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

Happy Monday!  

As I posted earlier, in Murray, et al v. EPA , plaintiff Murray Energy Corporation seeks to enjoin EPA's Clean Power Plan rule even before it has been issued as a Final Rule.  The Clean Power Plan proposes to regulate the carbon emissions of existing power plants under the Clean Air Act. 

 Last week, the states of New York, State of Connecticut, State of Delaware, State of Maine, State of New Mexico, State of Oregon, State of Rhode Island, State of Vermont, State of Washington, Commonwealth of Massachusetts, District of Columbia filed notice of their intention to participate as amicus curiae 

In June, Alabama, Kentucky, Oklahoma, South Carolina, West Virginia, Alaska, Nebraska, Ohio and Wyoming also filed an amicus brief in this case.

Assuming that the northeastern states support the Clean Power Plan, it sets up a sort of "Blue v. Grey over Green" battle, with the western states thrown in as well.   

There was also an interesting decision in the D.C. Circuit last week, lifting a stay on the EPA's Cross-Border Pollution Rule.  But, additional issues remain to be resolved in the DC Circuit case, so there will likely be more action on this critical rule.    

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The Federal government has long been a leader in constructing green buildings, and LEED has been the Federal standard of choice. The Department of Energy issued a final rule updating its recommended certification standards and levels for all Federal buildings on October 14, 2014. 

The Final Rule does not tell Agencies which rating system to use.  Rather, if the Agency chooses to use a rating system, such system must meet the following characteristics:

1. Allow assessors and auditors to independently verify the criteria and measurement metrics of the system;
2. Be developed by a certification organization that (i) provides an opportunity for public comment on the system, (ii) provides an opportunity for development and revision of the system through a consensus-based process;
3. Be nationally recognized within the building industry;
4. Be subject to periodic evaluation and assessment of the environmental and energy benefits that result under the rating system; and 
5. Include a verification system for post occupancy assessment of the rated buildings to demonstrate continued energy and water savings at least every four years after initial occupancy. 

Sounds a lot like LEED or Green Globes to me, so unless something else comes into the marketplace, Federal buildings are likely to use the LEED standard.

The DOE's rule is based, at least in part, on a General Services Administration (GSA) report on green building rating systems issued on October 25, 2013, and available here.  The GSA recommended LEED-2009 Silver or 2 Green Globes v 2010.  It also contained a variety of other recommendations, including keeping current with the rating systems as they evolve. 

The GSA's recommendation is an interesting one for two reasons:

(1) the GSA requires its buildings to be LEED Gold, and

(2) the recommendation was not supplemented to recommend LEED v4, even though the GSA did evaluate LEED v4. 

Since the Final Rule does not have a recommended rating system, and most agencies are unlikely to parse whether a particular rating system other than LEED complies with these characteristics, the GSA's recommendations are likely to become the Federal default.  

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