Green Building Law Blog : Green Building Lawyer & Attorney : Shari Shapiro: Obermayer Rebmann Maxwell & Hippel Law Firm : Environmental, LEED

I promised a post on Obama's State of The Union, but in mulling over my response to the speech and several other events which have occurred in the days that followed, I realized that the issue which needs to be addressed is the degree to which the separation of powers between the executive and legislative branches of the government of the United States will serve to delay or derail real regulatory action on climate change (and green building), even where a strong executive seeks to pursue these goals.

The only hope is for Republican and Democratic senators concerned about climate change to form a coalition with the Obama administration.  This will require pressure from a new New Deal coalition--a "Green Deal" coalition of citizens, corporations concerned about the impact of climate change on their businesses, unions seeking new clean energy and green construction jobs, minorities seeking access to the middle class and political machines seeking a big win. If these factions can align behind climate change regulation, real legislative progress is possible.

Our government is one of limited, separated powers.  The Executive Branch has only three real avenues of power--administrative, diplomatic and rhetorical.

Over the past few months, the Obama administration has been using the administrative tools within the delegation of executive power to boost climate change regulation.  On December 7, 2009, The EPA made an endangerment finding with respect to greenhouse gases. On January 7, 2010, the SEC issued guidelines regarding corporate disclosure of climate change risk.  On October 5, 2009, Obama issued an Executive Order requiring all federal agencies to assess their environmental impact, and setting aggressive green building requirements for federal facilities, followed on January 29, 2010 with an announcement pledging  to reduce the federal government's greenhouse gas pollution by 28 percent by 2020. 

Obama also used his diplomatic authority to forge an international accord at Copenhagen, however limited.  All 55 countries, responsible for more than two-thirds of global greenhouse gas emissions, submitted plans to curb their impacts as of 1/31/10.  

Finally, using his rhetorical power, in Obama's State of The Union, he tied investments in clean energy to economic growth, and encouraged the Senate to pass a clean energy bill:

Next, we need to encourage American innovation. Last year, we made the largest investment in basic research funding in history -– (applause) -- an investment that could lead to the world's cheapest solar cells or treatment that kills cancer cells but leaves healthy ones untouched. And no area is more ripe for such innovation than energy. You can see the results of last year's investments in clean energy -– in the North Carolina company that will create 1,200 jobs nationwide helping to make advanced batteries; or in the California business that will put a thousand people to work making solar panels.

But to create more of these clean energy jobs, we need more production, more efficiency, more incentives. And that means building a new generation of safe, clean nuclear power plants in this country. (Applause.) It means making tough decisions about opening new offshore areas for oil and gas development. (Applause.) It means continued investment in advanced biofuels and clean coal technologies. (Applause.) And, yes, it means passing a comprehensive energy and climate bill with incentives that will finally make clean energy the profitable kind of energy in America. (Applause.)

I am grateful to the House for passing such a bill last year. (Applause.) And this year I'm eager to help advance the bipartisan effort in the Senate. (Applause.)

I know there have been questions about whether we can afford such changes in a tough economy. I know that there are those who disagree with the overwhelming scientific evidence on climate change. But here's the thing -- even if you doubt the evidence, providing incentives for energy-efficiency and clean energy are the right thing to do for our future -– because the nation that leads the clean energy economy will be the nation that leads the global economy. And America must be that nation. (Applause.)

In short, Obama is doing everything within his delegation of authority to enhance climate change regulation.  But, at the end of the day, the President cannot make laws.  He cannot force corporations or citizens or even states to undertake major changes to their actions which would be necessary to make dramatic reductions in greenhouse gas emissions.  He cannot withhold federal funds from states that fail to regulate or curb their own greenhouse gas emissions.  Those powers remain exclusively with Congress.  Only Congress can cap greenhouse gas emissions. Only Congress can tax greenhouse gas emissions.  Only Congress can enact a national enegy efficiency building code, or compel states through withholding funds to update their building codes to promote green building and energy efficient practices. 

In a system of separated powers, significant social change requires cooperation among the branches of government. So, with the partisan bickering in Washington and the recent election of a Republican senator in Massachusetts, the chances of significant progress on climate change regulation have decreased.  Only the Green Deal coalition can save us.

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After the birth of my beautiful daughter, Sydney Annabelle, in December, I took a few weeks off.  I will briefly recap a few notable green building law stories which arose while I was on leave, and I will pick up with the impact of the State of The Union address on Monday.

The scoops I missed:

• ICC announced the International Green Construction Code will be released in March.  The
  IGCC will then go through another round of review, comments and public hearings in 2011 for the publication for the 2012 ICC Family of Codes.  ASHRAE also announced Standard 189 (the ASHRAE code compliant green building standard) is due to come out soon, representing approximately 25% energy savings over ASHRAE 90.1 2007 according to Buildinggreen.com

• New York City passed landmark green building legislation

The four major building-related elements of the legislation are: the creation of a citywide energy code; a benchmarking requirement; lighting system upgrades and tenant submetering; and required energy audits and retrocommissioning.

• California adopted the nation's first statewide green construction code, but not without controversy.  Some environmental groups moved at the last minute to prevent passage because it was not "green" enough. 

• Hawaii's mandate for solar hot water heaters went into effect.

• The White House announced that the Federal Government will reduce its greenhouse gas (GHG) pollution by 28 percent by 2020. 

Whew! GBLB will be back to its usual twice weekly publishing schedule next week, and thank you for your readership.

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As my readers know, GBLB is on Maternity Leave until February 1, but I couldn't pass up the opportunity to take a look back at the last year in green building, look forward to the next decade, and give a shout out to a few people and resources that are important to GBLB.

 2009 In Green Building Law

What we saw...

Regulatory enhancement at the federal level--Through the Stimulus Bill, Executive Orders, administrative rulemaking and draft Climate Change legislation, the Obama administration and the 2009 Congress took action on green building regulation on the Federal level.

Regulatory degradation at the local level--From New York to London, localities which passed green building regulations have been scaling back their regulatory schemes due to economic distress.

Stimulation from the stimulus, but not as much as promised--Over $1.5 billion has been spent through the ARRA--also known as the stimulus bill--on green projects, but that is far shy of the total allocated funds, and much, much less than non-green spending.

What we didn't see...

More private lawsuits--We didn't really see a bumper crop of private litigation over green building projects.  With so many developers, architects, etc. in financial distress, litigation is not high on the list of business expenses--not to mention suing judgment proof entities is a fruitless exercise.  As the economy picks up, lawsuits may pick up as well.

2010 In Green Building Law 

What we will see...

Conflict over addtional green building regulation and enforcement of existing regulations--as local governments continue to suffer with economic woes, there will be continuing debate over whether green building incentives are affordable, and whether green building mandates are stifiling development.

Potential for national building code regulation--If Climate Change legislation is enacted, it may contain national energy efficiency building code regulation.  This will this be game changing for state and local green building regulation--the federal regulations may preempt state and local actions, and will also put new obligations on states and localities to develop and pass energy efficient building codes. Federal legislation on building codes may also open the door for a legal challenge regarding the federal government's authority to regulate this historically state and local area of regulation, especially if there are significant unfunded mandates regarding the development and enforcement of new building codes.

What we might see,..

More lawsuits--If the economy rebounds, and there is more money flowing in lending to real estate, more green buildings will be built, and that will lead to moe contracts, more defaults and more litigation.  But that is a maybe for 2010--the credit markets need to loosen considerably before this becomes reality.

International climate change targets--Obama's efforts at Copenhagen to get an international climate change agreement may bring some international requirements into fruition over the next year.  These would drive domestic policy changes, and green building policies will undoubtedly be a component of such regulatory schemes.

People We Loved In 2009

The GSA--The people at the General Services Administration were so open, cooperative and helpful in putting together our statistics for the Stimulus posts this year. 

Chris Cheatham at Green Building Law Update--We co-authored a chapter on Green Building Litigation together for a new book on Green Building Law. 

Professors Rob Fleming and Chris Pastore, co-directors of Philadelphia University’s Engineering and Design Institute, an interdisciplinary research center focusing on green materials, sustainable design and community outreach, and the hosts of a great radio show on sustianability, Ecoman and The Skeptic.

To my friends Scott Edward Anderson, also known as the Green Skeptic, Chris Hill atConstruction Law Musings, Stephen Del Percio at greenbuildingsnyc, Rich Cartlidge at Green Building Envirotrends,  Tim Hilll, at VAConstruction Law and Mitch Swann for inspiring great green building law conversations all year long.

Finally, a big shout out to our fabulous green building law blog community members.  Thank you for reading, commenting, and nominating us for the ABA Blawg 100. 

Wishing you a happy new year and a greener 2010!

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We have heard a chorus of voices over the past few days raising the moribund concept that climate change is not happening, and is some global liberal conspiracy to devalue oceanfront property in Palm Beach. 

At the center of raising the hydrahead of the Palm Beach Conspiracy was the discovery of  some emails from the University of East Anglia where climate change scientists were engaging in the age-old academic practice of arguing with one another.  For a "pro" climate change perspective, Gawker explains the situation here, for an "anti" climate change perspective, the Weekly Standard provides this analysis.

I was guest lecturing at Princeton a few weeks ago, and I used the opportunity to propogate one of my favorite ideas--I call it the 50% Rule. It can be used to explain the Palm Beach Conspiracy, statistics about climate change, and as a means of deflating your brother-in-law's wild stories about catching a 45 foot trout during holiday meals. Here it goes--when you hear a statistic or a scandal or a wild trout fishing tale, assume the information is off by 50%.  One-half.  Then determine whether the information still matters.  If your brother's trout was only 22.5 feet, not 45, that's still a mighty large fish.  Similarly, with climate change, if scientists' statistics about sea level rise or drought are off by 50%, we are still looking at a serious problem.  The result? We still need to do something about it.  

With respect to the Palm Beach Scandal, Micheal Oppenheimer from Princeton on NPR explained it beautifully. The consensus of hundreds of scientists, using many different methodologies, all in competition with one another have reached a consensus that climate change is real and caused largely by man's actions.  Even if 50% of the data is wrong or subject to bias or manipulation,  that is still hundreds of the world's best scientists coming to a consensus (which if you have ever had two scientists in a room is a feat in and of itself) coming to the same conclusion.

Finally--here are the choices. Assume climate change is not real, and roll the dice on droughts, wars, starvation, dependence on foreign oil, continued economic stagnation and incalculable human suffering.  Assume climate change is real, take action, create new jobs, industry, reduce pollution and human health risks from carbon emissions in general, reduce dependence on foreign fuel regimes and potentially keep polar bears from extinction.  Strikes me as not much of a choice.

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It has been quite a week over here at GBLB.  On Tuesday, GBLB was selected as one of the top 100 best law blogs of 2009 by the American Bar Association Journal. We were thrilled to be honored!

You can vote for GBLB to win the best of the "Practice Specific" blogs here.  Voting closes on December 31!

As if Tuesday weren't exciting enough, I also had my second child, Sydney Annabelle Shapiro, weighing in at 6 lbs., 6 oz. at 2:51 p.m. e.s.t. Mom, baby and blog are all doing well.  As for dad, we'll have to check back in a little bit. 

To the entire GBLB community, thank you for your support and enthusiasm this year, and see you in 2010!

Shari 

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Many of my readers have requested a clip of Green Building Law Blog's appearance on MSNBC discussing the amount of stimulus funding going to green projects.  The link is below:

http://www.msnbc.msn.com/id/21134540/vp/34016904#34016904

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In July, I wrote an analysis of the “green” spending in the American Reinvestment and Recovery Act—ARRA, also known as the “stimulus bill.” I concluded that as of July the spending on green programs accounted for only .28% of the total allocation for those programs in the ARRA-- $33.2 million had been paid out for green stimulus programs, and an additional $307 million in public transit dollars.

So…where are we four months later? More money has been paid out--about $1.5 billion--but it pales in comparison to the $83.8 billion  paid out in tax benefits as of 11/06/09, and spending on non-green projects.

Here are the stats in detail:

Energy Efficiency/Renewable Energy--Department of Energy

As of 7/17/09 the Department of Energy had paid out $264,457,144. $16,796,000 had been awarded for energy efficiency and renewable energy projects, of which $3,189,150 had actually been awarded. BOTTOM LINE IN JULY: $3 million

As of 11/06/09, the Department of Energy had paid out $1,346,197,498. $16,796,000 had been awarded for energy efficiency and renewable energy, of which $10,651,341,856 had actually been awarded, and $347,779,891 paid out. BOTTOM LINE IN NOVEMBER: $347.8 million.

Increase from July: $344.8 million.

High Performance Green Buildings--General Services Administration

As of 7/17/09 overall the GSA has paid out $12,743,040. of available $656,418,268 of which $6,807,468 has been paid out for federal buildings, which includes high performance building projects. According to the GSA, $4,500,000,000 was appropriated by Congress, $318,750,279 obligated to date (contracts awarded) and $230,771 outlayed to date (work completed & paid).
 

As of 10/06/09 overall the GSA has paid out $333,444,141, of which $67,324,333 been paid out for federal buildings, which includes high performance building projects.

Public Transit--Department of Transportation

As of 7/17/09 the DOT has paid out $773,662,175 of a total available $22,188,399,591. For rail and other transit funding, including Amtrak, obligations of $3,921,784,326.72, outlay of $306,918,718.00 (this includes state block grants).  BOTTOM LINE IN JULY: $307 million in public transit funding outlaid as of 7/17/09.

As of 10/30/09 the DOT has paid out $5,551,384,466 out of a total available $30,514,836,708. For rail and other transit funding, including Amtrak, obligations of $7,539,142,781.45, outlay of $824,343,952.21 (this includes state block grants).  BOTTOM LINE IN NOVEMBER: $824 million in public transit funding outlaid as of 10/30/09.

Increase from July: $517 million.

Everything the EPA Is Doing--Environmental Protection Agency

As of 7/17/09, EPA has paid out $30,515,805 of the $5,713,481,497 it was allocated. Assuming that all that the EPA does is in some way green related, and this is a big assumption on my part, as much of the EPA funds have been dedicates to water resources and cleanup of hazardous sites, that adds another $30 million. BOTTOM LINE IN JULY:  $30 Million

As of 11/06/09, EPA has paid out $365,636,685. Assuming that all that the EPA does is in some way green related, and this is a big assumption on my part, as much of the EPA funds have been dedicates to water resources and cleanup of hazardous sites, that adds another $366 million. BOTTOM LINE IN NOVEMBER:  $366 Million

Increase from July: $336 million.

So?

The overall spending—i.e. money that has been paid out for green projects—in the first 10 months of 2009 amounts to over $1.5 billion. This is not nothing, and a vast improvement from the summer. On the other hand, $83.8 billion has been paid out in tax benefits as of 11/06/09, and allocation on highway infrastructure by the Department of Transportation alone was $20.2 billion of which $3.7 billion has been paid out. 
 

**A word about methodology--all of the above statistics were gleaned from Recovery.gov , the Recovery websites of the individual agencies, and my personal agency contacts.  For the DOT recovery site, go here.  For the GSA recovery site, go here.  For the DOE recovery site, go here. For the EPA recovery  site, go here.  There is a wealth of information available, and I welcome any input or different statistical or mathematical analyses from the Green Building Law Community.**

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I know, I said I was going on maternity leave, but before I do so, I will appear on MSNBC tomorrow, November 17, 2009 at 2:30 E.S.T. to discuss green spending through the American Reinvestment and Recovery Act, also known as the stimulus bill.  My original post on this topic is available here. 

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The time has come where I can no longer sit comfortably at my desk, meaning that Green Building Law Blog is going on maternity leave. I expect to post sporadically over the next couple of weeks until the baby arrives, and be off completely for December and January.  Thanks to all my loyal readers and have a very happy holiday season.

All the best,

Shari

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