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

LEED-ND is one of the newest members of the LEED family.  According to the USGBC,

The LEED for Neighborhood Development Rating System integrates the principles of smart growth, urbanism and green building into the first national system for neighborhood design.

Neighborhoods or communities apply to be LEED-ND certified, like buildings, and are evaluated by the USGBC and certified in a similar fashion. 

Sean Suder writes about alleged new legal issues arising with LEED-ND, the LEED product for Neighborhood Development.  According to Suder,

Those government planners and legislators currently responsible for imparting their value judgments will be forced to compete with those of the USGBC and the invisible hand of the market. Urban planning at the governmental level may become subordinated to these other forces.

In essence, Suder creates a bogeyman of a private entity setting standards for how neighborhoods are created and what rules people have to follow within them:  

The decisions made by the USGBC will not impact just one building, one developer or one tenant. Instead, LEED-ND has the potential to impact entire communities well beyond the development that is being certified. The USGBC has been charged to do so by the market, outside of the purview of elected officials or government planners and without any legal oversight or review.
 

If all Americans lived in traditional urban environments where zoning and land use decisions were made by government entities, I might agree with Suder's position.  But it has not been that way for 100 years.  Developers establish "communities" with standards for what color houses must be painted and how wide the driveways can be.  Enforcement of these decisions are then passed on to non-profit--but private--homeowners associations.  According to Evan Mackenzie, in his excellent book Privatopia, in 1960 there were fewer than 500 homeowners associations, by 1992 there were 150,000 homeowner associations governing the land use and property rights of 32 million Americans. Land use decisions and requirements have long been made by market-driven, private entities.  LEED-ND is nothing new in this regard.

LEED-ND is a development tool.  Developers will incorporate LEED-ND principles into their covenants and restrictions when creating LEED-ND communities, much as they have new urbanist principles.  Cities may also choose to adopt these principles, but the citizens will be protected by all of the due process requirements which inure when land use decisions are made by municipal governments.  Like the bogeyman in a child's closet once you shine a light on it, it disappears.

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The New York Times reported that Toronto was mulling a mandatory green roof by-law.  Developers in Toronto objected to the green roof mandate, arguing:

 that it would scare away investment due to the high cost of green roofs. Saying green roof installation should be voluntary, building industry representatives told The Globe and Mail that such add-ons could increase construction costs by $18 to $28 a square foot.

In Philadelphia, City Councilman Curtis Jones proposed tying an already existing  ten-year property tax abatement to green building requirements.  Building Industry advocates and Mayor Nutter's office made the same argument that the Toronto developers put forward:

"Restricting the abatement program . . . would likely have the effect of inhibiting development when we need it most," Andrew Altman, deputy mayor for planning and economic development, told Council this month. 

The trouble with these arguments is that they are exactly that---arguments with no basis in fact.  The problem? No facts.  There is no study which can be pointed to, no analysis which has been done which attempts to quantify the effect of green building regulation on development.  Do green building regulations inhibit development? Do they encourage green development? No one really knows for certain. 

In this "money constrained economy" it may be easier for critics of green building regulations to wave the red flag of inhibiting development to prevent further strictures from being put in place.  To effectively counteract this argument, a study needs to be undertaken which compares the development rates in comparable cities which have green building mandates (like Boston or Washington DC) with those that do not.  Controlling for other factors (population, pre-regulation development rates, etc.), it would provide a solid factual foundation for policymaking in this area.

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The International Code Council, the non-profit organization which develops and maintains the International Building Code, announced on Earth Day that they were creating a new "green" commercial building code which would be in line with the ICC's other building code products. 

ICC codes are "consensus" based codes, so the process for developing the code involves:

• Convening a select drafting committee
• Inviting public comment on the initial draft
• Placing the final draft into the ICC code development process

This code may address the common criticism of LEED and other green building standards that they are not designed to be incorporated into building codes, and that they are not specific enough to be used as legal platforms. 

ICC is not the first organization to attempt to create a building-code friendly standard for green.  ASHRAE convened a committee to develop Standard 189.1 several years ago 

Proposed Standard 189, Standard for the Design of High-Performance Green Buildings Except Low-Rise Residential Buildings, will provide minimum requirements for the design of sustainable buildings to balance environmental responsibility, resource efficiency, occupant comfort and well-being, and community sensitivity. Using USGBC’s LEED Green Building Rating System, which addresses the top 25% of building practice, as a key resource, Standard 189P will provide a baseline that will drive green building into mainstream building practices.

Standard 189P will be an ANSI-accredited standard that can be incorporated into building code. It is intended that the standard will eventually become a prerequisite under LEED.
 

After releasing a draft standard in 2007, the ASHRAE dissolved the original committee in late 2008, and reconstituted it at the beginning of 2009.  There was a great deal of scuttle that the committee was dissolved because major builders, manufacturers and developers did not have enough of a say in the development of the standard. 

It will be interesting to see if ICC will be more successful that ASHRAE in developing a commercial green building code, and whether that code will, in fact, be green.  ICC developed a residential green standard with the National Association of Home Builders, and the criticism of the NAHB Green standard is that the requirements are not as stringent as LEED for Homes.  We shall see if the ICC green commercial standard will incorporate the same green requirements as LEED-NC. 

Finally, even creating an ICC green code will not solve the issue expressed by code officials that there is a lack of expertise and training in green construction.  In fact, if the ICC code is developed and adopted in municipalities and states across the country, a much greater investment will be required in training, education and expertise to ensure that the codes are implemented and enforced properly.

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ACE announced last week that they have created a Green Contractor Insurance Program.  People in the green building risk world have speculated that insurance companies would begin to offer green professional liability products.  The ACE product does not cover professional liability issues, but instead is a pollution liability insurance product. According to ACE

Contractors Pollution Liability program, which addresses the growing risks and potential exposures faced by contractors as they begin to access federal stimulus dollars and experience increased construction activity. This green-specific insurance program is designed to cover contractor and sub-contractor environmental and pollution-related exposures. The product can also be tailored for Leadership in Energy and Environmental Design (LEED)-certified building projects as an Owner-Controlled Pollution Insurance Program (OCIP); a Contractor-Controlled Pollution Insurance Program (CCIP); or a standalone Contractors Pollution Liability Project placement.

The world is still waiting for a professional liability policy to cover green services by architects, contractors and engineers, but the insurance industry may be closer to determining the parameter of risk that green represents.  I have been in contact with ACE, and will find out more about the parameters of this new product.

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Many months ago I wrote about the need for a floating gas tax to stabilize fuel prices, allow predictability and incentivize eco-friendly developments.  Now Ford chairman Bill Ford agrees.

Earth2tech reported:

“If prices are gyrating wildly,” he said, it becomes extremely difficult to know whether the company is planning the right vehicle or technology (if you’re operating under the assumption that automakers should supply what the market demands, and that there’s a lot less demand for fuel-sippers when gas is cheap). Ford noted that in the EU, diesel fuel “became an easy decision” for drivers after the government decided to make it much cheaper than gasoline.
 

When major environmental regulations were passed in the early 1970s, there was a lot of hand-wringing over how it was going to destroy the economy.  Now, with cap-and-trade, similar arguments are being made. Senator James Inhofe said yesterday, about EPA's declaration of greenhouse gases as harmful to human health:

This move by EPA will unleash a torrent of regulations that will destroy jobs, harm consumers, and extend the agency’s reach into every corner of American life.

But it turns out, in capitalism, the rules of the game don't matter, as long as they are predictable. So Obama should implement cap-and-trade, and those companies that can adapt and thrive in the new regulatory environment will survive.  And those that cannot, will not, but others will take their place.  I predict that with the attitude expressed by Bill Ford, Ford will survive...and the others should not.  

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Today, the EPA briefed Congress on its intent to

formally declare carbon dioxide and other heat-trapping gases to be pollutants that threaten public health and welfare.

This declaration clears the way for EPA to regulate greenhouse gases through the Clean Air Act and other regulatory mechanisms. 

According to the USGBC, in the United States alone, buildings account for 38% of all carbon dioxide (CO2) emissions.  Even if these statistics are wrong by HALF, that is still 20% of carbon dioxide.  Yet many cap-and-trade and other carbon management programs do not incorporate carbon regulation of buildings because they are categorized as "indirect" and therefore more difficult to calculate and regulate.  There is also the argument that the emissions from "direct" sources like power plants are already regulated, and therefore it will be easier to regulate their emissions.

However, the health and safety of buildings is already regulated by energy codes, fire codes,  building codes, zoning codes, etc.  If greenhouse gases are a threat to human health, regulation of greenhouse gas emissions from buildings is as critical as protecting from the risk of fire. Moreover, if a cap-and-trade system is put in place, carbon credits will be very valuable.  If reductions in greenhouse gases can be generated by high performance building practices, this value should be available to those developers who choose to pursue those solutions.

Today's announcement by the EPA will lead to regulation by the executive branch, or spur Congress to act to regulate greenhouse gases.  The regulatory solution must include a regualtory mechanism for managing the greenhouse gas emissions of buildings.

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Today, the EPA briefed Congress on its intent to

formally declare carbon dioxide and other heat-trapping gases to be pollutants that threaten public health and welfare.

This declaration clears the way for EPA to regulate greenhouse gases through the Clean Air Act and other regulatory mechanisms. 

According to the USGBC, in the United States alone, buildings account for 38% of all carbon dioxide (CO2) emissions.  Even if these statistics are wrong by HALF, that is still 20% of carbon dioxide.  Yet many cap-and-trade and other carbon management programs do not incorporate carbon regulation of buildings because they are categorized as "indirect" and therefore more difficult to calculate and regulate.  There is also the argument that the emissions from "direct" sources like power plants are already regulated, and therefore it will be easier to regulate their emissions.

However, the health and safety of buildings is already regulated by energy codes, fire codes,  building codes, zoning codes, etc.  If greenhouse gases are a threat to human health, regulation of greenhouse gas emissions from buildings is as critical as protecting from the risk of fire. Moreover, if a cap-and-trade system is put in place, carbon credits will be very valuable.  If reductions in greenhouse gases can be generated by high performance building practices, this value should be available to those developers who choose to pursue those solutions.

Today's announcement by the EPA will lead to regulation by the executive branch, or spur Congress to act to regulate greenhouse gases.  The regulatory solution must include a regualtory mechanism for managing the greenhouse gas emissions of buildings.

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Most people are thinking about taxes this week.  Today is tax freedom day, the day on which most Americans have earned enough money to pay their taxes for the year, and Wednesday is tax day. In the spirit of this week, a post about taxation. 

How do you influence people to use reusable grocery bags instead of plastic ones? 

There are a few options:

1) Ban customers from using plastic bags

2) Ban stores from providing plastic bags

3) Give away or subsidize reusable bags to customers

4) Give away or subsidize reusable bags to stores

5) Educate stores and/or customers on the benefits of reusable bags

6) Charge customers a tax for the privilege of using plastic bags

7) Charge stores a tax for the privilege of using distributing plastic bages

The first two are traditional, command-and-control regulations.  "Thou shalt not....".  Historically, this had been the model of environmental regulation.  3 and 4 are incentives.  During the Bush Administration, market based incentives and voluntary programs were very much in vogue for environmental protection. 

I believe that all four have their place.  For big, intractable problems with clear environmental consequences, command-and-control is the only way to go.  Incentives are best utilized to correct for market failures, like making solar or wind power more affordable because carbon is not priced in the cost of petroleum.

But I think five through seven--education and taxation are underutilized tools of environmental policymaking.  Miley Cyrus sporting a reusable shopping bag in the new blockbuster film is a way of educating and influencing public action.  Make the reusable tote the new "it" bag.  The green building equivalent is providing education on green building practices, and for government agencies to build green and widely promote their efforts.

Taxation is another great way to influence public choices. By taxing a plastic bag, even a small amount, people are penalized for their anti-social behavior.  We do it with cigarettes, why not plastic bags? Or stick construction? By making alternatives available at the same price as the tax--a 50 cent tax for each plastic bag, and a reusable tote at the same price, people will be more likely to choose the reusable bag. Combined with education on better choices, a penal tax is a very strong policy lever. Portland has sort of done this with the feebate structure, charging builders who want to build traditionally, and remitting that fee for green construction.  But I have yet to see a green building program which taxes builders for traditional construction.  The tax could be tied to the increased public resources needed to service traditional buildings--stormwater management, electricity, etc.

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Of the 87,900 government units in the United States as of June 30, 2002, 35,356 are special purpose local government entities. 

According to the Census, special purpose entities are defined as 

[I]ndependent, special purpose government units (other than
school districts). They exist as separate entities, have substantial fiscal independence, and have administrative independence from general purpose governments or function for multiple governments.

The number of special purpose entities is the fastest growing government class, with the number of special district governments rising nearly three-fold, from 12,340 in 1952 to 35,356 in 2002. 

Many of these special purpose entities touch green building considerations in some way

Almost one-fifth of all special district governments perform a natural resources function, including such activities as drainage and flood control, irrigation, and soil and water conservation. The next most frequent function performed by such units is fire protection, followed by water supply, and housing and community development.

Despite the growth in power and importance of these special purpose entities, very little attention has been paid to how to "green" the functions under their authority. Moreover, there is clearly a great need to integrate the efforts of entities in charge of water, housing, development (not to mention transit agencies) with the overall efforts of traditional government units to incentivize green buildig practices.  Finally, as the census definition recognizes, these entities are often independent from traditional government entities with their own fiscal allocations.  Often their jurisdictions overlap (and are sometimes at odds with) traditional government entities.

If we can effectively harness the power of these special purpose entities to assist in the greening of our communities, it will be a great point of leverage.  Particularly where these entities form an intergovernmental function, there is an opportunity to create green regions, not just green communities. 

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I have written before about the conflict between local and federal regulation of green building.  But the issue of jurisdiction is not restricted to intergovernmental conflict.  At the federal level,  resources for green building are being largely handled by the Department of Energy, and not by the Environmental Protection Agency. 

The DOE runs the Energy Star program, for example.  In its page on "buildings" the DOE states:

The Department of Energy, through the Office of Energy Efficiency and Renewable Energy’s (EERE) Building Technologies Program works closely with the building industry and manufacturers to conduct research and development on technologies and practices for energy efficiency. The Department also promotes energy and money-saving opportunities to builders and consumers and works with state and local regulatory groups to improve building codes and appliance standards.

As you might expect, the DOE information is all about energy efficiency.  By contrast, the EPA has an informative page about green buildings, including information on water efficiency, sustainable communities, indoor air quality, waste reduction, toxics reduction and other considerations.  In short, the EPA takes into consideration the multi-faceted ways in which buildings impact the environment. 

Why should you care? On the EPA page regarding funding for green building projects it states:

EPA does not currently provide funding to support green building projects.

In the stimulus bill, which, you recall had $60 billion for "green" programs, the EPA was allocated exactly $0 for green building, and a measley $7 billion over all.  Don't believe me? Look at the EPA's own assessment of the stimulus money.  By contrast, the DOE was allocated $32.7 billion, with $5 billion for weatherization alone. 

The government agency charged with protecting the environment was essentially shut out of the "green" stimulus bill, and as a result, I wonder whether the overall environmental impact of buildings will be promoted effectively through research, incentives and other mechanisms.

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I love social media.  I update my Facebook status regularly (Shari is working on a blog post) and I tweet often (I'm @sharishapiro for anyone who wants to read my tweets). 

But recently I have noticed the use of Web 2.0 for effective policy making tools.  For example, the San Francisco Chronicle reported that Google is using its Google Earth tool in conjunction with information from the Natural Resources Defense Council and other environmental groups to map where renewable energy projects should be sited to avoid environmental externalities, like invading endangered species habitats.   Everyone I know uses the DSIRE database for energy efficiency and renewable energy resources.  The Department of Energy has a number of interactive tools on energy efficiency and energy codes.  The NRDC recently created a neat tool which uses 3-D modelling to reenvision dead spaces as vibrant, multi-use places. 

We need a great set of Web 2.0 enabled tools to bring together the activities which are happening in the green building space, and to promote collaboration among the the great green practitioners nation and even worldwide.  My vision is to establish a web portal with green building regulations, green building case studies, best practices, wikis, and many other features.  I have a new mission, to create this policy resources powered by Web 2.0 and bring together the many people doing great work in this area. 

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