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

Guest Post by Stuart Kaplow.  Stuart Kaplow is an attorney, based in Baltimore, with a real estate practice concentrating in green building and sustainable business. His law firm website is www.stuartkaplow.com

Building green is the law in Baltimore City. And while the mandatory requirement for all to build green has been in effect since July 1, 2009, the City has just announced the regulations (that were, arguably, to have been effective July 1, 2009) were promulgated last week, effective September 16, 2010.

Make no mistake, Baltimore City is not green washing. To the contrary, it was an early adopter when it enacted a green building law in 2007 that, today, remains among the most sweeping of that in any major American city.

Baltimore City Building Code, Chapter 37 mandates that all newly constructed, extensively modified non-residential, and specific multi-family residential buildings, that have or will have at least 10,000 square feet of gross floor area, “for which a building permit application is filed on or after July 1, 2009 must achieve a silver-level rating in the appropriate LEED rating system, as certified by the Green Building Council”. (Mandating that privately owned buildings be constructed to a LEED standard is no less controversial than religion or politics.)

”Extensively modified” is a modification that alters more than 50% of the building’s gross floor area (such that many major renovations will have to be LEED silver certified is a big deal).

The City Code further requires that “the Building Official must issue regulations to administer .. [this law and that] those regulations must specify: 1. The LEED rating system, and any equivalent energy and environmental design standard, that applies to each type of covered building.”

As the key component of those regulations, the City has developed its own “equivalent” green building standard, based largely upon the LEED 2009 rating standards, layered with fast, flexible new approaches to sustainability taking advantage of the powerful opportunities and challenges of building in an older urban area. A City checklist of 150 credits (versus 110 credits on a LEED checklist) has been released for new construction.

The game changing regulations create the “Baltimore City Green Building Standards” enabling an applicant to satisfy the law with either at a minimum LEED silver certification or obtain a “2 Star” (on a 5 star scale) City approval under those City Green Building Standards.

Building permit applications are, today, being accepted utilizing the Baltimore City Green Building Standards even in advance of the regulations being final.

There are opportunities to prosper and thrive in the greening of Baltimore. All are welcome.
 

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Several stories recently have highlighted the other side of the regulatory coin--regulations are onlyeffective if they are enforced. 

On Monday, the Department of Energy issued 27 penalty notices to companies for failure to meet energy efficiency and water conservation standards.

According to Green Wombat:

For the first time in 35 years, the United States Department of Energy is moving to enforce decades-old energy efficiency and water conservation standards for products like refrigerators, light bulbs and shower heads.

Baltidome challenged Baltimore's enforcement of the city's green building code with respect to a new development being considered for the city center. 

Whether these enforcement actions are legitimate (Baltimore lawyer Stuart Kaplow did a little digging and reported to me that the senior policy making public official reviewing the project  assured him that the project, as designed, complies with the law), it is worth discussing what impact enforcement of energy efficiency codes, building codes, tree planting regulations and open space requirements THAT ARE ALREADY ON THE BOOKS could have on greening the United States. 

Part of the problem is that putting laws on the books is cheap, and enforcement is expensive.  It requires expertise, personnel, lawyers, inspectors and so forth to make it work.  In this era of contrained resources, it is nice to see that the DOE is enforcing some of its regulations.  Let us hope that other regulatory bodies follow suit, like the Federal Trade Commission, which is in charge of false green advertising claims, but has only filed a handful of enforcement actions over the years.   

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In 2009, Baltimore passed an amedment to its building code requiring public and private buildings above 10,000 gross square feet to "be equivalent to a LEED “Silver” level."  Obviously, the goal was to get buildings in Baltimore to be more environmentally friendly. Fast forward a year, and a controversy is brewing over whether a proposed Big Box project, including a Lowe's and a WalMart is actually green.  There is some rumbling that the project was not green because it was not being certified by the USGBC, and may not be properly managing its wastewater.  According to Baltidome:
 

During community testimony at the hearing, the Planning Commission was presented with concern that the developers were not applying for LEED “Silver” certification for the project and that the proposed development appears to be failing in its method for waste water management of the site. Despite the developer’s assertions, the project may, in fact, be ineligible for LEED “Silver” standards set by the city.

Without deeply analyzing the nicities of wastewater management, the resistance to the 25th street station project appears to be mainly one of local vs. chain.  But I am wrestling with the more baasic regulatory concept of incentivizing inner city development because it is green, even if it does not embrace green building practices.

Work with me here.  Cities are inherently green.  One of my favorite New Yorker articles of all time was David Owen's 2004  piece on why New York City is sustainable.  The argument for 25th Street Station's green cred goes like this "If the 25th Street Walmart project comes to fruition, your average Baltimorean will have greater access to retail within walking or short driving distance.  No need to go to the suburbs to shop, wasting fossil fuel and requiring expensive additional infrastructure.  In addition, it provides an amenity which makes inner city living more attractive."  Weighed against that, of course, is the long distance shipping of goods to WalMart, and potentially the non-green siting and construction practices. But the non-green practices and the long distance shipping would exist wherever WalMart built, in downtown Baltimore or in an exurban location. 

Baltidome is rightly concerned that Baltimore's green building regulations are not being enforced, and there is currently considerable stress on municipal budgets which are leading to green building programs being scaled back.  Are we better off, in an era of severly constrained municipal finances, focusing on incentivizing urban development and renewal than specifying (and enforcing) green building practices?  

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