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

Yesterday, the EPA released its Sustainable Design and Green Building Toolkit for Local Governments.  The Toolkit: 

The Toolkit is designed to assist local governments in identifying and removing permitting barriers to sustainable design and green building practices. It provides a resource for communities interested in conducting their own internal evaluation of how local codes/ordinances either facilitate or impede a sustainable built environment, including the design, construction, renovation, and operation and maintenance of a building and its immediate site.
 

The toolkit can be downloaded here.

The Toolkit was developed by EPA Region 4, and we are very excited to have Karen Bandhauer, an Environmental Scientist at EPA Region 4 for an interview about the Toolkit on August 4.

Today, the Center for Climate Change Law at Columbia Law School issued for comment a draft model municipal green building ordinance.  The Model Ordinance is available for download here.  According to the Center for Climate Change Law:

Unlike other model ordinances that detail technical specifications, this ordinance presents a framework for the implementation of existing technical standards and a streamlined procedure for their compliance and enforcement. The model ordinance accommodates the rapidly developing field of substantive green building standards by allowing for the adoption of new standards within the ordinance’s framework.
 

Notably the Model Ordinance attempts to deal with the issues related to preemption, non-delegation, and antitrust, and a separate analysis document is available on the site as well.

I look forward to working through these documents and commenting on them further, and looking forward to hearing your thoughts on these resources. 

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By: Patrick J. Bello, LEED AP, Drexel University Earle Mack School of Law, Class of 2012

In April 2009 the U.S. Green Building Council launched LEED v3.  Prior to this upgrade, any professional seeking to achieve LEED AP status had a choice of only three exam tracks: 1.) New Construction; 2.) Commercial Interiors; or 3.) Existing Buildings. Upon successful completion of the accreditation exam, you received a single encompassing designation as a “LEED AP.” There was only one exam necessary, and there were no prerequisites beyond being a professional in some field related to real estate and development. Today however, under the new credentialing formats, there is a 2-Step process before a professional can obtain the LEED-AP designation.

STEP 1: GREEN ASSOCIATE
The first step requires that a person interested in becoming LEED accredited first meet the criteria listed online for becoming a “Green Associate.” If you meet these requirements, you are eligible to sit for the Green Associate exam. A Green Associate is considered to have the basic overall knowledge of the LEED certification process, but they do not have any “specialized” knowledge. The "Eligibility Requirements" that one must meet to take the Green Associate exam are far more relaxed than the LEED AP requirements. Essentially, you must prove that you are a professional in some field related to "sustainability" – it is quite broad. You would need to get letters (from employers/clients/etc.) verifying that you do in fact work in a sustainability profession, then send them in to the GBCI for approval. It is all part of the "Application Process" to verify eligibility to sit for the exam. The GBCI website provides a detailed step-by-step guide outlining the credentialing process.

STEP 2: LEED-AP with Specialty
Step two, becoming a “LEED-AP,” entails more stringent prerequisites – namely, in order to be eligible to sit for the LEED-AP exam, you must have worked on a LEED certified project within the last three years. If you do not meet this requirement, the highest level of accreditation you can achieve is the Green Associate designation. But if the LEED-AP requirements are met, you may sit for both exams at once – but note, that in order to become a LEED-AP, you must still first successfully complete the Green Associate exam track as well.

If the person seeking accreditation does have the required experience on a LEED project, professionals are required to select a specialty under which they wish to become accredited. The specialties are referenced as, LEED AP:

1.) Neighborhood Development (ND),
2.) Building Design and Construction (BD+C),
3.) Interior Design and Construction (ID+C),
4.) Homes,
5.) Operations and Maintenance (O+M).

According to the Green Building Certification Institute (GBCI), the new variations, “show differentiation in a growing and competitive industry, and they allow for varied levels of specialization.”

Exam prep workshops, webinars and reference guides are available to view or purchase online on the USGBC website. Professionals who completed the LEED exams prior to the 2009 changes, are in essence “grandfathered” into the new program. They retain status as LEED AP’s without having to go through any additional re-testing or completing continuing education credits. LEED AP’s completing the exams prior to the 2009 switch are given a 2-yr window during which they may choose to select a specialty – enrollment period ends in the fall of 2011. For example, a professional who had taken and passed the LEED for New Construction v2.2 exam before April 2009 will never lose their LEED AP status, but may elect to update their enrollment by selecting a specialty, such as LEED AP, BD+C. The upgraded status will however require either continuing education or re-testing in order to be maintained.

So just as the LEED certification process has become subject to more strict requirements and post-certification “checks,” so too has the accreditation process.
 

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EENews (subscription required) reported today that the organization "CO2 Is Green," a front organization for energy companies, published a particularly rabble rousing ad in today's Washington Post.

Because describing it is so much less satisfying, I reprint the ad in full here (you can see an image of the ad here):

The Kerry-Lieberman Cap and Trade Bill will drive the USA away from cheap efficient energy and permanently increase your cost of electricity, transportation fuel, and food.
• The bill is based on the false premise that man-made CO2 is a major cause of climate change. Real, empirical evidence indicates it is not. But even if CO2 was a major factor, using the Intergovernmental Panel on Climate Change's own formula and numbers, the bill would only reduce Earth's temperature by one tenth of one degree within the next 90 years!
• Wall Street, the Administration, green industries, environmental extremists, academia, and the media will love Kerry-Lieberman; you will not because you will pay for the costs.
• Passing Kerry-Lieberman will not stop the oil spill. Cost of the spill will be
paid for by BP. Don't let the President get the bill passed by riding the unrelated oil spill tragedy which will cost you money.
• The Obama Administration is touting energy independence by passing Cap and Trade. You cannot run your cars, planes, businesses, and homes on Wall Street's profits. Wind and Solar pr ovide less than one percent of our energy and that will not increase by a meaningful amount for decades. Fossil fuels provide 83% of our energy. Our economy will never recover if Obama's attack on this industry succeeds.
Cap and Trade proponents are buying support from industries on Wall Street with various corporate giveaways as he did with the very expensive Health Care Bill. Do not let this happen again with the Kerry-Lieberman Cap and Trade Bill.

If you are interested in who CO2 green is according to EENews,

Spokesman H. Leighton Steward sits on the board of directors of EOG Resources Inc., an oil and natural gas development company. He also is an honorary director at the industry trade group American Petroleum Institute, according to a biography on EOG's website...CO2 is Green is bankrolled by Corbin J. Robinson, chief executive of and leading shareholder in Natural Resource Partners, a Houston-based owner of coal resources.

According to Mother Jones

Natural Resource Partners is also a member of the American Coalition for Clean Coal Electricity (ACCCE), the scandal-plagued coal front group currently under investigation for its role in the forged letters sent to members of Congress criticizing the House climate bill.
 

What I am particularly amused by is the imaginary cabal of Wall Street bankers and the Obama administration against the unlikely pairing of energy companies and the common man.  Last I checked (which was today), EOG Resources is listed on the New York Stock Exchange.  In their 2009 annual report, this scrappy upstart champion of the little guy stated:

For the three, five and 10-year periods ended December 31, 2009, EOG’s stock appreciation was 56 percent, 173 percent and 1,008 percent, respectively, significantly exceeding the performance of the S&P 500 Oil and Gas Exploration and Production Index for these three periods.

EOG’s persistence in managing costs and maximizing reserve recoveries has resulted in superior returns, year after year. Our average ROCE(2) for the 10-year period ended December 31, 2009 was 18 percent. EOG’s outperformance on stockholder returns and ROCE validates its long-term organic growth strategy.

 

That's right--for the past 10 years, stock of EOG has increased 1,008 percent.  So Wall Street's profits are...EOG profits.   

Moreover, let's take a brief look at the proposition that "Our economy will never recover if Obama's attack on this industry succeeds." Does this mean that the economy cannot afford even a slight reduction in EOG's 1,008 percent stock price increase? Let's play my favorite statistical game. If we reduce our dependence on fossil fuels by half, which in turn reduces EOG's profits by half, their stock will only have gained in value 504% over the last five years. 

This doomsday conclusion also assumes that there will be a massive negative economic impact of weaning off fossil fuels, which evidence indicates is not the case. 

According to the Congressional Budget Office, the cost of Cap & Trade to each American household on a net economywide basis would be...wait for it...

On that basis, the Congressional Budget Office (CBO) estimates that the net
annual economywide cost of the cap-and-trade program in 2020 would be
$22 billion—or about $175 per household.

But we will never recover from this increase.  To put it in perspective, $175 is less than the cost of an Amazon Kindle or about the cost of a subscription to cable, cell phone and internet access (cable is $71 and internet access about $45 and cell phone about $73) FOR A MONTH. 

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Despite the promise of $200 million Smart Grid stimulus grant to BG&E in 2009 from the Department of Energy, according to BuildingGreen.com:

The Public Service Commission of Maryland rejected implementation of “smart grid” metering proposed by Baltimore Gas & Electric (BGE) in June 2010. The commission based the rejection on fears of rate increases and tiered pricing that would increase costs for consumers.

Other people have sued utilities in California and Texas over perceived issues with Smart Metering, notably the objectors said that they were being overcharged for their electrical usage.

Others suspect a more nefarious purpose for the smart meters.  The MasterResource Blog, which bills itself as a "A free-market energy blog" had this objection to the proposed Maryland smart meters:

And last but not least, smart meters are intrusive. Big Environmental Brother lurks behind each smart meter to tell you what to do and when to do it. Civil libertarians take note of this government-dependent machine.

 Are the concerns over smart metering legitimate? Another argument can be made that smart meters are no different than the current electrical system.  With standard meters, electricity is measured by electrical meters, and the electrical utility reads the meters, albeit in the form of a "meter maid". 

 Critics are especially concerned about smart meters' capacity to regulate usage depending on demand--higher prices when demand is high, lower prices when demand is lower, and to regulate the flow of electricity when demand exceeds supply.  But, it can be argued that the utilities do this already, albeit in a cruder form.  For example, when demand exceeds supply, there are brown- and black-outs.  This is simply restricting the flow of electricity on a broader scale. 

As for pricing, if demand exceeds supply, utilities raise electricity prices for everyone.  Rate caps prevent utilities from raising prices in some places, but can this legitimately be considered the "free market" regulating electricity prices? I think not.  It is the government regulating electricity prices.

It strikes me that smart metering is as close as you can get to free market allocation of electricity.  When demand is high, prices increase, when demand is low, prices decrease.  Individuals have the capacity to decrease their bills by using less of the constrained resource. 

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Recently there have been several cases of neighbors raising objections, valid or invalid, to green projects. 

There was the Northland Pines case where community members challenged the LEED certification of a local high school.  Recipients of smart meters sued the utilities claiming the smart meters wrongly measured their electricity use.  Neighbors held up the Cape Wind offshore wind energy project for years. Neighbors even object to the placement of solar panels, most famously on Al Gore's mansion in Tennessee.

Now, a 24 hour solar and biomass large scale renewable energy plant in California has been scrapped due to the objections from neighbors.  According to the New York Times:

Although local residents and regulators had raised issues about the proposed solar farm’s water consumption and other impacts, it was the project’s plan to operate around the clock by burning biomass that proved problematic, according to energy commission records.  

The neighbors were apparently concerned about the added air pollution from trucks hauling biomass.

The question for policy makers, is, of course, how to balance individual rights with the collective need to develop renewable energy sources and allow for green building technologies. 

This is a tough nut to crack, particularly in the United States where individual property rights are a sacred cow that no politician wants to slaughter.   Evidence of this can easily be found in the aftermath of Kelo v. New London, wherein the Supreme Court decided that private property could be taken for economic development.  In the wake of the decision and popular outrage that individual property could be taken and given to another private party, states and municipalities throughout the country passed laws significantly curtailing eminent domain powers.

Policy makers need to take into consideration some or all of the following: 

1. Weigh the value of the project have towards meeting environmental goals--This may seem like an obvious consideration, but the value of a large scale solar project to the greater community trying to come off foreign power sources should be given greater latitude than a small project that will have limited impact, but causes significant distress in the community. But, large projects usually cause more handwringing than small ones. So...
2. Consider ways to minimize the impact--Are there ways to do the project differently so that individual concerns are minimized? Could the California renewable plant have used alternative fuel trucks which caused less pollution? But...
3. Give the community a voice--There may be valid concerns with the project.  If neighbors have a voice in the process, they might raise legitimate issues, and feel empowered as part of the decision making process. But...
4. But limit the pretextual objections--My husband likes to call needling neighbors BANANAs--Build Absolutely Nothing and Nowhere Anytime.  Do the neighbors object to any projects, no matter how beneficial to the community? If so, there has to be policy in place to air valid concerns and resolve them, without endlessly delaying good projects.

In order to stay the same, things need to change.  We need to reduce our energy usage and convert to renewable sources to retain our standard of living.  Policymakers need to balance the valid claims of individuals with our collective pursuit of new energy sources.

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