Green Building Law Blog : Green Building Lawyer & Attorney : Shari Shapiro: Calliope Communications, LLC

Interesting article with quotes from industry leaders Marsh and Aon on the state of green insurance, predicting a two year lag before professional liability policies for green building practictioners are available. 

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Green Building Law Blog is going on vacation. During that vacation, I intend to finish a chapter on Green Building Law for a forthcoming book on the subject, finish a resource guide for the Delaware Valley Regional Planning Commission, research including carbon offsets and recs in banking documentation, and drink some eggnog.  

So, while I am away, here is some wonderful reading to fill your off hours.  Without more fanfare,  Green Building Law Blog's Best of Green 2008

The Best of The Best

Has to be my green building law blogger buddies Chris Cheatham of Green Building Law Update and Steve DelPercio of Green Real Estate Law Journal and greenbuildingsnyc.  If you read our three sites, you will have a deep understanding of green building law issues. Besides, they're great people who love to share ideas.  I couldn't ask for better "competitors."

Best "Mainstream" Green Sites

Greenerbuildings.com--Not only do they publish me often, they are always on top of green building news.  Plus, Leslie Guevarra, my editor there, is a skilled wordsmith and veteran newswoman. 

Treeehugger--They get kudos for scouring the green world and pulling out the most interesting, cutting edge green ideas.  They are always promoting good, smaller sites with great ideas and giving them "page one" exposure.

NRDC Switchboard--Blog of the hitters from the Natural Resources Defense Council.  Depending on the day, any one of their mega-credentialed staff has something interesting and well-thought out to say, from carbon to polar bears to reimagining malls.

Earth2Tech--Never fails to have the latest in green tech, finance and regulatory issues.  Well written, precise and easy to read.  

Best Topical Green Sites

Green Finance--Has to be Scott Anderson at the Green Skeptic

Green Building/Energy Efficiency--Green Decoder has excellent energy efficiency tips and great pictures of his efficiency projects.

LEED--Real Life LEED has great posts about the LEED system (even though the author has failed to include me in posts about green building law--see, this list is unbiased!)

Green incentives--DSIRE website has a database which includes almost all the publicly available incentives for renewable energy and energy efficiency

Green Regulations--I like this list by the AIA of green building regulations.

Green Life--Recycle Your Day--This is a fun site plus excellent green giveaways.  I will win one in 2009!

Green Baby!--As many of my loyal readers know, I had a baby, Sylvie Abigail, in April. My mom gave me the book Raising Baby Green, and I have been an avid follow of Dr. Greene's eponymous blog since.

Beyond Categorization--Blogs worth reading that don't fit into the above categories, but deserve credit!

The Oil Drum--Musings on renewable energy and the state of oil

Construction Law Musings--Chris Hill covers construction law, social media, and occasionally, me, at his excellent site.  

 Green Building Theology--Sara Sweeney, architect and green theologian, has this new blog with thought provoking posts on the intersection between green building and faith.

Green Modern Kits--Green pre-fab house kits! Great voice, great designs, and a nice page of efficiency tips.

Green Building Law Twitter Buddies--Twitter is an amazing place to have a conversation with these thought leaders

@scottdodd--New media guru at the NRDC

@researching--Judith Meskill's twitter handle. She brought you the likes of Babycenter and Weblogs, now has a new environmental site in beta supereco

@sallan_found--Nancy Anderson of the Sallan Foundation, the feed and site has great info on greener cities

@greenofficepro--Green leasing expert

@theoildrum--Twitter feed for The Oil Drum

@AltEnergyNews--Just as it says, alternative energy news

@gman68--Philly green builder

@sarasweeney--Sara Sweeney's green building architecture and theology feed

@greenmodernkits--Green Modern Kits feed.

@chrischeatham; @stephendp--Chris Chetham and  Stephen DelPercio's green building law feeds

 @lamamanaturale--Feed for Recycle Your Day

@elaineishere--Green building specialist in California

@constructionlaw--Chris Hill's feeed

@wind4me--Tweets on wind energy and wind stocks

@brian_phelps--Architect and urban designer.  Always forwards interesting articles.

 @vikdug--Construction industry professional and social media zealot

Don't like my list? Did I miss someone?  Leave a comment or tweet me--I am @sharishapiro!

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My friends over at Re:vision Architecture prepared this very handy guide to the credentialing changes in LEED 2009. Below is a helpful overview:

Benefits of the LEED Credentialing Program To:

INDIVIDUALS:

• Earn a marketable credential.
• Listing in GBCI website directory of LEED Professionals.
• Recognition for involvement in the LEED Certification process.

EMPLOYERS:

• Become eligible for projects that mandate participation of a LEED AP.
• Strengthen qualifications for responding to RFPs.
• Encourage growth of knowledge and understanding of LEED Certification.

INDUSTRY:

• Encourage and promote a higher understanding of green building.
• Support the transformation of the built environment.

Timeline:

FEBRUARY 2009

LEED Green Associate Exam - Beta Test
LEED AP + Operations and Maintenance Exam - Beta Test

MARCH 2009

LEED AP + Homes Exam - Beta Test

SPRING 2009

LEED Green Associate Exam - Launch
LEED AP + Operations and Maintenance Exam - Launch
LEED AP + Design and Construction/Interior Design and Construction - Beta Test
New Candidate Application

SUMMER 2009

LEED AP + Homes Exam - Launch
LEED AP + Design and Construction/Interior Design and Construction - Beta Test
New Credentialing Maintenance Program – Launch

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Washington DC has one of the most progressive green building laws in the country.  Passed in December 2006, Washington mandates, among other things, that private buildings above 50,000 square feet submit a checklist of green features by 2009, and meet LEED NC 2.2 standards by 2012. To enforce the law, there is a bonding requirement for each project. 

Today's Washington Business Journal [subscription required, but you can get a synopsis of article here] reported that the surety industry is complaining that the enforcement mechanism is flawed: 

Under the new law, if a project does not meet the strict green requirements, the city would receive money from a performance bond that has to be posted for the project in an amount of up to 4 percent of the building costs, or $3 million. Those dollars would be paid into a new city green building fund aimed at helping implement the legislation.

But the bonding mandate has surety companies wondering which party in the project — whether the building owners, the contractors or the designers — must shell out for the performance bond, therefore bearing the risk of noncompliance.

Without support from the sureties, which finance bonds, it will be difficult for Washington to enforce its law because construction projects won't be able to acquire the required bonds.  If there is bond default, litigation will surely follow, funded either by the parties involved, or the surety guaranteeing the bond.  Alternatively, the surety industry may choose to sue Washington, as the HVAC industry associations did to Albuquerque in AHRI v. City of Albuquerque, to enjoin the legislation from taking effect due to the poor drafting of the legislation. 

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To stimulate the green technology, repair infrastructure, fund transit and save the world, tax gas now.  At this moment, the price of gasoline, our carbon based friend, is $46.28.  At this price, green energy technologies like wind and solar are not competitive.  Energy efficiency improvements on houses do not make economic sense because energy is just too darned cheap. Thus continues our dependency on oil which is contributing to global warming and funding our frenemies in the middle east.  What to do? 

Tax gas now.

Here's how to do it:

First, set a price of crude where energy efficiencies will make economic sense.  Then set a floating tax which will tax up to that price point--i.e. up to that price point, the difference between the market price of oil and the set point will be tax revenue,  after that price point, there will be no need for the tax because the market price of oil will be high enough for green to make economic sense, like, say, last summer.  Finally, use the "carbon" tax on crude to fund green initiatives from green jobs to incentives for green builldings. 

But what about the economy? The trillions in stimulus (which are coming) will have to come from somewhere, might as well be a tax on crude which directly links to the problem. 

UPDATE: My friend Chris Hill at Construction Law wrote a very cogent challenge to the economics of the plan.

UPDATE: The Oil Drum had an answer--lower income taxes to compensate for gas tax.

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The USGBC membership approved the new version to the LEED rating system for high performance (“green”) buildings on November 18, 2008--LEED 2009. The rollout of LEED 2009 has been many months in the making, being originally released for comment in the spring, and for second public comment in August. The documentation for LEED 2009 is voluminous, comprising several .zip files available here.  

            The basic changes are as follows:

• Credit “Harmonization and Alignment”—In short, all of the LEED Rating Systems will have common prerequisites and credits so that there are fewer conflicting components across rating systems. The Credit Interpretation Rulings have been similarly harmonized.

• Predictable Development Cycle—LEED will be updated on a set schedule. Next time is in 2011.

• Credit Weighting—A “scientific” tool was used to reweight the credits in the LEED system based on a life-cycle analysis. Now, the total number of points has increased from 69 to 100. Certified requires 40 points, Silver 50, Gold 60, Platinum 80. A breakdown of each category is as follows:

The following notable changes were made to specific credits:

• SS Credit 2: Development Density & Community Connectivity
  • Credit 2 went from being worth 1 point to being worth 5 points
  • If the project is mixed use, it may be considered one of the ten basic services that are required to be located within ½ mile, as long as the service is open to the public.
• SS Credit 4.1: Alternative Transportation: Public Transportation Access
  • Credit 4.1 went from being worth 1 point to being worth 6 points
  • Walking distance is specified
• SS Credit 4.3: Alternative Transportation: Low Emitting & Fuel Efficient Vehicles
  • Credit 4.3 went from being worth 1 point to being worth 3 points
  • Discounted parking is available as an alternative to preferred parking for fuel efficient vehicles
  • Vehicle sharing is a new option
• SS Credit 4.4: Alternative Transportation: Parking Capacity
  • Credit 4.4 went from being worth 1 point to being worth 2 points
  • Discounted parking is available as an alternative to preferred parking for carpool/vanpool vehicles
  • An alternative track for mixed use buildings is specified
• WE Prerequisite 1: Water Use Reduction: 20% Reduction
  • 20% reduction in water use is now mandatory
• WE Credit 1.1: Water Efficient Landscaping: Reduce by 50%
  • Credit 1.1 went from 1 point to 2 points
  • Groundwater seepage is added as an alternative strategy
• WE Credit 1.2: Water Efficient Landscaping: No Potable Water Use or No Irrigation
  • Credit 1.2 went from 1 point to 2 points
• WE Credit 2: Innovative Wastewater Technologies
  • Credit 2 went from 1 point to 2 points
• WE Credit 3: Water Use Reduction
  • Credit 3 is now worth 2-4 points for a 30-40% reduction in water usage
• EA Prerequisite 2: Minimum Energy Performance
  • Specifies new compliance paths, including demonstrating a 10% improvement for new buildings or a 5% improvement for existing building renovations in the proposed building performance rating  compared to the baseline building performance rating per ASHRAE/IESNA Standard 90.1-2007

• EA Credit 1: Optimize Energy Performance
  • Credit 1 is now worth 1–19 Points (from 1-10 points in LEED 2.2)
  • 12% enhancement for new buildings is now the minimum, up from 10.5%
• EA Credit 2: On-Site Renewable Energy
  • Credit 2 is now worth 1-7 points (from 1-3 points in LEED 2.2)
• EA Credit 3: Enhanced Commissioning
  • Credit 3 went from 1 point to 2 points
• EA Credit 4: Enhanced Refrigerant Management
  • Credit 4 went from 1 point to 2 points
• EA Credit 5: Measurement & Verification
  • Credit 5 went from 1 point to 3 points
• EA Credit 6: Green Power
  • Credit 6 went from 1 point to 2 points
• MR Credit 1.1: Building Reuse: Maintain Existing Walls, Floors & Roof
  • Credit 1.1 went from 1 point to a range of 1-3 points for preserving 55%-95% of building components
• EQ Prerequisite 1: Minimum IAQ Performance
  • Requirement is now ASHRAE 62.1-2007

            LEED 2009 has attempted to fix one of my major criticisms, that LEED does nothing to prevent “green sprawl”—green buildings built on unsustainable sites—first voiced here. Although there is still nothing to prevent a “green” big box store surrounded by acres of parking lot on the urban periphery from being LEED certified, the increases in points to the Sustainable Sites credits are an attempt to give more weight in the LEED system to green buildings built in mixed-use community settings linked by public transit. 

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For a while now, my dear husband, Director of Planning and Urban Design at Barton Partners, Seth Shapiro has been going on and on that Mixed Use is the New Green.  His specialty is reconceptualizing malls into mixed use "places." His theory is that:

 While the proliferation of green building methodologies is to be commended, without a comprehensive evaluation of our land use patterns in conjunction with better building standards, we run the risk of not fully addressing the need for sustainable development.  Conventional suburban land use can achieve green status (even LEED gold) and yet, do nothing to reduce vehicle miles traveled or promote healthier lifestyles, which include the ability or at least have the option to walk from place to place.   Therefore, until we approach a planning policy that mandates mixed uses and appropriate densities around existing infrastructure, we will never achieve true sustainability, even if every building achieves the highest standards associated with Green Building.

This was all just happy pillow talk, until I read Kaid Benfield's blog post over at NRDCSwitchboard about the death of the American shopping mall, and the rise of mixed-use reenvisioning of malls. Guess the dear husband was right.

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Guest Post by Jonathan Lane
J.D. Candidate, 2010
University of Pennsylvania Law School
 

In an indication that green building policies will be subject to considerable attention in the development of energy and climate legislation in the new Congress, the High-Performance Buildings Congressional Caucus was formed this summer among members of the House of Representatives, and in contrast to many other such caucuses there are already efforts to make the caucus a substantive group that goes far beyond being a list of the names of interested members.

The High Performance Building Congressional Caucus Coalition,  consisting of over 40 industry groups, is working with the Caucus, co-chaired by Reps. Russ Carnahan (D-Mo.) and Judy Biggert (R-Ill.), "to promote and showcase best practices in building design and focus on issues reflecting all aspects of high-performance buildings." Including the co-chairs, there are 16 members currently in the Caucus, 15 Democrats and 1 Republican, though since, as a Carnahan spokesperson told Politico, "this is a largely bipartisan issue," there will be an effort to recruit more Republican members early in the new session of Congress.

According to a new article in Politico discussing the Caucus

 some caucus members are already considering introducing green-building legislation that experts expect say could include tax incentives and implementation of a smart-grid system… Caucus members are also eyeing economic stimulus or climate bills as potential vehicles for green measures… The green buildings issue will likely be one of the easiest energy-related ideas to move through Congress next year.

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I have been reading here, there and everywhere that green is a safe haven in this time of economic turmoil.  Today's information about Pennsylvania's Energy Fund proves otherwise. 

In the summer, Pennsylvania passed a $650 million progressive Energy Bill, with financial incentives for solar, high performance buildings, energy efficiency and so forth.  See article here by the folks over at Red, Green and Blue.

Everything seemed to be progressing nicely, setting the stage for an increase in renewable energy in the Keystone State.  Unfortunately, much of the $650 million Energy Fund was supposed to come from a bond offering.  Today, Pennsylvania state officials announced they were putting off floating the bond because the bond market has dried up.  Pennsylvania is not alone.  Apparently, New York/New Jersey Port Authority tried to borrow $300 million, and they got no takers.

This is very bad news for the sustainability community.  First, lack of access to financing makes governmental incentives almost impossible to fund, taking away one of government's best tools to use market drivers to encourage sustainable practices.  Second, lack of government incentives reduces the market of renewable providers.  Third, in a moment of low gas prices, lack of government incentives makes renewables less cost competitive.  In short, it is a lose, lose, lose situation.  

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I have written repeatedly about Fireman's Fund insurance products at GBL--see here and here. I got the opportunity to talk to Fireman's Fund represnetatives at Greenbuild about their goals for green building insurance. I learned some interesting things. First, their Greengard suite of products is doing very well. One innovative product they have brought on line is their Building Commissioning Coverage:

Following a covered loss, Fireman's Fund will cover the cost to hire a commissioning engineer to ensure that your building systems (HVAC, electric and plumbing) operate at peak performance and in alignment with one another. Plus, we will pay for the engineer to run a test and balance on your HVAC system, including heat, ventilation, and air conditioning -- whether or not it was directly involved in the loss.

This is very interesting coverage in that it links directly with low cost, low tech ways of enhancing the energy efficiency of buildings. The Fireman's Fund representatives and I also discussed the possibility of developing coverage for designers of green buildings. One of the biggest legal risks associated with green buildings is to designers, contractors and others involved in the green building team. These team members have control of separate components of the process of developing a green building which must work together to create a successful green project. If a team member fails to do his job properly, the risk exists that the building may not acheive certification. If money, time, financial incentives, etc. are lost, liability will have to be assessed. Fireman's Fund is looking for ways to quantify and allocate this risk to develop a liability product to offer green building professionals. I believe that such a product is very necessary as green building litigation, like Southern Builders v. Shaw Development, increases.

UPDATE: AIG has launched some green insurance products, including one that protects against adverse green publicity:

provides up to $50,000 in coverage, per occurrence, when a green building experiences adverse publicity. It also provides funds to employ crisis management specialists to manage adverse publicity; guide and counsel key company personnel; and provide other services to assist in restoring a company’s reputation.

UPDATE: Chubb has added some green coverage, including: 

• Business income and extra expense insurance, which can help companies with green properties quickly restore their operations after a loss. For example, an insured business can be reimbursed for the extra expense it incurred to purchase power from a public utility until its alternative power-generating equipment is repaired or replaced. 
• Reimbursement for the costs of hiring an accredited design and reconstruction professional, registration and certification fees, diverting recyclable debris after a loss to recycling facilities rather than landfills, and other green services.
• A period of restoration that recognizes that it may take longer to rebuild a green building to its pre-loss condition than a typical office building and, therefore, take longer to restore business activity and revenues.

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Change.gov, Obama's transition site, had a message from the President-Elect today about his plan for economic recovery. Top of his list was greening federal building stock:

First, we will launch a massive effort to make public buildings more energy-efficient. Our government now pays the highest energy bill in the world. We need to change that. We need to upgrade our federal buildings by replacing old heating systems and installing efficient light bulbs. That won't just save you, the American taxpayer, billions of dollars each year. It will put people back to work.

Interesting that green building infrastructure for the federal government is the first component in Obama's plan.

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In my Greenbuild post, I blogged:

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.

Carbon policy, in my opinion, is the 800 lb. gorilla in any discussion about environmental law, especially green building. According to the USGBC, in the United States alone, buildings account for: • 72% of electricity consumption, • 39% of energy use, • 38% of all carbon dioxide (CO2) emissions In other words, a whole lot of carbon. If carbon is valued, either through cap-and-trade or carbon tax, the whole landscape shifts. First, electricity generated through fossil fuel fired plants will get much more expensive, making energy efficiency and conservation techniques more cost effective. Second, buildings may have to pay for their emissions of CO2, making managing the emissions a key component in building construction and management. Green buildings, using less energy and emitting fewer carbon emissions will become more desireable as assets. Finally, green building which generate renewable energy thorugh photovoltaics, for example, may be more economically viable because they generate carbon offsets. Despite these obvious linkages, no speaker that I heard at Greenbuild really made the connection between carbon policy and green building. Too bad.

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On December 3, 2008, Portland unveiled its new suite of green building regulations based around a fee and rebate system.  My fellow green building laywer Chris Cheatham over at Green Building Law Update describes the "feebate" system:

Under the Feebate system, all new buildings built to code are assessed a fee.  If a project is built to LEED Silver, then the fee is waived and the owner obtains access to financing options.  Even better, if a project attains LEED Gold, the city writes the project owner a check! 
 

Although the Feebate system is a great idea, Oregon Live reports that not everyone was happy with the program, specifically the homebuilding industry, forcing Portland's mayor to exempt homes from the feebate program

New homes would not get the new fees or rebates. But the city would ask of the homebuilding industry: Meet a citywide goal of getting more new homes certified green each year, or else Portland would impose a fee-and-rebate system to make builders comply.

This is a pretty big compromise, and an interesting precedent for cities looking to emulate Portland's system.  For example, in Philadelphia, retrofitiing and building homes is a large component of the building stock.  If homes are exempted, what impact will that have on the overall efficacy of green building programs? 

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In my post about my experiences at Greenbuild, I blogged:

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.

At Greenbuild I spent a long time talking to representatives of the National Association of Home Builders, NAHB, about their standard for green residential home building--NAHBGreen.  NAHBGreen competes directly with the USGBC's newly minted LEED product for residential buildings, LEED For Homes or LEED-H.

Both programs have a similar structure.  Both programs have a point based system which allocates points for site selection, resource conservation, energy efficiency, water efficiency, indoor environmental quality and homeowner education. 

As currently developed, residential buildings following LEED-H will probably be "greener."  LEED-H has a component for "Location and Linkages", which includes proximity to transit, infill development, adjacency to open space and access to community resources like shopping, etc. LEED-H has prerequisites which mandate minimum requirements for durability, material efficiency, erosion controls and other components. 

However, in talking with the NAHB representatives at Greenbuild, I found out that NAHB is doing several things to enhance the NAHBGreen product.  They are working with ANSI the standards body, to certify the NAHBGreen standard.  The ANSI-certified new NAHB standard is going to have stricter requirements for energy efficiency and other green components.  Finally, the registration and verification cost for becoming NAHBGreen certified will be much less than LEED-H.  In short, the new NAHBGreen is seeking to compete with LEED-H both on quality and on price. 

It remains to be seen what the new NAHBGreen will look like, but if it is equally robust and at a lower cost, it will likely give LEED-H a run for its money.
 

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Recently, I wrote at Greenerbuildings.com about how legal issues have largly been ignored by the USGBC.  I first posted an article about the legal considerations for green buildings in July 2007.  Below is an update to that article.

Green building has hit the real estate scene remarkably quickly, but little attention has been paid to the legal implications of this new area. As green building and ecological sustainability considerations are becoming more prevalent, new regulations are being enacted by local governments around the country and old regulations are being adapted to embrace green building practices. State, local and federal dollars are being made available for green building projects through tax incentives and grants. Insurance companies and financiers are making products and instruments for green building projects available. As a result, there are new legal issues to consider when embarking on a green building project, including: drafting construction and design contracts that incorporate green building standards; navigating the local building and zoning approvals processes and securing public financing; negotiating with insurance and financial institutions and resolving disputes over green building projects that fail to achieve their sustainability goals.

Green building projects large and small must obtain permits from local governments, but the regulatory environment is in flux. In many places the zoning and building codes were developed in response to the health and safety issues of a century ago, and certainly not developed with green building in mind. In others, due to lack of action on the federal level, local governments are creating new regulations to encourage sustainable development. As old regulations are being adapted to new technologies and new regulations are developed, attorneys can provide critical guidance on the local regulatory landscape as part of the planning for a green project.

Furthermore, private and government entities are providing significant financial incentives to encourage green building. For example, Gov. Edward G. Rendell's newly released energy independence strategy earmarks $150 million ($50 million for grants; $100 million for loans) for green building projects. Fireman's Fund offers discounted pricing for building owners who commit to greens standards, and provides specialized insurance to allow for repair or replacement of green building projects in the event of a loss. Lawyers have a unique role in identifying and securing access to financial incentives and risk management tools.

Participants in the development process will require new contracts to ensure compliance with green building goals. Most of the entities establishing criteria for the performance of green building are private, nonprofit organizations like the United States Green Building Council (USGBC). Many local regulations and incentives for green building are directly linked to these certifying criteria, particularly USGBC's Leadership in Energy and Environmental Design (LEED) standard. If a project must achieve a certain LEED or similar rating to qualify for funding or approval, the construction and design contracts should reflect that ambition.

Finally, although the green building movement is in its halcyon days, new expectations will inevitably lead to conflict. A multimillion-dollar development project will fail to gain the LEED credits required to secure a government grant, and litigation will doubtless ensue.

These are some of the legal considerations in building green. Considering the legal issues should not be seen as an impediment to green building, but rather as a way to manage risk and to proceed with a smooth development process.

Parts of this post were previously published in the Legal Intelligencer.

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