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

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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In my summary of my experiences at Greenbuild, I blogged:

The economy tanking may be the push needed to implement basic green changes like energy efficiency and conservation. The next big green thing is likely to be blown insulation, not photovoltaics.

Let's define our terms first. Futurelab has a nice succinct definition of both:

Energy efficiency means that users of powered devices can get the same enjoyment or use out of a more efficient device that uses less energy. Energy conservation is a planful pattern of human action by which energy use is avoided.

In order to effectively reduce our energy consumption, we need to do both.

To date, much of the action in green building legislation has encouraged higher complexity energy efficiency technologies, like tax incentives for photovoltaics. There is nothing wrong with incentivizing solar, but it is not the most efficient use of the first dollar invested in green building.

Instead, green building legislation should include incentives which encourage energy efficiency and conservation measures first, and longer term/higher cost measures later. One regulatory mechanism for acheiving this is to require each project seeking government funding to have an energy audit. The audit would identify a suite of energy efficiency and conservation measures to be implemented, and the cost and savings associated with each. The legislature could then tier its incentives to compensate the highest energy v. cost savings as determined by the audit.

In addition, the federal government could enhance national building standards for energy efficiency. States and local government could incentivize simple energy efficiency and conservation measures--like the afforementioend energy audits, enhanced insulation, cool roofs, efficient HVAC systems, and new windows and doors
[The DOE has a list of short and long term energy efficiency measures]

With fewer dollars, both public and private, available due to the economic crisis, we need to maximize the cost/benefit calculus by identifying the most efficient energy saving techniques. In other words, we need to make pink (insulation) the new green.

UPDATE: Christian Science Monitor had a nice little article on this subject. They did not, however, have many creative ideas about legislating for energy efficiency.

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Vote for the next head of EPA at Grist

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I spent yesterday afternoon at a board retreat for the Delaware Valley Green Building Council. Much of the discussion focused on the appropriate level of education/outreach to disseminate green building knowledge and transform our built environment. Should policy influencing bodies focus on wholesale change by targeting education/outreach to thought leaders, or retail change by targeting individuals or households?

One of the elements which has gotten lost in the discussion of small versus big government and government lobbying is government's role in transforming wholesale change into retail change. Policy influencing bodies like the DVGBC, USGBC, etc. can use their limited resources on education and outreach to policy makers, who in turn make laws which change the behavior of innumerable individuals.

Green building laws are an excellent example of this transformation. This election cycle, there are several green initiatives on the ballot. For example, a $17.9billion initiative in Washington for improvements to commuter rail and bus service http://law.lexisnexis.com/practiceareas/Environment-Climate/179-billion-clean-transit-plan-on-Seattle-area-ballot.

Additionally, Oregon and New Jersey have been developing comprehensive green building regulatory initiatives. Oregon--http://www.natresnet.org/resblog/post.asp?iPostID=7105; New Jersey--http://www.njlawblog.com/2008/10/articles/real-estate/green-building/legislative-initiatives-in-green-building-arena-abound/

As a result of these laws, buildings in these states will be greener and the environment cleaner, of course. But builders in these states will develop knowledge and experience with green buildings, a market for green products will be enhanced, and consumers will have more green products and buildings to choose from. In short, the benefits will move from the thought leader level to the grassroots level. At its best, lobbying and government outreach is a tool for educating thought leaders who can change policy, thereby transforming the world for the better.

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Buildinggreen.com had this post today stating that the ASHRAE/USGBC committee putting together the code-based version of LEED had been disbanded. http://www.buildinggreen.com/auth/article.cfm/2008/10/17/Uncertain-Future-for-ASHRAE-Standard-189/

I saw ASHRAE 189 as a mechanism for quashing the issue of incorporating LEED into regulations. Many people have voiced concerns over incorporating private standards, like LEED, into public law. This is, in my opinion, an ill-informed critique. The International Building Code is maintained by a private standards organization, the International Code Council, and is incorporated into almost every municipality's building code. I saw ASHRAE 189 as a similar model. In addition, ASHRAE 189 would have eliminated the legal risk to USGBC that the USGBC would be sued for not approving buildings quickly enough by automatically incorporating LEED standards into law without the need for approval of individual projects by USGBC. This is not good news for the regulated community.

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I have been reading a lot about offshore wind farms--see for example this article about wind mills off of Portland, http://greenwombat.blogs.fortune.cnn.com/2008/10/06/oregons-floating-wind-farm/ and this one about windmills being built on canals in England. http://www.treehugger.com/files/2008/10/100-megawatts-of-wind-turbines-along-british-canals.php Strikes me that some issues surrounding riparian rights may emerge from this new technology.

A riparian owner is one who owns property with water on it or on one of its boundaries. Riparian rights are the rights that owner has to the use or restrictions on others' use of that water. Riparian issues were very big in the late 19th century when factories were being built on watercourses, and the right to use the water to power factories needed to be allocated. See, e.g. this nifty 1891 book excerpt on riparian rights from Google books http://books.google.com/books?hl=en&id=0KcOAAAAYAAJ&dq=riparian+rights&printsec=frontcover&source=web&ots=Igne8AO5t-&sig=_AqoAnduMjRM-Q4Pn9okgLAZO-c&sa=X&oi=book_result&resnum=4&ct=result#PPP9,M1

In many instances, public entities (states, counties, etc.) have riparian rights. These rights may become very valuable if the water becomes desirable to develop as a wind farm. In other circumstances, the ownership may be private, perhaps inhibiting the development of a wind farm where it will be in the public good. This could cause a public entity to "take" the riparian right from the landowner to build a wind farm. Historically, riparian rights are generally not severable from the land to which the riparian course is attached. If, however, the water becomes a power source, should the riparian rights be severable, like mineral rights or oil leases?

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Sustainlane has determined that Portland, OR is the greenest city. http://www.sustainlane.com/us-city-rankings/ Why? Because of the progressive land use restrictions and urban growth boundaries established in the 1970s. "That's "City-planners in Portland have been thinking green since the 70s, when the rest of the country was still embracing the strip mall. The city enacted strict land-use policies, implementing an urban growth boundary, requiring density, and setting a strong precedent for sustainable development." In addition to "green building" regulations, strong land use regulation that limits sprawling suburban development is necessary to make communities green, as is support for effective infrastructure and public transit. Without these supports for green buildings, all that is going to be developed is more auto-dependent green sprawl.

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Federalism, one of the founding principals of American democracy by which states (and through the states, cities, counties and municipalities) and the Federal government have there own spheres of governance, may ultimately strangle effective green legislation.

I wrote on the blog earlier this summer about a suit filed by HVAC indsutry associations challenging Albuquerque's green building code claiming that the energy requirements for the HVAC equipment was preempted (i.e. already regulated) by Federal law. http://greenlaw.blogspot.com/2008/07/green-building-litigation-hits-in-new.html

Yesterday, "Following months of debate and squabbling, the House of Representatives just passed a bill that could open America's coasts to offshore drilling, as well as extend the tax credits for clean energy and offer other incentives for clean power and green transportation." http://earth2tech.com/2008/09/16/house-approves-offshore-drilling-extends-clean-energy-credits/ One of the complaints Earth2Tech noted that the Republicans have voiced about the bill is that "the bill also creates a federal renewable portfolio standard that would require 15 percent of the nation's electricity to be generated from renewable sources. Going beyond states' mandates is viewed as a form of "big government" with which Republicans disagree."

In short, the Republicans are saying that the Federal government shouldn't pass sustainability regulations, and certain interest groups are suing to prevent states (and through them, municipalities) from regulating, it could create a quagmire in which no government entity is able to effectively pass sustainability regulations.

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People in the Hamptons are not like you and me. This week Southhampton voted into law a series of green regulations mandating environmental requirements for homeowners. One of the criticisms of the regulations was the following:

"For the existing homeowner this is nothing more than a tax," Bergenthal said. "I spent $300,000 for landscaping. Why should I have to look at a God-awful solar heating system."

http://www.hamptons.com/detail.ihtml?id=4811&apid=9775&sid=27&cid=54&hm=1&iv=1&townflag=

Granted, given the current state of the economy and the threat of global warming, you may not be feeling much sympathy for Mr. Bergenthal and his $300,000 landscaping, but his criticism of the Southhampton law does bring into high relief the ingrained animosity Americans have towards having their private property regulated--especially their homes. I believe that regulation of government and commercial green buildings will be accepted much more easily (although suits in NM and FL are already challenging some laws) than will regulations targeted at homeowners.

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The Sun-Sentinal in Florida had this article on the Mayor of Boynton Beach challenging the Florida Governor's mandate for public buildings to go green based on increased cost to taxpayers--http://weblogs.sun-sentinel.com/news/politics/palm/blog/2008/08/going_green_in_boynton_beach_c.html

This is an interesting front--public fisc vs. public health. Which will win out? What is the real "public good"?

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This week has seen several interesting Green Law posts around the blogosphere:

Earth2Tech had a report on Bill Clinton's speech outlining 10 things the government can do to promote green power--http://earth2tech.com/2008/08/18/bill-clinton-10-things-the-us-government-should-do-for-clean-power/

My friend Stephen Del Percio at greenbuildingsnyc had an excellent post on green building litigation brought in Maryland--http://www.greenbuildingsnyc.com/2008/08/20/the-anatomy-of-americas-first-green-building-litigation/

And Worldchanging had one on Calfornia carbon shares for individual citizens.
http://www.worldchanging.com/archives/008366.html

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I found a neat resource from the AIA trust--a list with links to all nationwide green building regulations. http://www.theaiatrust.com/goinggreen/2008GreenPaperAppendixA_CurrentSustainabilityLaws.doc

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On Tuesday, Washington DC Council unanimously passed The Clean and Affordable Energy Act of 2008, which includes a mandate for benchmarking buildings' energy efficiency via the Energy Star program.

http://www.costar.com/News/Article.aspx?id=F61C029F278482B155D050AA2DCFCB56&ref=1&src=rss

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On Friday, China announced it would " ban more than one million cars from the streets during the Olympics in an effort to curb pollution and ease traffic gridlock." Once the Chinese government decided it wanted to do something about the wretched pollution in Beijing, it simply acted.

This type of massive action in response to an environmental problem is something a democracy has trouble with. For example, the New York state assembly failed to pass congestion pricing for New York City to ease traffic and pollution earlier this year. http://www.edf.org/article.cfm?contentID=6618

Similarly, US politicians in power and candidates have failed to put forward a comprehensive environmental plan which would address climate change in a significant way. Although I do appreciate democracy's many virtues, I sometimes wish that we had a government which could implement major change on the environmental front simply by deciding to act.

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Further to my post here http://greenlaw.blogspot.com/2007/07/can-state-rein-in-mcmansions.html, MSN has an interesting article on McMansion regulation today. http://realestate.msn.com/buying/Articlenewhome.aspx?cp-documentid=418653

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Further to my October 21, 2007 post, on October 17, 2007, the National association of Home Builders testified before Congress advocating incentives to promote green building as opposed to mandatory building code changes-- http://www.nahb.org/news_details.aspx?sectionID=148&newsID=5499.

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A number of posts have been popping up in the blogosphere about new regulations for green building and global climate change. For example, greenbuildingsnyc have a nice piece about the three green building regulations waiting for Governor Schwarzenegger's signature--http://www.greenbuildingsnyc.com/?p=314-- and Earth2Tech discusses John Doerr's speech at a Silicon Valley conference noting that the high-profile Kleiner Perkins Caufield & Byers partner called for greater participation by the government in driving greentech forward according to Earth2Tech--http://earth2tech.com/2007/09/26/john-doerr-we-need-government-to-drive-greentech/.

All of this is evidence of what I consider to be a governmental leadership vacuum at the federal level. Despite the historical success of large scale envrionmental regulation, like the Clean Water Act adn the Clean Air Act, and the recent success of requiring sustainable energy sources at the state level--http://sustainablog.blogspot.com/2007/09/maria-energia-numers-are-in-renewable.html-- at the climate meeting last week, George Bush is still pushing the market-based approach to dealing with environmental issues. http://www.thedailygreen.com/2007/09/28/president-bush-technology-and-trade-will-fix-global-warming/7340/

Recently, even the energy industry is seeking regulatory guidance. http://www.worldchanging.com/archives/007333.html Businesses and citizens cannot thrive in a world of uncertainty, and global climate change is creating a lot of uncertainty. It is the government's obligation--indeed its highest use--to use regulation to create a more secure climate for people and business. The federal government has essentially let down its part of the social contract by failing to provide leadership--in the form of mandatory regulations--to address global climate change.

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Since the end of the Clinton administration, environmental regulation in the United States has largely been the domain of the states and local governments. This eventuality is somewhat counter-intuitive. Environmental damage has traditionally been a prime candidate for federal regulation because of its cross-border effects. The pollution which is generated in Mississippi will blow into Alabama, the water which is used in Colorado is unavailable in California. The first federal regulation of the environment in the 1970s and 1980s was basically established on this premise.

However, the lack of federal action on global warming s has created a well-spring of creative legal experimentation with local control of cross-border problems. For example, California is proposing to triple its greenhouse gas regulations over the next few years, proposing regulations requiring trucks and trailers to be fitted with devices to reduce aerodynamic drag, setting standards to reduce perfluorocarbon emissions in the semiconductor industry and having workers at tuneup and oil-change shops check tires for proper inflation as part of the service. Several states have developed anti-sprawl initiatives, including urban growth boundaries, open space preservation requirements and tranditonal neighborhood development zoning plans. SQUARING THE CIRCLE ON SPRAWL: WHAT MORE CAN WE DO? PROGRESS TOWARD SUSTAINABLE LAND USE IN THE STATESNAME, Patricia E. Salkin, 16 Widener L.J. 787 (2007). Most significant may be the regional and even international accords which are developing, including the Regional Greenhouse Gas Initiative in the Northeast--http://www.rggi.org/-- and the Western Climate Initative--http://www.westernclimateinitiative.org/Index.cfm.

But the ultimate question remains--can a non-federal patchwork of environmental regulations effectively combat global warming? I think not. There will be states and regions that lag behind, failing to regulate pollutants. Companies interested in avoiding the regulations will relocate to those areas with fewer regulations. The federal government maintains its ability to preempt any state or regional regulations, so that the federal government can clip the wings of any local or regional regulatory scheme.

However, state and local action may be responsible for shifting the federal government towards further regulation, and providing a pre-tested set of initatives which could be scaled up to the national level under new leadership.

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The new director of the Bureau of Land Management, the government agency that controls Federal lands, has done something pretty appalling. He has exempted certain activities--like grazing, oil exploration and forestry--on Federal lands from the requirements of the National Environmental Policy Act. See a full article from Daily Green here http://www.thedailygreen.com/2007/08/14/gov-exempts-258-million-acres-from-environmental-review/5194/.

My question--does he have the authority to do so? I think it would certainly be up for legal challenge--can an executive branch official relieve obligations under a legislative branch mandate?

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Today's post seeks to answer a question which I have received numerous times--where do I go for information on green building regulations. The answer is simple--there is no one place. I keep my eye peeled for announcements by municipalities--see new ones in Portland--http://www.cleanedge.com/story.php?nID=3570, West Hollywood--http://www.buildinggreentv.com/keywords/green-building/1068, and Baltimore--http://legistar.baltimorecitycouncil.com/detailreport/?key=3289.

But there are a few resources which have lists of relevant laws and regulations:
A favorite resource of mine is DSIRE's list of incentives and regulations, available here http://www.dsireusa.org/library/includes/map2.cfm?State=ca&CurrentPageId=1&EE=0&RE=1.

Another is Smart Communities Network--http://www.smartcommunities.ncat.org/buildings/gbcodtoc.shtml. The Smart Communities list is nice, if a little dated.

The USGBC has a list as well, which is hard to find directly on their website--http://www.usgbc.org/DisplayPage.aspx?CMSPageID=76&#12.

Certain cities and states list their incentives and regulations in a user friendly fashion, especially Seattle--http://www.seattle.gov/dpd/GreenBuilding/OurProgram/PublicPolicyInitiatives/DevelopmentIncentives/default.asp.

Chicago has a nice website with green resources--http://egov.cityofchicago.org/city/webportal/portalEntityHomeAction.do?entityName=Chicago+Center+for+Green+Technology&entityNameEnumValue=161.

I would advocate that the Council of Mayors or similar organization should create a resource which consolidates green building regulations of various municipalities in one place. For now, I will try to be on the look out for more lists and keep up to date on green building laws as they come to my attention.

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Green Wombat had a nice piece today on wrangling over the rights to build wave power plants. http://blogs.business2.com/greenwombat/2007/07/pge-san-francis.html

The use of wave power will undoubtedly threaten coastal environments. I blogged last week about the high output solar plants being developed, which would require power lines through park land. Some legal compromises will need to be made between current environmental laws and the proliferation of new power plants.

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Although what happens in Vegas is supposed to stay in Vegas, what has happened to tax incentives for green building in Las Vegas could spell trouble for the rest of the nation as state and local governments use tax incentives to encourage green building.

In 2005, the Nevada legislature established sales tax exemptions and a property tax exemption -- worth up to 50 percent of the property value for up to 10 years -- to projects that qualify under the Leadership in Energy and Environmental Design standards. Projects meeting the silver level of certification were eligible for a 35 percent property tax break.

Two years later it became clear that so many projects qualified for exemptions that the state budget was going to be severly impacted. There was a good deal of legal hand wringing while it was determined whether the tax break could be repealed. On May 3, 2007, the Nevada legislature voted to put the breaks on hold. On May 14, 2007, the governor vetoed the suspension bill. http://vegaspundit.typepad.com/vegas_pundit/files/greenvetodocs.pdf

On June 4, a compromise bill was passed. According to the Nevada Appeal, "AB621 preserves substantial tax breaks, between 25 to 35 percent in property taxes for up to 10 years, but requires that developers meet higher standards for energy efficiency. The breaks also do not apply to money owed to school districts. The bill also gets rid of sales tax exemptions on construction materials provided by the 2005 law." http://www.nevadaappeal.com/article/20070604/ELECTIONS/106040094&SearchID=73287969383746

More politics, more lobbying, and the the tax panel is now set to consider a proposed regulation to implement the new law on Aug. 6. According to at least one commentator, the new law is likely to have as large loopholes as the original one. http://www.lasvegassun.com/sunbin/stories/commentary/2007/jul/18/566616784.html

So what happened here? Clearly the idea was a good one--use the government's fiscal levers to encourage green building. But hurrying to implement a law before the implications could be thoroughly investigated may have done more harm than good. Now the lawmakers are having to find a way to scale back the incentives, and crushing any further progress for green building intiatives in Las Vegas for some time to come. And there are few places in the country who need to be concerned about conservation--especially water conservation--more than Las Vegas.

I believe that this is only the first legal explosion in the green building area--there are so many new laws and regulations being passed as government bodies seek to jump aboard the green building bandwagon. Financial incentives for green building have a surface appeal--they don't mandate anything, so opposition is generally limited, and they can be counted as "doing something" about environmental concerns. But all incentives are not good incentives--the key is for governments to develop careful, measured incentives by asking two key questions: what will the full fiscal impact be and will the incentive cause changes in behavior which could not be acheived by other, less costly methods. Governments cannot abdicate their responsibility to make good, effective laws which will encourage and enable green building for decades to come by passing easy, ill-thought-out tax breaks.

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Although slightly off the strict green building theme, an interesting intiative in Colorado caught my attention. http://www.time.com/time/nation/article/0,8599,1643151,00.html

In short, Boulder, Colorado wants to institute a McMansion tax. Homeowners who are willing to sign away the right to build larger homes will get a tax credit, and those who want to build bigger homes will have to purchase credits.

My questions are: 1) Is this an illegal restraint on the use of property, and 2) what will its ultimate benefit be?

There is little doubt in my mind that this McMansion tax will fail to withstand legal scrutiny. Since the main objections to McMansions are moral and aesthetic--as well as environmental and economic--I think it might be wiser (and more likely to withstand legal challenge) to tie a fee to ameliorate the impact the house will have on the community and the environment. For example, if there will be additional sewage draw, or roads, or fire protection needed, the inidividual homeowner will need to compensate the community.

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Happy 4th Of July! In honor of the founding of our nation's government, I would like to discuss the importance of government leadership in promoting green building. There are basically three ways in which the government can do it: 1) new laws; 2) new incentives and 3) investment of state/federal/local money in green building projects.

Passing new laws related to green building is the most obvious way that the government can promote green building. For example, earlier this spring Boston passed amendments to its zoning code to require all projects over 50,000 SF to be designed and planned to meet the "certified" level using the US Green Building Council's Leadership in Energy and Environmental Design building rating system. New laws have both benefits for green building and some drawbacks. The major benefit is that the laws make adoptinng green building practices mandatory. In turn, this will lead to an increase in the use of green building practices and products, which will make them more accepted, available and reduce the cost. On the other hand, new laws comes with new challenges. If the laws are not well thought out, they can lead to dramatically adverse consequences. For example, Nevada passed a new tax incentive (more on these below), but later had to repeal it because it was so poorly drafted that it threatened the state budget. (I will write more on the Nevada debacle in a subsequent post, but for more information see http://www.lasvegassun.com/sunbin/stories/nevada/2007/may/02/050210067.html). Further, new laws are open to new interpretation and challenges at the administrative level and in the courts. The uncertainty this creates adds transaction costs to the green building endeavor. Despite these drawbacks, however, I believe that new green building regulations are necessary to create a tipping point where all construction incorporates green building practices, at least to some degree.

Incentives are another means for governments to incentivize specific behavior. This has been very popular--many states have created tax incentives for green building, and the federal government offers a variety of energy efficiency and renewable energy incentives as well. (For a good listing of state and federal programs, see http://www.dsireusa.org/index.cfm). Tax incentives use market forces to make green building practices more financially desireable. I think that there is certainly a benefit to these incentives, but, in speaking to several developers, if the deal is a good one, the tax incentives are not likely to factor into the analysis that significantly.

Finally, I want to discuss my personal favorite, government spending. Facilities now owned by the Federal Government are valued at over $300 billion. The Federal Government also spends over $25 billion per year for acquisition, renovation, and upkeep. If you add the state and municipal investment in facilities, its an enormous amount of resources, which can substantially influence the proliferation of green building practices and products.

Together, these three tools make government action vital to promoting green building practices, and I believe that the government will only become more influential in green building as the need and demand for environmental stewardship grows.

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