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

There is a war on building codes across the United States, and Pennsylvania is ground zero.

After years of regular building code updates, a law was passed in 2011 (Act 1) at the urging of the Pennsylvania Builders Association to make it essentially impossible for building codes to be updated. 

Last Thursday, the Clean Air Council decided to take action, filing suit against the Commonwealth for its failure to adopt both the 2012 and 2015 codes, and challenging Act 1. The Petition in Commonwealth Court is available here, with the extensive exhibits available here. 

In summary, the suit alleges that the Pennsylvania Review and Advisory Council (RAC), the 19 member body charged with reviewing and adopting building codes rejected the 2015 codes for no reason and against the recommendations of its own technical review subcommittees. It also alleges that Act 1 violated the Pennsylvania and Federal constitutions by creating a process that makes code adoption impossible.

Pennsylvania is an example of a nationwide trend. Starting with the 2009 codes, homebuilders associations in many states have sought to delay or derail code updates by taking over administrative building code review councils and lobbying for draconian legislation. North Carolina is another example, where the codes are now on a 6 year cycle, and more legislation is in the works (HB255) to make adoption even more difficult. 

The implications for the built environment in terms of safety, energy efficiency, cost-effectiveness and resilience from natural disaster damage are massive. 

Of course, up-to-date codes save lives. Recently, a 2 year old child fell out of a window that was not built to the current codes. Had the current codes been in effect, the window would not have been able to open as far, preventing this tragedy. 

With natural disasters on the rise, making the built environment more resilient is critical. The Federal Emergency Management Agency (FEMA) determined that $1 spent on preparedness for natural disasters will save $4 in restoration costs. FEMA has also said that up-to-date building codes are among the most cost-effective mitigation measures. 

The 2015 codes include many flood-related provisions, including changes to the 2015 International Residential Code supported by FEMA’s Superstorm Sandy analysis report.

Up-to-date codes save consumers money and benefit the environment through greater energy efficiency. The 2015 codes are 15% more energy efficient than the 2009 codes, and 30% more energy efficient than the 2006 codes. The Department of Energy estimates that consumers will save between $4000-$24,000 over the course of a 30 year mortgage (2009 compared to 2015 codes), as well as reducing air pollution and greenhouse gas emissions. Simple payback will be less than two years. 

The health of the United State's manufacturing sector and the safe and effective installation of new technology also requires regular building code updates. 

Investment:  The investment decisions of electrical manufacturing companies like Eaton, Tyco, Lutron and others in capital equipment, machinery, and jobs are often based upon nationwide adoption of codes.  When those codes are not adopted, or adoption is delayed, decisions to make those investments and hire employees are negatively impacted. 

       Risk management:  Installation codes and product standards work hand in hand to ensure public safety and ensure that products perform in the manner in which the manufacture intends and customer expects.  Not adopting the latest code puts us at risk, first responders at risk, engineers at risk, distributors at risk, general contractors, electrical contractors and citizens at risk.  Liability can be increased for all of the above if up-to-date codes are not adopted.  These companies build products to meet new code requirements, and expect the equipment to be installed in that manner across the United States. 

 Innovation:  New technology, like ground source heat exchange, high-pressure decorative exterior grade compact laminates, dynamic glazing, solar energy systems, electric vehicle charging stations and many others have been gaining traction over the past few years.  Up-to-date codes provide guidance on the safe and effective installation of these new products.  For example, the 2015 codes have updated roofing requirements for installation, wind resistance, fire classification and others.  These changes will protect the lives of homeowners and first responders alike. 

The Clean Air Council chose to take this issue head on, and I will keep you updated on the progress. 

Image courtesy of kdshutterman at FreeDigitalPhotos.net

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As the reaction to EPA's Clean Carbon Plan has demonstrated in living color, environmental regulation is tough in the United States in 2014.  For many years, there has been many efforts to use innovative tools to promote adoption and enforcement of energy efficient building codes.  I think there is a lot to learn from these efforts, as I discuss in my piece at RegBlog, the blog of the University of Pennsylvania Program on Regulation.  

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The Court of Appeals of the State of New Mexico handed down a limited win for energy code advocates, holding that adopting changes to building codes that removed energy conservation provisions without any justification violated administrative procedure. The decision is available here.

Between 2006 and 2012, the construction and energy codes adopted in many jurisdictions have incorporated provisions increasing the energy efficiency of buildings built to code by 30% (15% from the 2006 to the 2009 codes, and an additional 15% from 2009 to 2012). 

As I have posted about previously, there is a trend nationwide to resist adoption of the 2012 codes, in part based on the increased energy conservation requirements. In the case of New Mexico, the state had adopted codes which had energy conservation requirements beyond those in the 2009 energy codes. 

The New Mexico Construction Industries Commission (the "Commission") sought to adopt changes that would have removed any energy conservation provisions from the New Mexico codes that exceeded the 2009 International Energy Conservation Code (IECC).

The Commission held several public meetings and solicited public comments on the code changes.  Then, at a June 2, 2011 meeting, after a brief and (frankly) confusing statement by the Chair of the Commission, the Commission voted to adopt the code changes without further discussion.

Several groups including the Southwest Energy Efficiency Project, Environment New Mexico, several green builders, the Sierra Club and other sued to overturn the Commission's decision for (among other arguments) being "arbitrary and capricious" due to the Commission's lack of discussion and justification for the decision. 

The Court of Appeals held that the Court could not even determine whether the Commission's decision was valid because the Commission failed to provide "what facts and circumstances were considered and the weight given to those facts and circumstances."  Southwest Energy Efficiency Project v. New Mexico Construction Industries Comm'n, No. 313838, April 4, 2013 (N.M. Ct. Appeals) at 10.  The Court remanded the Codes to the Commission for reconsideration, with a justification of its reasons for its decision. 

The reason why I characterize the decision as a "limited win" is that, assuming that the Commissioners are the same, there is no reason why the decision on the code adoption will change. If the code revisions are again adopted, with justification, the Plaintiffs will have to institute another legal action, and demonstrate that the justification provided by the Commission is arbitrary and capricious. 

However there may be value to the plaintiffs simply by filing the suit and making the Commissioners justify to the citizens of New Mexico in writing why the homes they live in should not be energy efficient. 

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The fifty billion dollar (yes, that's $50,000,000,000) Hurricane Sandy Relief Bill (the "Relief Bill") is headed to President Obama's desk for his signature. The Full Text of the bill is available here http://www.gpo.gov/fdsys/pkg/BILLS-113hr152rds/pdf/BILLS-113hr152rds.pdf 

The Relief Bill provides several different opportunities for the Federal government to encourage states to adopt up-to-date building codes by tying distribution of the funds to commitments from the states to adopt the most up-to-date building codes. 

 According to studies by the Multi-Hazard Mitigation Council, for every dollar invested in building code adoption and enforcement, four dollars are saved in recovery costs.  As a result, FEMA has been very public about the critical role building codes play in reducing building damage from natural disasters. 

David Miller, the Associate Administrator for Federal Insurance and Mitigation Administration at FEMA, testified before the House Committee on Transportation and Infrastructure last year on this issue, concluding:

Post-disaster assessments of many communities have shown a direct relationship between building failures, the codes adopted, the resources directed toward implementation and enforcement, and the services available to support those codes.

Tying emergency relief funds to code adoption would not be new.  Department of Energy state energy block grants from the American Reinvestment and Recovery Act (ARRA) were tied to governors' commitments to adopt the 2009 version of the International Energy Conservation Code (IECC) and ASHRAE 90.1-2007, as I posted in greater detail here http://www.greenbuildinglawblog.com/2013/01/articles/codes-1/2009-energy-code-adoptions-required-by-arrawhere-are-they-now/

Two allocations which could logically be tied to building code adoption commitments are the $5.4b allocated to the Federal Emergency Management Agency (FEMA) for the Disaster Relief Fund and the $16b allocated to the Department of Housing and Urban Development (HUD) for "necessary expenses related to disaster relief, long-term recovery, restoration of infrastructure and housing, and economic revitalization..." (Bill at 74)(emphasis added).

However, in tying emergency fund allocations to code adoption, FEMA and HUD should incorporate some lessons learned through the ARRA commitments.  First, the ARRA commitments only related to a one-time adoption of the 2009 energy-related code provisions.  Second, there was no reporting required from the states on their progress with adoption and enforcement of the codes.  Finally, as I posted here (http://www.greenbuildinglawblog.com/2013/01/articles/codes-1/2009-energy-code-adoptions-required-by-arrawhere-are-they-now/), enforcement of the commitments has been weak.  To be effective, any code-related commitments must require regular code updates, and a mechanism for reporting and recapture of funds for failure to fulfill the code commitments.

Hurricane Andrew ushered in a new era of code adoption on the Gulf Coast.  With some encouragement by the Federal government, Hurricane Sandy could have the same effect. 

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A long time ago in a first term far away, there was the American Recovery and Reinvestment Act (ARRA), a.k.a the Stimulus. 

As explained by the DOE, The ARRA section on State Energy Program funding included a statutory provision (Section 410) linking SEP funding to building energy code adoption and enforcement. As a condition of accepting the ARRA funding, the states provided assurances through governor’s letters indicating their state would comply with the terms of Section 410.

All 50 states took ARRA SEP money, and all 50 governors provided commitment letters commiting to do three things relating to building energy codes:

Adopt a building energy code for residential buildings that meets or exceeds the 2009 International Energy Conservation Code (IECC),

Adopt a building energy code for commercial buildings and high rise residential that meets or exceeds the ANSI/ASHRAE/IESNA Standard 90.1-2007, and;

 Develop and implement a plan, including active training and enforcement provisions, to achieve 90% compliance with the target codes by 2017, including measuring current compliance each year. 

In the four years since ARRA, eighteen states still have no energy code at all or have residential codes that do meet the ARRA requirements, and fifteen states still have no energy code at all or have commercial codes that do not meet the ARRA requirements. A map of the status of every state's energy codes is available here.

I have not been able to find state annual compliance reports or a report by the DOE Office of the Inspector General on the building code commitment aspect of the ARRA funding.   So, there is little, if any, data on when or whether states will comply with their ARRA commitments. [NOTE: I would welcome being proven wrong in this area.  If you have data, please send me a link and put it in the comment section].

Given the vast research that building energy codes are an inexpensive way to acheive energy efficiency, it was a really good idea to tie the ARRA finding to energy code adoption.  Unfortunately, lack of enforcement of ARRA commitments appears to be a missed opportunity to move the country forward in this area.

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PennEnvironment released the "Building A Better America" study today quantifying the benefits of strong building codes and other policies promoting energy efficiency.  A press release summarizing the findings is available here, and the study can be downloaded here. 

The median home in the United States is forty years old, and in Pennsylvania, even older. Because buildings last so long, the Building a Better America study notes that strong building and energy codes are critical to realizing the benefits of a more energy efficient building stock, like reduced energy use and bringing cost savings to companies and families. Enacting strong building and energy codes locks in energy savings for decades to come.

Likewise, weak or outdated codes create a legacy of inefficient and potentially unsafe buildings long into the future. This is the situation that Pennsylvania now faces.

In 2012, the International Code Council, the body that develops the model building and energy codes, issued updates to the building and energy codes that will make new buildings 15% more energy efficient than ones built to the current codes, and 30% more efficient than buildings built to the 2006 codes.

Until 2011, Pennsylvania's building and energy codes were some of the most up-to-date in the nation. Last year, however, the Pennsylvania legislature made a series of changes to the way building and energy codes are adopted. As a result, in January, the committee that updates the codes voted to reject the 2012 updates to Pennsylvania’s codes. The committee also recommended that the Pennsylvania codes be updated every six years, instead of every three years as they are now.

If the committee’s recommendations are adopted, Pennsylvania will still be using the 2009 codes until at least 2018, and perhaps longer. As a result, the reductions in energy use and energy costs highlighted in the Building a Better America study will not be realized in Pennsylvania.

To make this real, look back. If Pennsylvania still used the 2006 codes, buildings built today would be 30% less energy efficient than ones built to the 2012 codes. As the study says, building energy efficiency is only increasing. If we are still building to 2009 codes in 2018, imagine the missed opportunity for energy and cost savings.

In addition to strong building and energy codes, the study also notes the importance of incentives to advance building efficiency. In 2008, the Pennsylvania legislature enacted Act 129, which, among other things, requires electric utilities to provide energy efficiency and conservation programs sufficient to achieve a 3% decrease in electricity use by 2013.

Most of the energy efficiency incentives in Pennsylvania are Act 129 programs offered by the utilities. However, after 2013, there are no additional set goals for energy reduction in Act 129. Rather, Act 129 requires that the Public Utility Commission set new goals, but only if the benefits exceed the costs. Right now, the Commission is in the process of evaluating the cost-effectiveness of the utilities’ energy efficiency programs, and determining whether to set new goals for energy reduction. The utilities are likely to meet the 3% target, so if no new goals are set, the utilities have no obligation to continue their energy efficiency programs after 2013.

The Building A Better America study proves that good policies, including strong building codes and incentive programs are critical for improving building energy efficiency and saving money.
Because of the imminent changes to Pennsylvania’s energy efficiency policies, to ensure that Pennsylvania realizes the financial and environmental benefits highlighted in the study, businesses, organizations and individuals need to speak out now to ensure that Pennsylvania’s policies stay strong, and provide support to Federal, state and local policymakers that advocate for energy efficient policies.
 

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 It has been stated that building energy codes are the “quickest, cheapest and cleanest way to improve energy efficiency in the building sector.” 

Unfortunately, if the January 18, 2012 recommendations of the Uniform Construction Code Review and Advisory Council (the “Advisory Council”) go into effect, Pennsylvania will not adopt the 2012 updates to Pennsylvania’s building and energy codes. The Advisory Council voted to reject the 2012 model codes issued by the International Code Council (“ICC”) in their entirely, except for a few provisions regarding accessibility for the disabled. 

The Advisory Council also voted to recommend that the revision cycle for the Pennsylvania Construction Code be extended from three years, consistent with the international model code update schedule, to six years. If both the rejection of the 2012 codes and the extension of the code revision cycle go into effect, the 2009 codes will be in place until at least 2018, and Pennsylvania may miss out on the environmental and financial benefits of the 2012 code updates, and perhaps even the 2015 updates, as well.   

This means that much of Pennsylvania’s new construction for the foreseeable future will be less energy efficient than “state-of-the-art” construction, placing owners and tenants at a competitive disadvantage compared to forward-thinking neighboring jurisdictions like New York City, Washington DC, and Maryland. 

There is much more to this story.  The full article is available here

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Contributions to this post were made by Nadia Washlick, a Cozen O'Connor intern.

One of the most under-discussed and under-valued aspects of green building law is regulatory enforcement.  Most of the discussion among experts, myself included, tends to analyze new laws and new incentives as they develop.  Frequently, these new legislative and regulatory initiatives pay little attention to the implementation and enforcement requirements that are required for realizing the energy efficiency and environmental benefits the regulations were intended to foster. 

New York's Greener, Greater Buildings Plan compliments its sweeping new regulatory initiatives with recognition of and attention to code compliance and enforcement.

Released in 2007 and designed by Mayor Bloomberg, PlaNYC has brought together over twenty-five city agencies to collectively equip the city for one million more residents, bolster the economy, fight climate change, and enhance the quality of life for all city residents.  Most importantly, these agencies are working hard to enforce the regulatory changes necessary to achieve these goals. 

The City Counsel believes that focusing on buildings will help achieve most of these broad citywide goals as buildings account for almost 80% of greenhouse gas emissions, 94% of electricity use, and 85% of potable water consumption. In December of 2009, the City Council passed four laws known as The Greener, Greater Buildings Plan (GGBP). Collectively, these laws require energy efficiency upgrades and energy transparency in large existing buildings, including annual benchmarking, energy audits, retro-commissioning, lighting upgrades, and sub-metering of commercial tenant space.  The City Council believes that these laws will reduce GHG emissions by at least five percent citywide by 2030. In addition, GGBP will save New Yorkers more than $750 million per year in energy costs and create around 18,000 construction-related jobs, thus helping to bolster the economy. 

Needless to say, PlaNYC is attempting to transform the construction industry in New York City. This daunting task requires developing new regulatory procedures, defining new terms, and codifying these procedures. The New York City Green Codes Task Force, led by Urban Green Council, was established to develop new regulations, amend current laws, and provide new rules for enforcement. The task force consists of more than 200 experts in design and construction and has the duty of developing rules to enforce these new laws.  It has already developed over a hundred proposals to modify City codes and regulations that impact buildings or hinder green building practices, twenty-two of which have since been adopted.   Furthermore, the task force now requires progress inspections during the construction period, as well as energy analyses and drawings from engineers and architects before construction begins to prove the designs meet current energy code requirements. The task force aims to achieve 90% energy code compliance by 2017 through both stringent enforcement and energy code training for designers.

New York City was recently ranked number seven on a list of the nation’s top ten most “climate ready” cities. In coming years, the city’s ranking is likely to rise as PlaNYC comes into effect. With such rigorous enforcement, it is no wonder why PlaNYC has been deemed “the most comprehensive set of efficiency laws in the nation.” If successful, the plan will surely be a blueprint for other cities hoping to achieve climate readiness. 

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     Contributions to this post were made by Eli Wolfe, 2011 Cozen O'Connor Summer Associate.

     On May 12, 2011 the Energy Savings & Industrial Competitiveness Act (ESICA) of 2011 was introduced by Sens. Jeanne Shaheen (D. N.H.) and Rob Portman (R. OH). The Act creates a national strategy to increase use of energy efficiency technologies through a national model energy code, enhanced appliance standards, DOE loan guarantees for energy efficiency projects and a variety of other initiatives.  A summary of the bill is available here, and the bill itself is downloadable here.

    As I predicted here, ESICA resurrects the concept of a national model energy code which was first intorduced as part of Waxman-Markey (cap-and-trade).  Pursuant to ESICA, the DOE would essentially establish and regularly update national model building energy codes for residential and commercial buildings from baselines of the 2009 International Energy Conservation Code (IECC) and ASHRAE Standard 90.1-2010. The DOE would establish goals of zero-net-energy for new residential and commercial buildings by 2030. Energy savings targets would be set at the maximum level of energy efficiency that is technologically feasible and life-cycle cost effective, taking into account economic considerations.

   Within one year of any revisions to the IECC or ASHRAE Standard 90.1, the DOE would be directed to determine whether the revisions improve energy efficiency and meet the targets. If so, then the revisions would be established as the national model building energy code. If not, the DOE would recommend changes to improve the codes to meet the target, and IECC or ASHRAE would have 180 days to incorporate changes to meet the targets. If the revision still did not meet the target, then the DOE would establish a modified national model building code that does, based on the latest edition of the IECC or ASHRAE Standard 90.1.

     Within 2 years of the establishment of a national model building energy code, states would be required to certify whether they have updated their codes. Within 3 years of certification, the state would certify whether or not they either:

1. Achieved compliance: at least 90% of building space covered by the code substantially meets code requirements, or excess energy use for non-compliant buildings is not greater than 5% of energy use of all covered buildings; or
2. Made significant progress: the state has developed and is implementing a plan for achieving compliance within 8-years of enactment, and is meeting compliance targets under the plan.

   If a state does not meet the requirements, it must submit a report to the DOE explaining the status of the state’s efforts to reach compliance and a plan to do so. In states out of conformance, localities would be allowed to meet the certification requirements themselves. Conformance to this section may be required by the DOE as a prerequisite for grants or other support for code adoption/compliance activities. The DOE would provide technical assistance and incentive funding to states on building energy codes, and additional funding would be provided by the DOE to states or local governments in conformance to improve compliance. Up to $750,000 per state could be used to train state and local building code officials.
 

   The ESICA concept builds on the American Reinvestment and Recovery Act model which tied funding to updating building codes, and the 2005 energy bill requirements that DOE evaluate model energy codes, and that states demonstrate that the provisions of its commercial building code regarding energy efficiency meet or exceed the DOE approved standard.

   The question I am pondering is whether a national model code tied to net-zero construction has a hope of seeing the light of day, or are the barriers too great?

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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.    

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Today the International Code Council released its Green Construction Code for public comment today.  You can download a copy here. The objective of the IGCC is

to develop a Green Building Code for traditional and high-performance buildings that is consistent and coordinated with the ICC family of Codes and Standards.

I have previously posted on the importance of such an effort here.  Public comments can be made on the IGCC until May 14, 2010.

Once finalized, the IGCC can be adopted by local governments, and comport with the already existing building codes. 

One interesting diversion from prior building codes is the integration of post-occupancy reporting.  According to the AIA:

When the building is complete and the C of O is issued, building owners will be required to submit a commissioning report to the local code official within 18 to 24 months. This report will detail how the building has performed in terms of energy efficiency, building envelope performance, water use, lighting controls, etc. The report can be completed by the primary designing architect, or by a third party designated by the client or building owner. In either case, the local code official must approve the commissioning agent that completes the report. If a building does not meet its performance goals, the commissioning report will document why and prompt the parties involved in its design and construction to improve it.

Such post-occupancy requirements, and performance reporting, will elicit the usual hand-wringing from green building law practitioners like me about what will become of buildings which do not perform to their expected levels, and what enforcement mechanisms will be implemented by local governments to require building owners to fix underperforming green buildings.  Nonetheless, if buildings are going to be required by law to meet green standards, it is important that some mechanism is in place to confirm compliance.

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I have previously posted about the hazards of ossified building codes when confronted with new green technologies.  Waterless urinals appear to showcase this issue dramatically.  Last week, Chicago's city government announced that it was ripping out the waterless urinals installed in City Hall.

The problem is that Chicago's building code requires commercial buildings to use copper pipes in indoor plumbing. But the U.S. Army Corps of Engineers specifically states that drainpipes for waterless urinals "cannot be made of copper pipe, which corrodes."

This has led to a stinky situation--"with the corrosion causing urine to build up in the wall behind the men's room."

Building codes are not the only issue which has plagued waterless urinal installation.  According to the Philadelphia Business Journal, in Philadelphia's Comcast Center,

Philadelphia's Plumbers Union Local 690 did not want to install the waterless urinals because it would have required the laborers to do less work, according to published reports. As part of the compromise, the two sides have proposed that Liberty and city officials monitor performance of the urinals.

The compromise that was reached was that the Union installed piping in the walls that would allow for conversion to flush urinals if there are problems with the waterless ones.
 

When new technology meets old infrastructure--be it copper piping or entrenched union interests--the results can be...stinky.  In addition to the stench, who pays for removing the urinals and converting to ordinary fixtures? What happens if removing the waterless fixtures makes a building lose its LEED status?  Who is at fault for causing the waterless fixtures to fail? The installers? The architect? The owner/user? 

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Yesterday, I discussed why I thought the ICC Green Building Code project was important enough to put off my knitting lessons for.  But you don't have to take my word for it. 

Maureen Guttman, AIA,  Executive Director of the Pennsylvania Governor’s Green Government Council and Member of the ICC Sustainable Building Technology Committee, agreed to talk to Green Building Law Blog about why she felt the ICC Green Building Code Project was significant to sustainability and the Commonwealth of Pennsylvania.   

Guttman is an active leader in the architecture profession, recently serving as the Pennsylvania representative to the American Institute of Architects Board of Directors. She is a recognized expert on building codes and green building policy, and has been instrumental in the development and passage of several pieces of related legislation in Pennsylvania. 

GBLB: Why are you involved in the ICC Green Building Code Project? 

MG: I have been involved in building code stuff for years. I view it as a major obligation of the professional responsibilities as a licensed architect. Building codes are a playbook for the designers of buildings, so compliance with the codes is one of the very fundamental principles that our license is predicated on.

I believe that all architects should be involved in aggressive code awareness. This was one of the things I pushed for on Board of AIA. I think that architects who are not involved in code development and awareness are missing out on what adds value to our profession.

GBLB:  What makes the Green Building Code Project so important? 

MG: This is an unbelievable opportunity to bring together the rules of the game with respect to health safety and welfare and layer on top the environmental health which we are charged with safeguarding. The idea of tying together the tenets of building health and safety and commitment to sustainability and tie it with regulatory procedure is a very exciting opportunity for me personally and for the Commonwealth of Pennsylvania. It is a good sign in terms of our commitment to codes that there are so many of us on the committee involved in developing the green building code—Pennsylvania is obviously a player.

GBLB:  What is the future of the Green Building Code? 

MG: It’s going to be very controversial. It is such a new way of thinking that there is going to be resistence. But hopefully it will provide some uniformity in what municipalities are enforcing as a ”green building". I hope it will also help the existing rating organizations promote ever more advanced sustainable initiatives—keeping the codes on its toes.

GBLB:  What is the future of the Green Building Code for Pennsylvania? 

MG: I’d like to think the green building i-code can be adopted in Pennsylvania as part of the process for adopting new codes. I envision a lively debate on it. I hope that Pennsylvania will be one of the first states to adopt it. It may be on a roll-in or an incentive basis. I hope that Pennsylvania will be at the forefront of pushing the adoption of this code. This will be a slam dunk measure to make some climate change goals achievable, as sole reliance on market incentives may not get us as far as fast.
 

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In the interests of full disclosure, I am a member of the International Code Council's team crafting a Green Building Code. 

Accoding to the ICC:

The objective of this new project is to develop a Green Building Code for traditional and high-performance buildings that is consistent and coordinated with the ICC family of Codes and Standards.

After LEED, Green Globes, BREEM, Energy Star, NAHB Green and the prospective ASHRAE 189, why on earth do we need another green building standard? Is it simply to give people like me something to do in their spare time (I had thought about taking up knitting)? The answer is definitely not. 

As articulated above, the point of the ICC Green Building Code is to be consistent with the other I-codes which most jurisdictions have adopted (or tweaked) as the basis of their building codes. Thus, builders building green buildings must adhere to two standards at least--the conventional I-Code based building code, and the green building standard.  This has caused many issues, including the waterless urinal fiasco, in which waterless urinals were prohibited under conventional code provisions.  By integrating a green building standard with the building code, these types of headaches can be minimized.

In addition,  code officials and policiticians are comfortable with adopting and utlizing I-Codes as the basis for building regulations.  Thus, municipalities do not have to reinvent the code wheel when looking to implement green building practices.

Finally, a solid compromise green building code can advance green building as the default standard.  In California, which has adopted a green building code, various interest groups, including the California Building Industry Association, have come on board with the code. 

There will always be a place for aspirational green building standards.  LEED, for example, should provide new and innovative and more challenging ways to reduce GHG emissions, materials usage, enhance energy efficiency, etc.  The goal of a code, however, should be to raise the floor of all buildings to a greener baseline.  ICC's Green Building Code effort is a step towards making that happen.  So, for me, knitting will have to wait.

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Today on CNN.com, there was a little piece on the non-acceptance of aerated concrete material pursuant to the California Building Code. 

According to CNN:

AAC is a mixture of sand, water, lime, portland cement and aluminum powder that is formed into blocks and cured in an autoclave, a sort of industrial pressure cooker. It has been used in Europe, where it was invented, for more than 70 years.

Besides being fire-resistant, AAC also deadens sound, is energy efficient, is impervious to termites, is bulletproof and waterproof, generates no waste in its creation, and can be recycled, its fans say.
 

We all know how important it is to live in a green, not to mention bullet-proof, structure, so one would think that a progressive state like California would allow for the use of this material.  Not so, says CNN.com, because AAC has not been tested for its seismic resistance.

"Autoclaved aerated concrete cannot be used to resist seismic forces because it has not been seismically tested," said David Walls, executive director of the California Building Standards Commission in Sacramento. The restriction is based on guidelines from the National Earthquake Hazards Reduction Program, he said.

The AAC issue is illustrative of the issues which accompany incorporating new materials into traditional building code structures. 

First, you have the issue of overlapping regulatory interests, like promoting energy efficiency and preventing buildings from crushing people during earthquakes.

On top of these regulatory interests, you have administrative considerations.  Most states adopt the International Building Code or some form of it on a regular schedule.  New materials and products may emerge as salient between upgrades to new code systems.  In addition, not all of the code may be adopted.  In this case, California adopted the 2006 IBC without the companion housing code which would have included acceptance of AAC in seismic areas, according to a CNN.com source. 

Finally, there are the political considerations.  From the AAC example, manufaturers of competing products may intrude with acceptance of the provisions of the building code which allow for new materials.  

Greening the building codes is not a simple task--competing administrative, regulatory and political forces must be managed and balanced.  Even with the best of attention to each of these considerations, there will always be examples like AAC which fall through the cracks. 

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At the National Association of Home Builders' Green Conference in Dallas this weekend, conversation turned to retrofitting buildings.  There was universal acknowledgement among the homebuilders I spoke to that building new homes was going to be dwarfed by retrofitting and renovating existing dwellings for the next decade.   

There has been a lot of discussion about upgrading building codes to incorporate green standards.  ICC is working on a commercial green code, and ASHRAE recently released a new draft of standard 189, also for commercial green buildings.  NAHB developed an ANSI/ICC standard for residential green building, NAHB Green.     

The problem? Many building codes do not apply to residential renovations. In Pennsylvania, the Uniform Construction Code does not apply to: 

(8) Alterations to residential buildings which do not make structural changes or changes to means of egress, except as required by ordinances in effect under sections 303(b)(1) or 503 of the act (35 P. S. § § 7210.303(b)(1) and 7210.503). Under this subsection, a structural change does not include a minor framing change needed to replace existing windows or doors.
 
(9) Repairs to residential buildings, except as required by ordinances in effect under sections 303(b)(1) and 503 of the act.

So, even if the building codes are upgraded to be "green," many home renovations will not need to comply, thus leaving behind a big chunk of existing building stock.

One possible solution is to apply the standard new construction building code to all projects.  New York has recently announced its intention to do this with respect to its Energy Code.   Opponents argue that forcing every small house renovation to comply with the components of the comprehensive building code would be unnecessarily costly and burdernsome.

The other is to develop an existing building code, alongside the building code for new construction, that applies specifically to retrofits.  The ICC already has an existing building code, and it could be used as a base for creating appropriate green requirements for even small renovations.  The key is keeping the requirements simple and focused on key green priorities which can be addressed in even the smallest kitchen renovation--construction waste management, energy efficiency, water conservation, indoor air quality, and materials reuse. 

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The International Code Council, the non-profit organization which develops and maintains the International Building Code, announced on Earth Day that they were creating a new "green" commercial building code which would be in line with the ICC's other building code products. 

ICC codes are "consensus" based codes, so the process for developing the code involves:

• Convening a select drafting committee
• Inviting public comment on the initial draft
• Placing the final draft into the ICC code development process

This code may address the common criticism of LEED and other green building standards that they are not designed to be incorporated into building codes, and that they are not specific enough to be used as legal platforms. 

ICC is not the first organization to attempt to create a building-code friendly standard for green.  ASHRAE convened a committee to develop Standard 189.1 several years ago 

Proposed Standard 189, Standard for the Design of High-Performance Green Buildings Except Low-Rise Residential Buildings, will provide minimum requirements for the design of sustainable buildings to balance environmental responsibility, resource efficiency, occupant comfort and well-being, and community sensitivity. Using USGBC’s LEED Green Building Rating System, which addresses the top 25% of building practice, as a key resource, Standard 189P will provide a baseline that will drive green building into mainstream building practices.

Standard 189P will be an ANSI-accredited standard that can be incorporated into building code. It is intended that the standard will eventually become a prerequisite under LEED.
 

After releasing a draft standard in 2007, the ASHRAE dissolved the original committee in late 2008, and reconstituted it at the beginning of 2009.  There was a great deal of scuttle that the committee was dissolved because major builders, manufacturers and developers did not have enough of a say in the development of the standard. 

It will be interesting to see if ICC will be more successful that ASHRAE in developing a commercial green building code, and whether that code will, in fact, be green.  ICC developed a residential green standard with the National Association of Home Builders, and the criticism of the NAHB Green standard is that the requirements are not as stringent as LEED for Homes.  We shall see if the ICC green commercial standard will incorporate the same green requirements as LEED-NC. 

Finally, even creating an ICC green code will not solve the issue expressed by code officials that there is a lack of expertise and training in green construction.  In fact, if the ICC code is developed and adopted in municipalities and states across the country, a much greater investment will be required in training, education and expertise to ensure that the codes are implemented and enforced properly.

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Last week was a bit quiet here at Green Building Law Blog as I attended a conference in Atlanta hosted by the EPA on greening building codes.  The invitees to the conference were code officials, EPA personnel, developers, architects, non-governmental organization reps, a couple of attorneys and assorted other municipal and state officials.  It was a great group and a well facilitated conference.

The first day of the conference was devoted to identifying barriers to greening the building codes.  The barriers fell into 7 categories:

1. Procedural--lack of communication among stakeholders, lack of integration among agencies and codes (plumbing codes, etc.), no clear process for obtaining variances to statewide building codes, overextended staff resources, lack of enforcement of current codes

2. Capacity--Lack of experts in green building amongst code staff

3. Education/Perception--Green seen as elitist, expensive, difficult; Lack of certification and training amongst code officials, lack of examples

4. Legal--Standards of proof higher for green buildings than standard buildings for approvals, Federal and state preemption, conflicts with other laws (fire code, historical preservation), LEED not designed to be integrated into codes, risk of liability

5. Technical/Research--Lack of performance data on green systems and technologies, lack of definitions of green terminology, lack of clearinghouse of information on best practices, inaccessibility of financial data and cost/benefit analyses

6. Political--Partisanship, status quo interests, unions, property rights advocates, lack of political champion for greening codes

7. Financial--budget shortfalls (especially because of recession), jurisdiction for funding (state vs. local allocation) for code changes

Some of these barriers are more perception than reality, but perception is reality when it comes to making political change.  In addition, most are very real---code changes require policial will and resources, and good communication among stakeholders both within the government and with the regulated community.

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A bill was introduced in Michigan to allow municipalities the flexibility to create stretch building codes, including incorporating LEED into their codes.  The article is available here.

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I have been discussing the difficulties of greening building codes with municipal officials nationwide this week.  There are really two problems: 1) legacy codes which inhibit green building practices; and 2) state and federal laws which prevent municipalities from upgrading their building codes.

The East Hampton Star had an article about the problems of legacy codes. The town required asphalt paving, where developers wanted to use greener pervious paving materials.  They had to convince the township to allow the alternate material.  This causes delays and added cost to the building process.

Many municipalities and states (including my very own Philadelphia and Pennsylvania) are looking to revise their building codes to allow for greener practices, and in some cases (like California) require them.  However, many municipalities face state-wide mandated building codes which preempt their efforts to enhance their building codes.  In other localities, there is a resistance to implementing a new mandatory greener code. 

This week I heard from two sources about an interesting way to thread this needle.  Local governments are enacting "voluntary" appendices to their building codes outlining approved green practices.  This has many benefits.  First, it educates builders and municipal officials in green building practices.  Second, it builds municipal capacity slowly to understand, evaluate and approve green practices.  Third, it solves the East Hampton problem by having pre-approved green alternatives to the standard building code. 

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