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

Yesterday, the USGBC launched LEED ND, the program for certifying neighborhoods as green in cooperation with the National Resources Defense Council (NRDC) and the Congress for the New Urbanism (CNU). I am a big fan of the concept of LEED ND, because (as I have discussed extensively on prior posts), a green building on an unsustainable site is not green.
According to CNU, LEED ND:

integrates the principles of new urbanism, green building, and smart growth into the first national standard for neighborhood design, expanding LEED's scope beyond individual buildings to a more holistic concern about the context of those buildings.

However, certifying neighborhoods automatically requires that the timeframe is much longer than that required for individual buildings, and may incorporate many different owners of different parcels and over the lifecycle of the project. According to the USGBC, LEED-ND projects will typically comprise of numerous buildings within a geographical area of up to 320 acres.
To address these issues, LEED ND has a different registration process. Projects are registered at three different stages of development:

Stage 1 – An application for Stage 1 may only be submitted for those projects that have achieved land use entitlement for no more than 50% of the square footage of all buildings within the project boundary, whether new or renovated, as measured on an aggregate basis.
Stage 2 – An application for Stage 2 may only be submitted for those projects that have achieved land use entitlement by public authorities with jurisdiction over the project for 100% of the square footage of all buildings within the project boundary, whether new or renovated. The project may be under construction or portions completed, but may not have more than 75% of its total building square footage constructed, whether new or renovated.
Stage 3 – An application for Stage 3 may only be submitted for those projects that are completed. A project is complete when: i) the appropriate regulatory authorities have issued certificates of occupancy (or other official designation that such facilities are fit and ready for use) for all buildings within the project and have accepted all infrastructure within the project; ii) every aspect of the project that pertains to a prerequisite has been completed; and iii) every aspect of the project that pertains to a credit that is being pursued has been completed.

At Stage 1 and Stage 2, GBCI will award an official designation to a project team rather than full certification. These official designations indicate that if a project is completed consistent with the information provided in the project application, then such completed project should satisfy all prerequisites and achieve a minimum number of points outlined in the LEED for Neighborhood Development rating system such that it should be eligible to receive LEED certification at a particular level, such as LEED Certified, LEED Silver, LEED Gold or LEED Platinum. At stage 1 a successful project team will be awarded “Conditional Approval of a LEED for Neighborhood Development Plan.” At stage 2 the project team is awarded a, “Pre-Certified LEED for Neighborhood Development Plan.”

This, of course, leads to a fundamental issue which vexes any land approvals process—what happens when the certification criteria change over time. With a standard land approval, like zoning, projects are generally subject to the laws that were in place when the project was submitted to the regulatory body. This is also how projects registered for LEED Certification have also been treated. Not so with LEED ND. According to the USGBC,

LEED-ND projects are not grandfathered to the rating system requirements in place at the time of initial registration…Under LEED-ND, projects can be registered a total of three times, once at the initiation of each stage. The rating system requirements are locked in for a particular stage at the point the project is registered for that stage rather than when it is registered at the initial stage.
So, you can begin a project under the requirements of LEED ND 2009, but be held to the standard of LEED ND 2018 when the project is ultimately completed.

I asked Susan Dorn, General Counsel for the USGBC about this “moving target” issue.

We are treating the registration for each stage independently. It is possible that people will not go beyond the first stage of registration, and likely in some instances. A lot of things happen with development on these long timelines. We also didn’t want the market to think that a project that was started 20 years ago was compliant with current LEED requirements. While the USGBC cannot commit, the issue of grandfathering will be something that we will keep in mind as the rating system develops. For 2012 the idea is that those persons that are working to develop LEED ND are aware of the issue, and there may be something akin to grandfathering.
Beyond whatever grandfathering may be built into subsequent versions of LEED ND, there is a section of the certification policy manual that addresses hardship. GBCI has some discretion with respect to credits which are impossible for a project to achieve. On the other hand USGBC doesn’t want to undermine the concept of LEED moving forward and mislead consumers. That is the tension.

I recommend that the USGBC develop a credit exemption process, by which LEED ND projects can demonstrate that complying with the as written requirement is impossible, and proposing an alternative. Since the timeframes are long and the projects are complex, some flexibility needs to be built into the system for it to be successful. No zoning code could exist without a mechanism for variance. This is what LEED ND needs going forward.
 

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Fans of Green Law will recall that the Heating and Air Conditioning industry associations (AHRI, et al) sued the City of Albuquerque to enjoin Albuquerque's green building regulations in 2008.

These industry groups relied upon an argument that the regulations adopted by Albuquerque exceeded the energy efficiency requirements for air conditioners, furnaces, heat pumps and water heaters established at the federal level by the Department of Energy.   

Now, two years later, the Department of Energy is holding a public meeting to discuss updating those standards.  The meeting will be held on May 5, 2010 from 9 a.m. to 5 p.m. in Washington DC at the US Department of Energy, Forrestal Building, Room GE-086, 1000 Independence Avenue SW, Washington, DC 20585. Written comments are also accepted by email to Brenda.Edwards@ee.doe.gov (include EERE-2008-BT-STD-0006 in the subject line).

In advance of the meeting, the DOE has issued the results of the preliminary analysis and potential energy conservation standard levels the DOE "could consider" for the regulated products, and a preliminary technical support document outlining its efforts. 

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I have been having numerous conversations over the past few weeks about the state of sustainability and the law.  From the sheer number of articles, conferences, and, yes, blogs on the subject, you would think that there would be lawyers nation (and even world) wide with thriving practices in green law.  The reality appears to be the opposite.  Even so-called green law experts are more theoreticians than practioners.  On this Earth Day, where are the lawyers?

1. Clients are ignoring the green components of legal transactions--A friend of GBLB who is an expert on green leasing told me that tenants and landlords are ignoring the green aspects of the leasing transactions. They nod interestedly at educaitonal sessions, and keep doing things the old fashioned way.

2. Green certifications is extralegal--No lawyers are required for LEED certification, for example,  and there is no appeal to a public authority for LEED certification.

3. There is no major federal green legislation--Environmental law did not take off as a profession until the early 1970s when major federal environmental legislation was passed.

4. Wasting resources is not illegal--There is no penalty for using too much energy or water.  Until there is someone who is regulating these areas, the amounts at stake in contractual relationship are generally  too small or to inconsequential to the whole project to litigate, especially in these resource constrained times. 

So what does this mean? Is there no future for green law? Should I pursue my medical license? 

1.  Resources are finite.  At some point, market forces will raise the stakes on energy, water and other commodities. When they become valuable enough, people will fight over access and usage of these finite resources.

2. Building regulation is coming--CALGREEN just imposed the first statewide mandatory green building code, and California often acts a precursor for where the rest of the nation will go in environmental regulation.

3.  Cap and Trade will change everything. Major federal regulation of carbon will cause litigation over the regulations themselves (there was decades of legal wrangling over the Clean Air Act and the Clean Water Act), the transactions, the requirements and so forth.

Maybe by the 45th anniversary of Earth Day, the field of green law will have developed.  

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The AP reported that 15 phony items were admitted to the EPA's Energy Star program because manufacturers' claims of energy efficiency are not verified:

But the General Accountability Office, Congress` investigative arm, said Energy Star doesn`t verify claims made by manufacturers -- which might explain the gasoline-powered alarm clock, not to mention a product billed as an air room cleaner that was actually a space heater with a feather duster and fly strips attached, and a computer monitor that won approval within 30 minutes of submission.

A gasoline powered alarm clock? Seriously? 

Last week I posted about the United Nations suspending its third carbon credit auditing company in 15 months.  These situations undermine all efforts towards a more sustainable future. Take, for example, the damage done by the climate change email debacle.  To be credible, solid, verifiable evidence must be the foundation of efforts designed to change the mind of skeptics and convert naysayers.  Otherwise, we will be measuring climate change using a gasoline powered thermometer...hey...now there's an idea...

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