ANSI Approves NAHB Green Standard For Residential Construction

Today, the American National Standards Institute approved the National Association of Home Builders' green residential home standard. 

According to Ron Jones, the head of the committe which developed the standard.

The National Green Building Standard is now the first and only green building rating system approved by ANSI, making it the benchmark for green homes

The 2008 draft standard is available here

A comparison of LEED for Homes and NAHB Green is available here


The Best Way To Spend $10

Give up two days worth of lattes or a new lipstick and buy the paperback Climate Solutions by Peter Barnes from Chelsea Green publishers instead.

The book is an easy to read, "citizens guide" to saving the planet through efficient regulation.  Barnes explains, in broad enough terms that everyone can understand (and pictures!) climate policy, including a very accessible explanation of the tragedy of the commons. 

Barnes also details four possible regulatory solutions, including cap-and-trade, carbon tax, and Barnes' preferred method, cap-and-dividend. In a cap-and-dividend system, the additional payments for carbon are returned to the people through a dividend payment, much like Alaska does already.  In addition to the simple, but not simplistic, explanations of climate policy, Barnes includes a well researched list of resources for additional information.

Someone once told me that if you truly understand something, you can explain the most complicated concepts in a simple enough way that everyone can understand. Barnes strips away the technical language and lawyer-speak generally associated with books discussing climate policy, but does not dumb down the concepts in the process.  Since we will all have to be mobilized to make carbon regulation a reality it is critical that Barnes created a guide on this topic accessible to all citizens.

Once you are done with Barnes' book, do not keep it.  Give it to your neighbor, your high school aged child, or the person you sit next to on the commuter rail.  It just might help make carbon regulation a reality. 

Article on Business Benefits From Green Regulations

There was a nice article on Triple Pundit this AM on the positive impacts on business that the California green regulations have had. 

For Green Buildings, Change Has Already Come To Washington

Long the city of high crime, poverty and neglect by the federal government which calls it home, Washington D.C. has passed some of the most progressive sustainability regulations in the country since 2006. For example in December 2006, Washington mandated, among other things, that private buildings 50,000 square feet or larger have to submit a checklist of green features by 2009, and meet LEED NC 2.2 standards by 2012. In addition to green building regulations, Washington has enacted comprehensive sustainability legislation, including a Clean and Affordable Energy Act, a Green Summer Jobs bill, a Climate Initiative and stormwater and water quality regulations.

I spend a lot of time counseling legislators on how to get legislation -- often far less comprehensive -- enacted, so I wanted to speak to the team behind the Washington legislation to find out what was working and what was not, and how it all got legislated in the first place. Alan Heymann, public information officer for the District Department of the Environment (DDOE), set up a conference with Brendan Shane, director of the Office of Policy and Sustainability, Shane Farthing, development coordinator, and Stella Tarnay, green building coordinator, for an inside look at the state of sustainability in the nation's capital.

Read the rest of this article at

Rountable On Shaw Development v. Southern Builders

I participated in a roundtable on Shaw Development v. Southern Builders this morning with some great green building professionals courtesy of Vik Duggal and Kcast.  You can listen to it here.

Obama/Biden Energy and Environment Plan

Everyone will be watching the inauguration today.  In honor of our new president here is the link to Obama's energy and environment plan now on

Happy inauguration day!

Konstructr Podcast With Shari Shapiro

I spoke with Vik Duggal of about getting money for energy efficiency, green building litigation, carbon offsets and more. Available at

Shortchanging The Environment--Why The New Stimulus Bill Doesn't Get Us Where We Need To Be

Yesterday, the house came out with its allocation of the American Recovery and Reinvestment Plan, or the new stimulus package.  This package was supposed to be "green". It is not.

The best indication of this is that the allocation for public transit, $10 billion, was $5.6 billion less than the allocation for a $500 increase in Pell higher education grants. I do not think that higher education grants are wrong, but a $500 increase in individual Pell grants just isn't going to have the impact that, say, $26 billion in public transit funding would have for the environment, jobs, dependence on foreign oil, etc. 

The total allocated dollars for green programs is $95 billion out of $550 billion in expenditures (and another $275 billion in tax cuts). Of that:

Green Stimulus Allocations $b
Energy Transmission 32
Energy Retrofits 22
Public Infrastructure Energy Savings 31
Public Transit 10
Total 95

As the Green Wombat wrote

It’s a start, but that’s less than 7% of the entire stimulus package (or, about enough to pay for the Iraq war for five months, or somewhat more than what the federal government is spending to bail out Bank of America).

Green Wombat calculated the allocation for green as $54b, but even at my more generous $95b, it is simply not enough to be game changing.

Here is  a handy chart with all of the allocations from the New York Times blog.

Stimulating Smart Growth--Advancing the Anti-Sprawl Agenda

Kaid Benfield and the Smart Growth group at the NRDC introduced a neat visual tool for reimagining sprawl development into multi-purpose places. Using photo-editing software,

the visionaries of Urban Advantage have transformed pictures of communities from all over the country to show how they could become more pleasant, walkable neighborhoods.

There are reimagined designs for 70 communities nationwide available for browsing.

The new tool and conversations I have been watching on Twitter got me to thinking about how Obama can use the stimulus plan to stimulate smart growth development.

1. Invest in transit--One conversation on Twitter was discussing whether Detroit can be retooled to produce mass transit instead of single occupancy vehicles. While I think this might be a stretch, before WWII, the United States retooled many of its plants to make the articles for war very quickly.  I would love to hear more comments about this idea.

2. Invest in cities--The stimulus money should be invested in our urban centers, making them safer through improved infrastructure, more beautiful and sustainable through urban greening projects and more livable through pedestrian and bicycle improvements.  Beyond the built environment, Obama could also invest in schools and libraries, making these amenities rival their suburban counterparts.  This would not only make for smarter growth, but also provide jobs for women and minorities not directly benefitting from the green jobs major sectors like construction and engineering.

3. Invest in planning-- New Urban News has a great idea. Obama should invest in planning projects which would support jobs now and plan for smart growth into the future.

Some federal dollars presently used for transportation and other purposes could pay for regional planning that promotes tight-knit development and preserves open land.

4. Invest in smart code drafting--Redrafting building and zonign codes is an expensive and labor intensive process.  But, by reforming codes to make them more energy efficient and smarter, like investing in planning it would support jobs now and plan for smart growth into the future, not to mention creating a more green built environment.


When Green Goes Bust

Bankruptcy and forclosures pose a few unique risks for green building. 

One complication is the significant tax credits and other public financing involved in green construction. This week, Shaw Development LLC, the developer of Captain's Galley development  in Maryland and the plaintiff in what has been termed the first green construction litigation, declared Chapter 11 bankruptcy.  Stephen DelPercio at Green Real Estate Law Journal argues that the contractor responsible for lost tax credits (if they could be shown to have led to the bankruptcy) could be responsible for significant consequential damages including

decrease in sales prices during the course of the automatic stay that is imposed over the property, any other sales that were lost due to the bankruptcy reorganization, and associated professional fees and other carrying costs that the owner/trustee incurred during the course of the stay.

In addition to this risk, bankruptcy of green projects may be complicated by their connection to the renewable energy markets.  For example, a development installs a solar array and arranges to sell its renewable energy credits (RECs) to a utility. The utility uses the REC purchase to fulfill its mandatory obligation to purchase alternative power. If the development goes bust and no power is produced, the utility and/or state/local government may come calling.

Finally, green projects often involve the utilization of high maintenance components, like vegetated roofs.  If these facilities are not properly maintained due to bankruptcy or foreclosure, third parties harmed by poor maintenance (collapsing roofs, for example) may have nothing but an insolvent party for recourse.

Pennsylvania Launches Energy Fund Programs

Today the Pennsylvania DEP released the guidelines and application for the Small Business Energy Efficiency Grant Program. The program provides Pennsylvania small businesses with the opportunity to receive a 25 percent reimbursement matching grant of up to $25,000 to implement qualified energy efficiency projects.  The Small Business Ombudsman’s Office will be accepting applications for Small Business Energy Efficiency grants from today until May 1, 2009, or until the funds are exhausted, whichever comes first.


Obama Stimulus Plan and The Rule of The First Dollar

I look at a lot of green building regulations, and I have devised the rule of the first dollar--regulators should be putting the first dollar of tax payer money into the most cost-effective initiative, to ensure that those initiatives that have the greatest cost-benefit calculus get funded first and most robustly. 

This week Obama has come out with some of the details of his green financial stimulus plan. In Obama's speech yesterday, as well as in his Obama/Biden plan unveilied during the campaign, he proposed

  • modernizing more than 75% of federal buildings
  • improving the energy efficiency of two million American homes

He also outlined the benefits of these programs

[S]aving consumers and taxpayers billions on our energy bills.  In the process, we will put Americans to work in new jobs that pay well and can’t be outsourced – jobs building solar panels and wind turbines; constructing fuel-efficient cars and buildings; and developing the new energy technologies that will lead to even more jobs, more savings, and a cleaner, safer planet in the bargain. 

Energy efficiency efforts work with the rule of the first dollar--according to Energy Star estimates,

Compared with standard homes, ENERGY STAR qualified homes use substantially less energy for heating, cooling, and water heating-delivering $200 to $400 in annual savings. Over the average 7 to 8 years you may live in your home, this adds up to thousands of dollars saved on utility bills.

In this study, the RAND Corporation analyzed California's energy efficiency initiatives and concluded that

In California, improvements in residential energy intensity and energy prices have reduced the average energy expenditures per capita in real terms since 1980...Low-income households derive the greatest benefit from reduced energy expenditures.

RAND also noted

The most important benefit for California is the impact of energy efficiency improvements on air pollution emissions. If energy intensity in the state had remained at 1975 levels, air emissions from stationary sources in the state would be approximately 50 percent greater than current levels.

Energy efficiency measures equalled savings and environmental benefits.

The analysis with respect to greening federal buildings is similar.  According to the Alliance to Save Energy

The federal government is the nation’s single largest energy consumer and energy waster. In 2005, the federal government consumed about 1.6 quadrillion Btu (quads) of energy at a cost of $14.5 billion. This is 1.6% of all energy used in the U.S. American taxpayers pay about $4 billion annually just to heat, cool, and power the 500,000 federal buildings and facilities.

So, each dollar saved on energy on  public buildings is a taxpayer dollar saved, and a reduction in the quantity of resources requried to heat, cool, and power those facilities.

The analysis on the tax cuts, however, is not as sanguine.  According to Nobel-Prize winning economist Paul Krugman

First, if the government spends money, that money is spent, helping support demand, whereas tax cuts may be largely saved. So public investment offers more bang for the buck. Second, public investment leaves something of value behind when the stimulus is over.   

Krugman argues that tax cuts in the first year may be beneficial in providing a quick hit to the economy, whereas public works projects take time to get started, but Obama's proposal of 40% tax cuts seems like too much. Obama can see similar upfront benefits from providing food stamps and unemployment benefits, for example.  Alternatively, he could provide vouchers for energy efficiency improvements through private vendors. 

In short, green is green, tax cuts not so much.

Tiny Rays Of Light--Good News For Green Building

Over my first few cups of coffee this morning, I had an odd sensation.  What could it be? That slightly warm feeling eminating from my heart--oh, now I remember, hope! That's what it is.  Not a lot of hope (although as I write this the dow is up 133 points), but certainly a few rays...

1. Industry organizations and utilities are embracing energy efficiency measures, including enhancing building code requirements.  According to

Environmental and energy groups, including the association that represents almost 70 percent of the country's utilities, are urging swift passage of a stimulus package that includes provisions for energy efficiency programs that they say would help jumpstart an economic recovery through the creation of green jobs.

Most significant from a green building law perspective, is that these groups are advocating for block grants to state and local governments to "be contingent on adoption of regulatory changes that make building codes tougher — and "major investments" in energy efficiency projects by utilities easier. "

2. As I predicted in my post Pink is the New Green, energy efficiency is at the top of the legislative agenda. It is being incorporated into the stimulus package, and local municipalities are embracing it as well.  Washington DC updated its building codes to ASHRAE 90.1 2007 and included some new green provisions. 

3.  The Bicycle Commuter Act passed--A benefit originally proposed seven years ago by .S. Rep. Earl Blumenauer, D-Ore. provides $20/month to those who commute primarily by bicycle.

Of course, we are still waiting to see what the green provisions of the economic stimulus package will be, but these actions are very positive signs of change in our national zeitgeist.  

State Preemption--When state law kills local green regulation

I have written a lot about federal/local conflicts in green building regulation, particularly in regard to AHRI v. City of Albuquerque.  Today I want to address state law preemption--when state laws prohibit localities from regulating green.

A great example of this is in the Commonwealth of Pennsylvania where I practice law. 

In 2004, Pennsylvania adopted the Uniform Construction Code (UCC), a common building code for all municipalities in Pennsylvania. 


The UCC in itself does not prevent local governments from passing green building regulations related to the building code as long as:

  • the requirements are equal to or more stringent than the UCC,
  • the local government secures approval from Pennsylvania’s Department of Labor and Industry,
  • the local government provides appropriate public notice

L&I provides a web overview of the requirements for making changes to the UCC here.


The legal requirements are Section 503(b-k) of Act 45, 403.102 of the UCC Regulation, both available at PA L&I website.


PA L&I will evaluate the proposed change based on the following criteria:
     (i) that certain clear and convincing local climatic, geologic,
     topographic or public health and safety circumstances or conditions
     justify the exception;
     (ii) the exception shall be adequate for the purpose intended and
     shall meet a standard of performance equal to or greater than that
     prescribed by the Uniform Construction Code;
     (iii) the exception would not diminish or threaten the health, safety
     and welfare of the public; and
     (iv) the exception would not be inconsistent with the legislative
     findings and purpose described in section 102


However, certain court decisions have made it questionable whether green building goals would satisfy the “clear and convincing” standard to justify the exception.  In Schuylkill Twp. v. Pa. Builders Ass'n, 935 A.2d 575 (Pa. Commw. Ct. 2007), the Commonwealth Court held that townships must prove that “the conditions there were so different from the statewide norm that the uniform standards were not appropriate to use in the Township,” in order to satisfy the “clear and convincing” standard for an exception to the UCC.  

This case is currently up on appeal before the Pennsylvania Supreme Court to determine whether the Pennsylvania law implementing the UCC requires a municipality to prove that there are unusual local circumstances or conditions atypical of other municipalities to justify an exception to the UCC.


If the Supreme Court determines that atypicality is required, local governments would have a very difficult time passing green building standards which required building practices different from those in the UCC--it would be very hard to argue that the benefits of green building any different in one township than any other in Pennsylvania.