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

Non-unionized workers on a green roof project in Minneapolis have filed a claim with the NLRB, arguing that they are being paid as landscapers, not roofers, making $20 less an hour than their roofing counterparts.  Moreover, they claim that proper safety precautions are not being taken. 

An attorney for the workers this month filed complaints with the National Labor Relations Board (NLRB), alleging that Stock retaliated after they complained and tried to unionize.

The president of the Frindley Company, according to  the Minneapolis Star Tribune:

He defends paying them landscapers' wages, saying a lot of green roof work is landscaping.

Like unions refusing to install waterless urinals, there are a lot of potential labor relations questions which emerge with new green building techniques.

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Shaw Development v. Southern Builders, the first "green" lawsuit, caused a lot of legal handwringing in 2008, with many predicting scads of green building litigation to follow.  Now, almost halfway into 2009 we have seen...nothing.  I have a few theories:

1. Green building is a tiny (though growing) proportion of overall building--While very newsworthy, green building comprises only a tiny proportion of overall building.  According to McGraw Hill, just 2% of construction is green, although that looks to grow over the next few years. 

2. Owners are too afraid to measure their building performance--In order to prove breach of contract or failure of products, performance needs to be measured.  But if owners show that their buildings are not acheiving the energy efficiencies or cost savings or occupant health benefits promised, the owners themselves may be open to suits from occupants, investors, etc.  Better to keep head in the sand.

3. Economic downturn--As builders, developers and management companies struggle just to survive, companies do not have the extra capital to spend on expensive litigation.

4. It's just a matter of time--Green buildings are too new and the technologies have not been in place long enough to fail.  As more green buildings are constructed, more litigation will develop.

Any other theories? 

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The Waxman-Markey Climate Change bill was voted out of committee May 22, 2009, setting the stage for the first national climate change legislation in the United States.  A nice piece on it was done by Treehugger, here.

The Waxman-Markey bill sets up a cap-and-trade system for carbon emissions. Some critics warn that it does not do enough to combat climate change, others complain that it costs too much (although I wonder how inexpensive they expect it to be to relocate residents of coastal areas from Maine to Florida, the Gulf Coast, California, Oregon, Washington, Alaska and those poor souls in Hawaii). These challenges are in some ways expected--the usual challenges from the usual parties.  

What interests me more is the objections to climate change and green building regulations from unanticipated sources.  The Agricultural Lobby and even the House agriculture Chariman (a Democrat from Minnesota) are emerging as big challengers to the Waxman-Markey bill.  Sensing a threat to the ethanol juggernaut, Grist reports House Ag chair Collin Peterson (D.-Minn.) has been "threatening to derail Waxman-Markey unless the EPA completely backs off." 

Homeowner associations are another interesting source of opposition to green regulations and the implementation of green technologies.  Mark Pike at William & Mary wrote an interesting note about the situation and potential legal remedies here.

What do homeowners' associations and the Ag Lobby have in common? Vested interests.  New regulation inherently impinges upon someone's previously vested interests.  It is important to consider not only the obvious sources of opposition to green laws--like energy companies, traditional homebuilders, etc., but also those who have collateral interests in play. 

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On Earth Day, Mayor Bloomberg announced sweeping new green building regulations for New York City.  The proposed regulations would: 

• mandate energy audits in buildings larger than 50,000 square feet once every decade and require retrofits that are deemed cost effective, which is defined as a five-year payback period
• require property owners to benchmark the energy usage of their buildings
• mandate commercial lighting upgrades by 2022
• require compliance with a new energy code after completing a building renovation of any size

On May 12, the Massachusetts Board of Building Regulations and Standards (BBRS) approved Appendix 120AA as an optional appendix to the 7th edition Massachusetts Building Code 780 CMR. According to the BBRS,

the stretch code would be incorporated into the Massachusetts building code as an optional appendix. Towns and cities in Massachusetts would then be able to choose between remaining on the base energy code or adopting the stretch energy code as their mandatory energy code requirement.

Opponents argue

The “stretch code”...will end decades of statewide uniformity under the existing building code and will be in direct conflict with the goals of the statewide code — to provide uniformity, predictability and clarity.

These sweeping regulations are interesting from a couple of different perspectives.  First, they indicate a political willingness to impose stricter--and potentially costlier--regulations on developers, despite the down real estate market.  Second, they indicate a shift in policy making from independent green regulatins to adaptations of the building and energy codes.  It will be interesting to see how these schemes are implemented, and what effect they have on development in these localities. 

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At the National Association of Home Builders' Green Conference in Dallas this weekend, conversation turned to retrofitting buildings.  There was universal acknowledgement among the homebuilders I spoke to that building new homes was going to be dwarfed by retrofitting and renovating existing dwellings for the next decade.   

There has been a lot of discussion about upgrading building codes to incorporate green standards.  ICC is working on a commercial green code, and ASHRAE recently released a new draft of standard 189, also for commercial green buildings.  NAHB developed an ANSI/ICC standard for residential green building, NAHB Green.     

The problem? Many building codes do not apply to residential renovations. In Pennsylvania, the Uniform Construction Code does not apply to: 

(8) Alterations to residential buildings which do not make structural changes or changes to means of egress, except as required by ordinances in effect under sections 303(b)(1) or 503 of the act (35 P. S. § § 7210.303(b)(1) and 7210.503). Under this subsection, a structural change does not include a minor framing change needed to replace existing windows or doors.
 
(9) Repairs to residential buildings, except as required by ordinances in effect under sections 303(b)(1) and 503 of the act.

So, even if the building codes are upgraded to be "green," many home renovations will not need to comply, thus leaving behind a big chunk of existing building stock.

One possible solution is to apply the standard new construction building code to all projects.  New York has recently announced its intention to do this with respect to its Energy Code.   Opponents argue that forcing every small house renovation to comply with the components of the comprehensive building code would be unnecessarily costly and burdernsome.

The other is to develop an existing building code, alongside the building code for new construction, that applies specifically to retrofits.  The ICC already has an existing building code, and it could be used as a base for creating appropriate green requirements for even small renovations.  The key is keeping the requirements simple and focused on key green priorities which can be addressed in even the smallest kitchen renovation--construction waste management, energy efficiency, water conservation, indoor air quality, and materials reuse. 

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I wrote last week about LEED-ND, the new USGBC product for creating sustainable neighborhoods.  LEED-ND and its predecessors like New Urbanism are private sector attempts to make sustainable, walkable communities more marketable. In theory, everyone should want to live in communities where services are readily available, where streetscapes are conducive to community building and where green spaces are an integrated part of the landscape. 

The reality has been more mixed. Mixed-use, well planned developments are more expensive to build, and often have difficult land approval processes which stretch out the development timeframe. There are criticisms about increased density, school costs and other issues. 

But, there is a policy mechanism which could be implemented to radically shift development patterns in the United States towards more sustainable communities without imposing external structures like LEED-ND or New Urbanism.  One of the sacred cows of tax policy in the United States is the mortgage interest tax deduction.  In most cases, all mortgage interest can be deducted from U.S. federal taxes.  What if the mortgage interest tax deduction were phased out for development on the periphery?  Development around transit nodes, in mixed use areas and in areas which are ripe for redevelopment (Camden?) could qualify for the deduction, development in ex-urban areas would not qualify, or qualify for a lower deduction.  Would this policy "nudge" work to transform our built environment and lead to the rapid development of sustainable communities? Is it even politically possible given the "sacred cow" nature of the mortgage interest deduction?     

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