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

Although most of you are probably in St. Martin enjoying fruity cocktails on the beach, we here at GBLB are hard at work.  So take a break from your mai-tai to read about a very interesting appellate decision out of California on weighing the relative priorities of green development.  The case, brought to our attention by a loyal reader, is Sven Toorvald v. City of West Hollywood, and the decision is available here.

A quick summary of the case is as follows:

Mr. Toorvald installed a small solar panel to power his halogen security lights, presumably like the one available here from Amazon.com.  Importantly, the Court notes:

The opening brief describes plaintiff's system, "an industry standard collector (one foot by one-foot comparable in size to a solar panel on a freeway call box), separate inverter and storage battery, [which] collects, stores and distributes solar energy for electrical generation."

Next door, a developer sought to build a four-story, nine-unit courtyard condo building with subterranean parking.  The development was a "green" development in that it complied with the West Hollywood green building regulations, was a "high achieving" green building project that qualified for an additional unit density bonus and had solar panels.  In addition, the project was an urban in-fill project.  

The controversy emerged because the green development was going to "cause an obstruction to his solar absorption for eight months of the year."  Mr. Toorvald alleged that this violated Municipal Code Section 19.20.170(A) which  mandates:

A structure, fence, or wall shall not be constructed or modified in a residential zoning district, and vegetation may not be placed or allowed to grow, so as to obstruct more than 10 percent of the absorption area of a solar energy system on a neighboring parcel at any time.
 

The trial court determined that Mr. Toorvald's solar lighting installation was not a "solar energy system," and therefore its obstruction did not violate Section 19.20.170(A). 

To justify this conclusion, the trial court and the appellate court go through a convoluted set of contortions to conclude that a solar panel that produces electricity for a lighting system is not "Any solar collector or other solar energy device whose primary purpose is to provide for the collection, storage and distribution of solar energy for...electricity generation..."

If that sounds like a silly argument, it is. What the courts were really trying to resolve is whether a high-value green development project was "worth" more than a tiny solar light.  The problem was not in the decision--I believe that the court and the city council rightly decided that an appropriate, in-fill green development should be approved.  The problem was in the justification, and the clumsy regulatory drafting which it uncovered.  "Solar energy system" was not defined in the Municipal Code.  The definitions that the Court refers to in state legislation were equally broad. 

Now that green buildings and renewable energy installations are becoming more commonplace,  city councils and planning commissions will be forced to weigh the environmental impact of competing development.  Is an in-fill development more environmentally worthwhile than a tiny solar installation? Just like health and safety regulations, these regulatory bodies will need to have discretion and guidelines to weigh the relative factors on environmental impact.

Because if it looks like a solar energy system and it quacks like a solar energy system, it probably is a solar energy system.

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 Ahhh holiday time, when the sound of the clerk's stamp on green litigation rings merrily in my ears.  On December 9, 2010, the Builders' Association of the Twin Cities (BATC) sued Minnesota Green Star (GreenStar).  The Complaint and Motion for a temporary restraining order is available here. 

Most states and local governments have incorporated third party standards, like LEED, into their green regulations, and that has caused no little amount of controversy.  Minnesota, by contrast, created its own green building certification standard for homes.

According to the Star-Tribune:

The program, funded in part with a grant from the MPCA, is voluntary and will have different criteria depending on the type of project. The standards for new construction, for example, will be different from those for a remodeling project. And the standards for an addition will be different from those for a simple kitchen remodel.

GreenStar was the non-profit formed to create the standards and program, and was originally a partnership of the BATC, the Minnesota chapter of the National Association of the Remodeling Industry and the Minneapolis-based Green Institute. 

 With the advent of the downturn in the economy, the partnership fractured into a controversy of green versus green, and the BATC withdrew from the organization.  Again, from the Star-Tribune:

But with the construction market so fragile, any additional costs for green certification can be detrimental, especially when many buyers are wondering whether their home values have hit bottom, said Mike Otto, a home builder and remodeler.

That's the sentiment that was driving the Builders Association to develop a broader range of standards that would allow builders and consumers more choices to earn the GreenStar certification. Dave Siegel, BATC's executive director, said that members want to embrace an "incremental approach" and create various standards, including some low-level certification that doesn't require more-expensive third-party verification.

At the time, the parties said the divorce was "amicable."  Like many families know, divorce is always amicable right up to the courthouse steps. 

In the spirit of "live and let live," the Builders' Association of the Twin Cities (BATC) sued Minnesota Green Star (GreenStar)  claiming that it developed and owns the intellectual property to "Green Homebuilding Guidelines," and Green Star was granted the right to use the Guidelines to further its mission, but did not own the rights to the materials. The BATC also loaned of $306,418.19, and the BATC claims Green Star cannot pay its debts, and therefore the loan is due and payable immediately.

In addition to filing the Complaint, the BATC filed for a temporary restraining order enjoining Green Star from:

[U]sing, in any way altering or damaging, and/or making or attempting to make any transfer, sale, assignment, license, sublicense or grant of rights or interests to any other person or organization with respect to all or any part of the Green Homebuilding Guidelines, including both the New Home User Manual and the Now Homes Checklist.

This week, Judge Gregg E. Johnson of the District Court of Minnesota granted the TRO, but limited its scope to "alteration, destruction, sale or licensing of the new home certification manual and checklist", and excluded the Green Remodeling Guidelines.  The Court also required BATC to post a $150,000 bond by Monday.  Green Star can still use the New Home materials in its ongoing work of certifying new projects.

The withdrawal of funding, participation and, potentially the new home checklist and manual undoubtedly threatens Green Star's existence.  The inititative was partially funded by the State of Minnesota, and so they may have a stake in the ownership and continued existence of Green Star, and may be brought into the matter.  Stay tuned, a temporary injunction hearing is scheduled for January 24, 2011.

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One of my loyal readers was kind enough to bring to my attention a troubling article from the Washington Post in which a man who had earned 9 green certifications and sent out hundreds of resumes still has yet to receive a single job offer.

In September, I spoke at a Woodrow Wilson Center event on green jobs for women.  Most of the presenters were from non-profit organizations which trained women for green construction jobs.  They all reported that their graduates were having trouble finding work.

The subject of the Washington Post article had been laid off from his job as a surveyor:

Anton has been out of work since 2008, when his job as a surveyor vanished with Florida's once-sizzling housing market.

He then retrained to do solar installation, green demolition, etc. and still could not find a job. 

The Washington Post article waves a wagging finger at the green stimulus spending and the promise of green jobs:

The Obama administration channeled more than $90 billion from the $814 billion economic stimulus bill into clean energy technology, confident that the investment would grow into the economy's next big thing.

The underlying assumptions of the Washington Post article, and many others like it, are inherently flawed.  You cannot wring blood from a stone. The recovery is happening slowly.  Lending is still very tight, meaning that it is difficult to get building projects--green or otherwise--financed. In other words, it's the economy, stupid.

The problem for Mr. Anton is not that he retrained green.  Indeed, his odds of finding a job actually went up through his retraining.  According to the Pew Charitable trust:

[B]etween 1998 and 2007, clean energy economy jobs—a mix of white- and blue-collar positions, from scientists and engineers to electricians, machinists and teachers—grew by 9.1 percent, while total jobs grew by only 3.7 percent. And although we expect job growth in the clean energy economy to have declined in 2008, experts predict the drop in this sector will be less severe than the drop in U.S. jobs overall.

Mr. Anton, and millions of others like him, are out of work not because the promise of a green economy failed, but because the economy failed.

Articles like the Washington Post piece also claim that the promise of the green economy as a job engine has been over-hyped.  This is not because the idea that green technology and renewable energy is not a potential new source of job growth--just look at China.  Even our own stimulus plan demonstrates that green stimulus projects create the most jobs per dollar of any of the stimulus initiatives. 

Rather, since Obama came into office and pushed a "green" stimulus plan, the public policy initiatives that underpin a successful green economy (not to mention a healthier environment)--like control of carbon through cap or tax, a national renewable energy portfolio, etc.--have been jettisoned.  With no new real economic engine or dynamism, the overall economy is recovering slowly. Yet, despite these obstacles, green job creation is still outpacing other sectors. 

So, perhaps the Washington Post article should have asked a different question: If green is not the next big thing, what did the other $724 billion buy you? 

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 The General Services Administration is one of the largest owners of real estate in the country, composed primarily of office buildings and courthouses, land ports of entry, and warehouses.  The GSA owns and leases more than 354 million square feet of space in 8,600 buildings across the nation.

The GSA is also the owner of one of the greenest real estate porfolios.  As of the summer of 2010, the GSA had 48 LEED-certified owned and leased buildings with approximately 150 more working towards accreditation. Eighteen of those projects exceeded the minimum with LEED Gold certifications, and one GSA lease, the FBI Regional Office in Chicago, achieved a Platinum LEED rating for Existing Buildings.  The GSA has required LEED Silver certification for its projects for some time, and now requires that new Federal buildings achieve LEED Gold certification.

While I was at GreenBuild in Chicago, I had the chance to sit down with Kevin Kampschroer, GSA's Director of the Office of Federal High-Performance Green Buildings and Eleni Reed, GSA's Chief Greening Officer.

We talked about GSA's experience greening the Federal government's real estate portfolio, implementing the GSA's LEED Gold requirement and the challenge--and benefits--of trying to do four times as many contracts as the GSA normally does because of the influx of $5 billion in Stimulus funding. 

Here is what they said:

GBLB: What has the GSA done with the Stimulus money? 

KK: The GSA has a bit of a different position than other agencies because the GSA actually enters into the contracts with builders and other receipients, as opposed to granting funds to states and other entities that ultimately contract with the recipients.  As of the end of September we had awarded $5 billion [for greening the Federal real estate and fleet].  After the award, it takes some time for the contractor to get the contract and hire the people and do the work, but we have made $1 billion in payments so far.

GBLB: What was impact of the Stimulus money on the GSA?

KK:  As a result of the Stimulus, we awarded four times as many contracts as the GSA usually does in the same period of time.  This forced us to find ways to be more efficient in what we were doing.  For example, we started "speed dating."  Where decisions had to be made, we put all the decision makers in a room togther to come to a decision quickly.  Executives and managers had to delegate some of the decision-making to ensure efficiency. 

Because the projects had to be "shovel ready," many of the designs were already done.  The designs met our specifications, but were not necessarily the best possible designs--the most you can do with the budget that you have.  Going forward, we are retooling our performance criteria and specifications to spur teams to be more innovative and creative with the budget they have.

For example, the National Renewable Energy Laboratory is a net-zero building.  We gave the team specifications, and we incentivized the team by paying them mroe the closer they got to the goals.

For other projects, we had a relatively brief minimum performance criteria which was a goal statement for the project.  It has resulted in more rapid and more innovative designs. However, this requires accepting a shift in risk to the Government side.  But the less risk you take, the less you get [in terms of innovation and design.]

This also has implications for allocating capital.  The GSA has to allow for approximation up front and not require everything to be fixed from the beginning of the project.  

GBLB:  Now that you have all these green buildings, what are you going to do next?  

ER: We are looking to get good metrics about whether we are doing what we set out to do [in terms of building performance].  We have 250 buildings with baseline metrics across a wide variety of project types so we should be able to get some good data. 

GBLB: How will the experience with the Stimulus funds impact the agency going forward? 

KK: We will be more efficient and more effective.  We will have achieved significant improvement in our portfolio [of buildings].  The budget will be extremely lean in the future.  It will be important to apply the lessons we have learned [about how to do projects more efficiently] to operating and maintaining the buildings to prevent deterioration.  We have an opportunity in tracking the performance of the inventory over time and across the portfolio.

GBLB: What about your requirement that GSA projects achieve LEED Gold certification?

KK: We select contractors who know that this is the expectation.  We have been doing LEED Silver for a decade, this is raising the bar to LEED GOld, but the architect and engineering firms know how to do it. 

When we budget the project, we have adjusted the process to allow for LEED Gold certification.  We have done studies on standard versus green construction, you can do LEED Silver for less than conventional construction because of integrated design. 

GBLB: Have you ever had a project fail to get the mandated certification? 

KK: The way we started out was that our goal was LEED Silver.  We have had building that did not reach that level of certification, but never had one that failed to acheive minimum LEED certification.

For more on the GSA's efforts, Architecture Week had an article by Kevin, and Kevin's testimony before the House Subcommittee on the GSA's Stimulus efforts is available here.

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I have written and written on the gender disparity in green building and renewable energy.  Today I am beating that poor horse just one more time, but it is so important to me that I hope you will indulge me.

Today I received the invitation from the American Council on Renewable Energy National Policy Forum, which is scheduled for December 8-9 in Washington. There are 34 speakers at this program, one of whom is female (big shout out to Lisa Frantzis from Navigant Consulting).  The invitation (which you can see for yourself here) makes this disparity visual. 

What is the cause of the gender disparity at this event? Is it ACORE, a very good organization as a general proposition, not being aware of the gender disparity in the program? Is it the lack of women in Congress and other federal leadership positions as a whole, thereby reducing the pool to choose from for this event? Is it a failure of women in this field to promote themselves as speakers to this type of event?  Choice D, all of the above? 

I do not think that including women in a program purely for the sake of gender diversity is a positive outcome of this type of discussion.  Rather, in an industry which is predominantly male dominated,  the organizers of programs like this one should make an effort to identify women who are qualified, which may take a little more effort, but produce a more balanced program. 

By identifying and promoting women in this type of forum, more women are likely to come and to be involved, thereby creating a larger pool of qualified professionals, and beginning to address the gender disparity as a whole.

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I have curly hair. More heat and humidity = bad hair days.  Thus, from a purely personal perspective, climate change-caused increases in temperature and intensity of storms will be, for me, a nuisance. 

Apparently, my perspective on this does not count as much as that of the Supreme Court.  Fortunately, the nine justices (well, actually, eight because Sonya Sotomayor recused herself) will be deciding whether climate change actually is a nuisance.  Today the high court announced that it will hear American Electric Power v. Connecticut. 

In the original suit, a coalition of eight states, local governments and non-profit land trusts sued major power producers alleging that the power producers had created a common-law nuisance by adding 650 million tons of carbon into the atmosphere. 

The main issue is one of my perennial favorites in the green regulation arena--federalism.  The district court determined that the case could not go forward because the suit raised political questions which were not justiciable by the courts.  The Second Circuit reversed, arguing that, while complex, the issues boiled down to basic environmental torts which had been handled by the courts in the past. The Second Circuit decision is available here.

Many Republicans have been trying to restrict the EPA's ability to regulate greenhouse gas emissions pursuant to the Clean Air Act, and Harry Reid has already announced that comprehensive energy legislation, including cap-and-trade is off the table indefinitely.

Thus, If the Supreme Court rules that regulating greenhouse gas emissions is a political question, that question has already been answered.  But if the Court decides that carbon emission is a nuisance, and capping of carbon emissions is an available remedy, the politicians will be left with little choice other than to create a compromise on how to cap carbon emissions comprehensively.  If they do not, it leaves open the opportunity for copy-cat litigation in every state and municipality across the country, with potentially differing mechanisms for capping greenhouse gas emissions.

The showdown is likely to happen in the spring, and be on the lookout for an 4-4 split, since Justice Sotomayor recused herself.   

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