives (financial and non-financial, like fast track permitting for green projects)?

Obviously, the two are not mutually exclusive, but there is a philosophical divide on the appropriate role for government in green building. Is sustainable development more like fire safety--something which costs builders money to install but benefits everyone to such an extent that government must mandate its installation--or like arts and culture which government encourages through spending and education, but does not mandate? I would argue that it needs to become more like fire safety--the impact of buildings on the planet is simply too great to leave to the vagaries of the marketplace. For the impact of buildings on global warming, see the UNEP study available here http://www.unep.fr/pc/sbc/publications.htm.

Regulation--It really works

2007-09-30T21:52:00.000-04:00

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

2007-09-30T21:46:00.000-04:00

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

2007-09-18T16:38:00.000-04:00

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

2007-09-13T21:24:00.000-04:00

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

2007-09-13T21:00:00.000-04:00

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

2007-09-03T20:35:00.000-04:00

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

2007-09-03T20:30:00.000-04:00

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.

More on Mortgages

2007-08-24T10:15:00.000-04:00

Yesterday I posted a conclusion that the subprime lending debacle was going to make securing funds for green building projects more difficult. There was one more observation that needs to be made as a result--the tightening capital market puts the onus on the government to keep the green building momentum growing. It is really up to states, municipalities and even the Federal government to mandate green building practices which might otherwise get "value engineered" out in a tight money situation.

Unfortunately, Even Green Buildings Still Have To Have Mortgages

2007-08-23T21:01:00.000-04:00

I am always fascinated by the fact that the financial services industry loves ponzi schemes, like the Savings & Loan debacle and the sub-prime mortgage mess. GreenbuildingsNYC has an interesting bit on the effect of the sub-prime mortgage situation on green building here http://www.greenbuildingsnyc.com/?p=287.

I spend quite some time thinking about mortgages, because the governmental framework which supports them has such a significant impact on what--and where--buildings are built. For example, the fact that home mortage interest is tax deductible allows people to build bigger houses. Because that interest deduction is applicable wherever your house is located, there is no disincentive to building ever further out from the urban centers.

Here, I think the subprime mortgage debacle will have a two-fold result: 1) banks will be less likely to lend to projects in general, and 2) to avoid risk, perceived "experimental" green building projects with a less reliable set of financial pro formas may be even more difficult to fund than traditional projects.

What's new is risky, and what's risky in the real estate world is rapidly going out of fashion.
This could put a dent in the nacent green building boomlet, but it will force projects to be sound financially, as well as ecologically.

Rival Green Building Standards, Part II

2007-08-19T20:38:00.001-04:00

A month or so ago I posted on the various emerging green building standards. http://greenlaw.blogspot.com/2007/07/proliferation-of-standards.html

There was a nice analysis of the NAHB (National Association of Home Builders) and LEED for Home rivalry in the Sarasota Herald Tribune: http://www.heraldtribune.com/article/20070819/REALESTATE/708190677

Bureau of "Land" Management

2007-08-18T10:16:00.001-04:00

The new director of the Bureau of Land Management, the government agency that controls Federal lands, has done something pretty appalling. He has exempted certain activities--like grazing, oil exploration and forestry--on Federal lands from the requirements of the National Environmental Policy Act. See a full article from Daily Green here http://www.thedailygreen.com/2007/08/14/gov-exempts-258-million-acres-from-environmental-review/5194/.

My question--does he have the authority to do so? I think it would certainly be up for legal challenge--can an executive branch official relieve obligations under a legislative branch mandate?

Title IX of the House Energy Bill--The Green Building Provisions

2007-08-16T17:47:00.000-04:00

I have spent the last few days parsing the hideously convoluted legalese which is Title IX--Energy & Commerce of the House's recently passed--and much touted--Energy Bill, which I wrote about generally earlier in the week. http://greenlaw.blogspot.com/2007/08/at-long-last-energy-bill-post.html

Title IX contains most of the provisions related to green building. Below is a non-comprehensive tour through some of the provisions of interest to me.

Sections 9001-9020 relate to the energy efficiency of appliances, raising the required energy efficiency for dehumidifiers, washing machines, dishwashers, refridgerators, etc.

Sections 9021-9030 relate to energy efficiency of lighting. There is some neat provisions in this section, including 9021 which requires the Secretary fo Energy to issue regulations prohibiting the sale of 100 watt general service incandescent lamps after January 1, 2012, and specifying ever increasing efficiency ratings for other lamps. However, three way lamps are exempted from the requriements. I have a problem with this--many, many lamps are three-way. What is the point of this exemption? Is there a three-way lamp lobby? Section 9023 mandates the use of energy efficient lighting fixtures and bulbs by the Federal government.

Sections 9031-9040 relate to residential building efficiency. Section 9031 requires states to update their building codes to be more energy efficient. THIS IS A BIG DEAL! It provides funding, support, etc. for the states to do so. Section 9034 provides additional financial assistance to consumers for home weatherization.

Sections 9041-9060 relate to commercial building efficiency. Section 9042 establishes an Office of Federal high-Performance Green Buildings to, among other things, coordinate the green building activities in various Federal agencies, identify and develop Federal high performance green building standards to be used for Federal facilities and research budget and contracting practices that affect achievement of green buildings. In an effort to employ more of us green-building types, Section 9043 establishes an Office of Commercial High-Performance Green Buildings. This Office is tasked with managing a public-private partnership program (Section 9043 (f)) which shall, among other things,further development of green buildings, study and refine a national goal to reduce commercial building energy use (Section 9044), and create a national high-performance green building clearinghouse of information. Sounds like a nice job, perhaps they will hire me. Section 9052 provides up to $100,000,000 for loan guarantees for renovation projects that will result in a building achieving LEED "certified" level. Several other provisions in these sections provide funding for the establishment of various green building pilot programs.

All in all, there are many good-sounding programs in Title IX, but we shall see what remains when the House and Senate bills are reconciled.

Green Sprawl

2007-08-15T10:02:00.001-04:00

I have a problem. My problem is green sprawl--green buildings in acres of impervious parking lot, located in far flung suburban locales. There have been two recent articles that exemplify this issue: PNC Bank is developing green bank branches http://www.philly.com/philly/business/20070815_GREEN_are_its_BRANCHES.html and Best Buy is developing green stores http://masshightech.bizjournals.com/masshightech/othercities/twincities/stories/2007/08/13/focus3.html?b=1186977600%5E1504926. Much though I appreciate the goal of building green, without a larger perspective on the context for the buildings, it is nothing more than greenwashing. A green big box store on a greenfield requiring miles of infrastructure is simply not sustainable. The USGBC is attempting to remedy this situation through its LEED for Neighborhood Development, but all LEED rating systems should incorporate prohibitions on developing in an unsustainable fashion. In addition, green building regulations from government entities must also incorporate context into their requirements.

Nice Article On Infrastructure

2007-08-13T08:43:00.000-04:00

The Christian Science Monitor had a nice piece on infrastructure funding. http://www.csmonitor.com/2007/0810/p03s01-usec.htm

At long last--The Energy Bill Post

2007-08-12T16:34:00.001-04:00

I apologize, readers, for the 10 day hiatus in posts, but I have been on vacation, and then thinking about what to say about the Energy Bill passed in the House on August 4, 2007.

Earth2Tech has a nice summary of the features of the bill here http://earth2tech.com/2007/08/05/house-passes-energy-bill/.

I want to disuss what the bill doesn't do. The Bill does not remotely address our dependence on fossil fuel and coal. It basically just nibbles around the edges, establishing programs like the Advanced Research Projects Agency-Energy, for energy research, and requiring the Department of Energy to establish a green building clearinghouse, and providing funds and incentives for alternative fuel research and use. An increase in the fuel efficiency standards for cars, for example, was removed from the bill.

What really needs to happen is large scale, expensive change--a carbon tax, and a cap-and-trade program for emissions. The Federal government needs to create legislation to build the actual cost of environmental damage into each and every energy transaction to effect real change. Now that Democrats have some governmental power, they must push for the large scale change that will really make a difference, as opposed to wasting political capital on band-aid pallitives.

The bill does have some positive aspects--it cuts the $16b subsidy to Big Oil, and it creates milestones for the Federal government to reduce its carbon footprint. But we need to stop playing around, global warming is not a problem that lends itself to partial solutions. It requires large scale political change which will impact large corporate players. The Democrats in Congress do not appear to be ready to think big.

A word about infrastructure

2007-08-02T20:14:00.001-04:00

I have posted before about the need for the 2008 presidential candidates to develop an infrastructure plan. http://greenlaw.blogspot.com/2007/07/i-want-hillary-clintons-50-billion.html

This country simply cannot go on allowing our infrastructure to age and fail, as has happened twice in the past two weeks--the explosion in New York and the bridge collapse in Minnesota. Years and years of cutting taxes and underfunding capital infrastructure like sewage, rail, etc., is going to create more failures--and potentially more tragedies--until the issue is addressed.

Considering Global Warming In Environmental Review of New Projects

2007-08-02T16:52:00.001-04:00

As of September 1, 2007 King County, Washington is "requiring County agencies to consider climate change impacts as part of their project review under Washington’s State Environmental Policy Act (“SEPA”)." http://www.metrokc.gov/exec/news/2007/pdf/climateimpacts.pdf

In short, King County is on the leading edge of local governments starting to mandate consideration of global warming as part of development projects. A good, in depth article on the King County legislation is available from the Marten Law Group. http://www.martenlaw.com/news/?20070801-climate-sepa-review

Effective Green Incentives

2007-08-01T22:27:00.001-04:00

Sunnyvale, California, home to Yahoo! Headquarters, among other big tech compannies, has enacted regulations which allow builders who decide to build green to increase the allowable height of their buildings. http://www.mercurynews.com/realestatenews/ci_6501546

The Sunnyvale incentive, like fast-tracking permitting for green buildings, is an effective way to encourage developers to build green.

Experiments in Open Space

2007-08-01T12:54:00.000-04:00

I read an interesting article in today's Dayton Daily News about a township which allows private open space conservation easements. http://www.daytondailynews.com/n/content/oh/story/news/local/2007/07/29/ddn072907easement.html
Essentially, the concept is that an individual homeowner commits, via easement, to preserve a certain portion of their property as open space (pastureland, farmland, etc.). This is an innovation insofar as most open space preservation schemes reserve the open space in a public or semi-public entity, like a townshuip or homeowners association. Here, the preservation is private, and, as the article states, is essentially a very large backyard.

The article seems a tad outraged at the concept of private preservation of open space. However, in its current context as farmland it is open space belonging to a private owner. Therefore, to the extent that open space can be "sold" as part of private development, I believe it could be an effective tool in balancing development and open space. However, to what extent people will pay to be obliged to maintain part of their property as open space remains to be seen.

Resources on Green Regulations

2007-07-30T21:40:00.001-04:00

Today's post seeks to answer a question which I have received numerous times--where do I go for information on green building regulations. The answer is simple--there is no one place. I keep my eye peeled for announcements by municipalities--see new ones in Portland--http://www.cleanedge.com/story.php?nID=3570, West Hollywood--http://www.buildinggreentv.com/keywords/green-building/1068, and Baltimore--http://legistar.baltimorecitycouncil.com/detailreport/?key=3289.

But there are a few resources which have lists of relevant laws and regulations:
A favorite resource of mine is DSIRE's list of incentives and regulations, available here http://www.dsireusa.org/library/includes/map2.cfm?State=ca&CurrentPageId=1&EE=0&RE=1.

Another is Smart Communities Network--http://www.smartcommunities.ncat.org/buildings/gbcodtoc.shtml. The Smart Communities list is nice, if a little dated.

The USGBC has a list as well, which is hard to find directly on their website--http://www.usgbc.org/DisplayPage.aspx?CMSPageID=76&#12.

Certain cities and states list their incentives and regulations in a user friendly fashion, especially Seattle--http://www.seattle.gov/dpd/GreenBuilding/OurProgram/PublicPolicyInitiatives/DevelopmentIncentives/default.asp.

Chicago has a nice website with green resources--http://egov.cityofchicago.org/city/webportal/portalEntityHomeAction.do?entityName=Chicago+Center+for+Green+Technology&entityNameEnumValue=161.

I would advocate that the Council of Mayors or similar organization should create a resource which consolidates green building regulations of various municipalities in one place. For now, I will try to be on the look out for more lists and keep up to date on green building laws as they come to my attention.

Economic Value of Sustainable Communities

2007-07-26T11:53:00.000-04:00

Individual green buildings are important, but the long term goal should be to develop sustainable communities. A new report by the Price of Wales' foundation demonstrates the economic and social value of walkable, mixed use and mixed income communities. The report is available here http://www.princes-foundation.org/index.php?id=8.

Among the most interesting analyses is a comparison among new urbanist communities in different supply and demand markets. The report concludes that the new urbanist model "appears to provide the greatest value enhancement where development is taking place in a moderate demand market." However, it records a 30% premium for the new urbanist community in a high supply market, which may be an even more important conclusion.

I Want Hillary Clinton's $50 Billion

2007-07-25T18:04:00.000-04:00

On Monday, Hillary Clinton reiterated her proposal to "establish a $50 billion 'Strategic Energy Fund' that would create a research agency focused on reducing the threat of global warming." Among other things, Clinton proposed "spending $1 billion a year to improve energy efficiency in schools and other public buildings." http://www.boston.com/news/nation/articles/2007/07/24/clinton_proposes_1_billion_green_building_fund/

According to the Boston Globe, Senator Clinton proposed paying for the initiative by taxing oil company profits. "Oil companies...would face a choice: invest $20 billion in alternative fuel technology and build cleaner refineries or pay taxes on some of their profits."

As I have said many times before, the government's spending power is a powerful thing, and I support the Senator's plan. And I am also in favor of creating a economic system under which the true cost of petroleum products is included in the price, including taxes and environmental impact.

But I am concerned that I haven't heard anything about changing the investment in infrastructure. The government must not only stop subsidizing the oil companies, but must also decrease investment in highway building and increase investment in alternative transportation mechanisms to reduce our oil dependency. It is absurd that it takes 1.5 hours and $100+ to travel 94 miles from New York to Philadelphia by train.

The presidential candidates need to examine the built environment and build a comprehensive plan, including legal and economic components, to address the global warming/sustainability issue

Leonardo DiCaprio Needs Me

2007-07-23T18:47:00.000-04:00

I read in today's Inhabitat that LEONARDO DI CAPRIO to Build “Eco-Town” in Kansas. It appears that the actor is filming a 13-part reality series about creating an environmentally sustainable community in Greenburg, Kansas which was devastated recently by a tornado. I wonder whether Leo and friends have sufficiently taken into consideration the legal issues facing the development of an ecologically sustainable community.

1) Has Leo considered the zoning code of the town? As many of you are aware, zoning may make it impossible to have a town which does not depend largely on automobile transportation due to prohibitions on the mixing of uses. The zoning code may also prohibit the use of green technologies, like photovoltaics or waterless urinals. The zoning code also must ensure that future building endeavors are done sustainably, by at least providing for mixed-use development and facilitating green buildings, and preferably by requiring environmentally friendly building techniques and typologies.

2) Has Leo analyzed whether the building code prohibits the use of green technologies or mandates the use of environmentally unfriendly products, like certain fireproofing and insulation materials?

3) Has Leo interfaced with the Kansas Department of Health and the Environment? Has he analyzed the state and local environmental laws he may encounter when doing large scale rebuilding?

4) Has Leo considered the risks associated with sustainable development and adequately provided for insurance of the new projects in the event of loss?

5) Has Leo developed effective short and long term public transportation plans, interfacing with the Kansas Department of Transportation?

I am waiting for Leonardo DiCaprio's call.

More environmental concerns with green projects

2007-07-23T17:01:00.000-04:00

Green Wombat had a nice piece today on wrangling over the rights to build wave power plants. http://blogs.business2.com/greenwombat/2007/07/pge-san-francis.html

The use of wave power will undoubtedly threaten coastal environments. I blogged last week about the high output solar plants being developed, which would require power lines through park land. Some legal compromises will need to be made between current environmental laws and the proliferation of new power plants.

What Happens In Las Vegas...

2007-07-22T22:06:00.000-04:00

Although what happens inVegas is supposed to stay in Vegas, what has happened to tax incentives for green building in Las Vegas could spell trouble for the rest of the nation as state and local governments use tax incentives to encourage green building.

In 2005, the Nevada legislature established sales tax exemptions and a property tax exemption -- worth up to 50 percent of the property value for up to 10 years -- to projects that qualify under the Leadership in Energy and Environmental Design standards. Projects meeting the silver level of certification were eligible for a 35 percent property tax break.

Two years later it became clear that so many projects qualified for exemptions that the state budget was going to be severly impacted. There was a good deal of legal hand wringing while it was determined whether the tax break could be repealed. On May 3, 2007, the Nevada legislature voted to put the breaks on hold. On May 14, 2007, the governor vetoed the suspension bill. http://vegaspundit.typepad.com/vegas_pundit/files/greenvetodocs.pdf

On June 4, a compromise bill was passed. According to the Nevada Appeal, "AB621 preserves substantial tax breaks, between 25 to 35 percent in property taxes for up to 10 years, but requires that developers meet higher standards for energy efficiency. The breaks also do not apply to money owed to school districts. The bill also gets rid of sales tax exemptions on construction materials provided by the 2005 law." http://www.nevadaappeal.com/article/20070604/ELECTIONS/106040094&SearchID=73287969383746

More politics, more lobbying, and the the tax panel is now set to consider a proposed regulation to implement the new law on Aug. 6. According to at least one commentator, the new law is likely to have as large loopholes as the original one. http://www.lasvegassun.com/sunbin/stories/commentary/2007/jul/18/566616784.html

So what happened here? Clearly the idea was a good one--use the government's fiscal levers to encourage green building. But hurrying to implement a law before the implications could be thoroughly investigated may have done more harm than good. Now the lawmakers are having to find a way to scale back the incentives, and crushing any further progress for green building intiatives in Las Vegas for some time to come. And there are few places in the country who need to be concerned about conservation--especially water conservation--more than Las Vegas.

I believe that this is only the first legal explosion in the green building area--there are so many new laws and regulations being passed as government bodies seek to jump aboard the green building bandwagon. Financial incentives for green building have a surface appeal--they don't mandate anything, so opposition is generally limited, and they can be counted as "doing something" about environmental concerns. But all incentives are not good incentives--the key is for governments to develop careful, measured incentives by asking two key questions: what will the full fiscal impact be and will the incentive cause changes in behavior which could not be acheived by other, less costly methods. Governments cannot abdicate their responsibility to make good, effective laws which will encourage and enable green building for decades to come by passing easy, ill-thought-out tax breaks.

Kudos to Wells Fargo Bank

2007-07-19T22:36:00.000-04:00

Today Wells Fargo Bank announced that "it has surpassed the $1 billion mark in loans for Leadership in Energy and Environmental Design-certified buildings. " according to the Milwaukee Business Journal. See full article here http://milwaukee.bizjournals.com/milwaukee/othercities/eastbay/stories/2007/07/16/daily47.html?b=1184558400^1494032

Green Financing

2007-07-19T14:01:00.000-04:00

Building Green had an interesting post today about Green Financing organizations. http://www.buildinggreentv.com/blog-location/workshop-home/945

In addition to financing, of course, insurance is another key component in effective green building. Fireman's Fund has a product called Green Gard. http://www.firemansfund.com/servlet/dcms?c=business&rkey=437 In addition to providing insurance specifically for green buildings, it allows insureds to rebuild green in the event of a loss.

No Good Deed Goes Unpunished

2007-07-19T09:46:00.000-04:00

Green Wombat had the following post about a proposed high voltage solar power project in Southern California. http://blogs.business2.com/greenwombat/2007/07/high-voltage-so.html
In short, the problem is that "SDG&E (SRE) needs to build a $1.3 billion, 150-mile transmission line through a state park and other environmentally sensitive lands to get the renewable energy to its customers. " Green Wombat.

The comments on Green Wombat focus on the viability of the high voltage solar power technology, but what interests me more (of course) is the impact of new power plants of any kind on the existing environmental law structure. Wind farms require vast expanses of land, and threaten birds and other animals. As this case indicates, large scale solar will require 1) the power plants themselves, and 2) the transmission lines to get the power to the grid. There will be an inevitable conflict between the Endangered Species Act, inter alia, that will result from what is essentially the construction of new power plants.

The question I pose is the following: should there be different standards applied to "green" power facilities?

Green Life Tip

2007-07-18T11:04:00.000-04:00

Discovery Television is launching a 24-hour green channel. See http://planetgreen.discovery.com/ for details.

Can the state rein in McMansions?

2007-07-18T09:39:00.000-04:00

Although slightly off the strict green building theme, an interesting intiative in Colorado caught my attention. http://www.time.com/time/nation/article/0,8599,1643151,00.html

In short, Boulder, Colorado wants to institute a McMansion tax. Homeowners who are willing to sign away the right to build larger homes will get a tax credit, and those who want to build bigger homes will have to purchase credits.

My questions are: 1) Is this an illegal restraint on the use of property, and 2) what will its ultimate benefit be?

There is little doubt in my mind that this McMansion tax will fail to withstand legal scrutiny. Since the main objections to McMansions are moral and aesthetic--as well as environmental and economic--I think it might be wiser (and more likely to withstand legal challenge) to tie a fee to ameliorate the impact the house will have on the community and the environment. For example, if there will be additional sewage draw, or roads, or fire protection needed, the inidividual homeowner will need to compensate the community.