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

A lot of attention has been paid to creating a greener building stock by incorporating green building practices into building codes.  The development of the International Green Construction Code is just one example.

However, there are two primary components to every regulation--policy and process.  Both components are critical to acheiving regulatory goals. Good laws that are not implemented and enforced might as well not exist, and bad laws which are well implemented create a different, but equally bad, outcome. 

The process for approving building codes is arcane at best and impenetrable at worst. To those interested in sustainability, code process may seem like the ultimate "inside baseball" information, like knowing what the Lou Brock's 1967 out statistic was--simply not vital to understanding baseball as a whole.  HB 377, a law signed by Pennsylvania Governor Tom Corbett this week demonstrates how how process changes can impact green building and energy efficiency policy. 

 Generally, the process for adopting building codes is as follows:

1.  The local or state government enacts enabling legislation requiring a building code, often incorporating the International Code Council's model code.  

2.  The International Code Council updates their model building codes on a regular basis, once every three years.

3.  The state or local government has some mechanism, either automatic or through an approval process, for updating its building code to the new version. 

Depending on what level of authority is provided to local governments with respect to their building codes, local governments may adopt additional or different changes to the building code requirements.

Pennsylvania has a state wide building code which, until this week, was an "opt-out" model.  Updates to the International Construction Code were automatically incorporated into the Pennsylvania code unless provisions were specifically rejected by a Governnor-appointed council comprised of builders, architects, code officials and so on. 

The bill enacted this week switches the code adoption to an "opt-in" model.  Any changes to the construction code must be approved by a super-majority vote by the council, otherwise the prior code remains in effect.  In addition, the law adds an additional seat to the 19 member council for:

A GENERAL CONTRACTOR FROM AN ASSOCIATION REPRESENTING THE NONRESIDENTIAL CONSTRUCTION INDUSTRY WHO HAS RECOGNIZED ABILITY AND EXPERIENCE IN THE CONSTRUCTION OF NONRESIDENTIAL BUILDINGS

Policy watchers, like Penn Future , the Delaware Valley Green Building Council, and the Northeast Energy Efficiency Partnerships , anticipate that the super-majority vote of the council will make enacting updates of the ICC very difficult, and that the extra seat for the general contractor will bias the council against upgrading the stringency of the building code. This, of course, includes code changes for greater energy efficiency requirements and incorporating green building practices.

HB 377 said nothing about energy efficiency or green building.  Nonetheless, the changes to the building code adoption process creates a potentially significant barrier to a greener building stock in Pennsylvania.  On a 20 person board, It would require 13 votes to put a code change into effect, and each change must be lobbied for separately.  

Do you know what the code adoption process is in your state or municipality?  Are there any proposed changes?  Let GBLB know what you find out.  It might surprise you.    

• Email This
• Print
• Comments (5)
• Trackbacks
• Share Link

On Friday, the USGBC responded to Henry Gifford's amended complaint with a Motion To Dismiss for failure to state a legal claim (Federal Rule of Civil Procedure 12(b)(6)) and for lack of subject matter jurisdiction (Federal Rule of Civil Procedure 12(b)(1)).

In essence, the USGBC's response has two prongs: 1) the Plaintiffs lack standing, as I predicted here; and 2) that the Plaintiffs could not demonstrate that they had been harmed by the USGBC's allegedly illegal conduct. Stephen Del Percio does a nice job of outlining the standing arguments here. 

In the back of the Memorandum of Law is an interesting discussion of the USGBC's marketing.  In the context of arguing that the New York Consumer Fraud Statute does not apply, the USGBC argues:

USGBC's marketing--which is before this Court on this motion--is directed at businesses and professionals.  The website, which is how USGBC advertises, defines the audience for USGBC's marketing.  LEED users are 'architects, real estate professionals, facility managers engineers, interior designers, landscape architects, construction managers, lenders and government officials...

I think this is a difficult argument, and not one with a lot of factual merit. 

The USGBC website has a link to a website entitled:

U.S. Green Building Council's Green Home Guide Connecting you to ideas, advice and green home professionals.

The purpose of the site is clearly to communicate information about LEED and green building directly to consumer homeowners. The Green Home Guide website offers a tool for homeowners to become acquainted with the LEED for Homes system:

LEED FOR HOMES SCORING TOOL
It's FREE.NEW – The LEED for Homes Scoring Tool

Q: How close is your project to earning
LEED for Homes certification?

A: Probably much closer than you think.

As the building industry evolves, more residential projects already include sustainable features that contribute to certification. The LEED for Homes Scoring Tool will help you assess your project. By answering a few simple questions, you’ll not only learn just how close you are to earning certification, but also various steps you might take to get there. Plus you’ll gain important insight on the LEED for Homes rating system.
 

The USGBC even publishes a brochure for LEED® for Homes™ FAQ for Homeowners available here.

So, it's pretty clear that the USGBC is marketing directly to consumers, contrary to the Memorandum of Law in support of the USGBC's Motion to Dismiss.

The worst part is that there was no need for the USGBC to make this factually unsupported argument. Even if the USGBC advertises to consumers, the consumers that might have been harmed by the advertisement are not included amongst the plaintiffs, and are not represented by the factual misstatements alleged in the Amended Complaint. Making factually unsupported arguments may weaken the punch of the USGBC's clearer grounds for dismissal, and provide a toe hold for the Plaintiffs to plant seeds of doubt about the rest of the USGBC's arguments.

• Email This
• Print
• Comments (3)
• Trackbacks
• Share Link

The United States is at a precipice with respect to public motivators for the green economy. Essentially, the carrot of public incentives or investment and the stick of potential mandatory regulation of carbon emissions are slated for elimination at the same time. 

Although we cannot know what this two part challenge to the green economy will do, it will certainly change its trajectory for the foreseeable future. 

First, of course, are the proposed revisions to the 2011 budget.  With respect to green building, slated for cuts are most programs that promote green building or which invest Federal dollars in green buildings directly:

• $3 billion of EPA funding overall
• $1.6 billion (nearly 20%) of the Federal Building Fund at the General Services Administration (GSA)
• $786 million (over 35%) of the Energy Efficiency and Renewable Energy (EERE) office at the Department of Energy (DOE)
• $250 million in funds for the Department of Housing and Urban Development (HUD) HOPE VI program, which leverages private sector dollars to transform existing blighted public housing into vibrant and livable communities.
• $10 million for the Energy Star program at the Environmental Protection Agency (EPA).

With respect to renewable energy, the proposed Republican budget bill slates for reduction or elimination over $900 million in investment. Among the programs slated for cuts or elimination is the Department of Energy Loan Guarantee Program for clean energy start up companies, established during the George W. Bush administration.  According to Forbes, DOE officials have said that eliminating this program would do away with 20,000 jobs, along with the benefits for the environment.

In addition to the direct cuts, at least four different proposals are pending (potentially up for a vote this week) restricting or eliminating EPA's ability to regulate greenhouse gases.  If the EPA is restricted in its ability to regulate greenhouse gases, one of the most potent motivators for investment in reducing carbon emissions through renewable energy, green buildings and other carbon reduction techniques will be eliminated.  

 The question will become not whether renewable energy and green building can compete without government subsidy, but rather whether renewable energy and green buildings can compete in the face of continuing subsidy to competing technologies like coal, oil, etc. 

According to the Center for American Progress, the proposed Republican budget will make few changes with respect to the $40 billion+ Government support of these technologies through tax incentives and other mechanisms. Fox News was unable to get a commitment from House Budget Committee Chairman Paul Ryan (R-WI) that tax breaks for oil and gas companies would be eliminated:

WALLACE: A lot of Democrats that are already saying, even before they’ve seen your budget, that you do all of this balancing of the budget on the spending side, and unlike the President’s debt commission, you don’t do it on the revenue side. Do you eliminate tax breaks? Do you bring in new revenue by eliminating, for instance, tax breaks for oil companies?

RYAN: We don’t have a tax problem. The problem with our deficit is not because Americans are taxed too little. The problem with our deficit is because Washington spends too much money. … So we’re not going to down the path of raising taxes on people. […]

WALLACE: But for instance, you will not eliminate tax breaks for Big Oil and Gas?

RYAN: Those are the kinds of details that we’ll come out later with, that the Ways and Means Committee will work on. We’re not going to go into the little details of which tax expenditure goes and which tax expenditure stays.

 [You can watch this portion of the interview on You Tube]

The next few weeks will be historic ones with respect to America's green future.  For better, worse or otherwise, these are interesting times which will mean changes for everyone in the green sector in the United States. 

• Email This
• Print
• Trackbacks
• Share Link

You may have noticed that it has been uncharacteristically quiet over at GBLB the past month.  I have moved to the Energy, Environmental and Public Utilities Practice of Cozen O'Connor.  Thank you for your patience, and now that the move is accomplished, we will be doing a redesign of GBLB with great new features coming very soon!

• Email This
• Print
• Trackbacks
• Share Link