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

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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AHRI vs. City of Albuquerque, a case that I first posted on in 2008, finally reached its conclusion last week.  In line with the preliminary injunction she ordered on October 3, 2008, Judge Martha Vazquez of the District of New Mexico decided that Albuquerque's energy code was preempted by Federal law mandating the energy efficiency of HVAC equipment. 

Appliance Magazine reported:

In the latest opinion, Judge Vazquez confirmed her Sept. 10, 2010, rulings:
(1) The prescriptive energy efficiency standards in the 2007 Albuquerque code that are more stringent than federal minimum efficiency standards are preempted and cannot be saved from federal preemption by the availability of alternative code compliance paths.
(2) A particular performance-based code compliance option is preempted because it is based on a standard reference design that uses efficiency levels that exceed federal efficiency standards. Responding to a summary judgment motion filed by the city that essentially asked Judge Vazquez to reconsider her earlier rulings, she declined to do so and denied the city’s motion.

A similar suit was filed by the Building Industry Association in 2010 to enjoin (or, in regular english, stop) the Washington State Energy Code from taking effect. 

The foundation of both AHRI and BIA is in essence one of preemption--that the federal government has enacted laws that prevent lesser governmental authorities from passing laws on the same subject, here the Federal regulations governing the efficiency of HVAC equipment preempted state and local energy efficiency laws.

Interestingly, in the Washington case, the court found that the Washington State energy code was not preempted.   This creates a split between the District of New Mexico and the Western District of Washington.  In my next post, I will give more detail on the difference between the two cases.  It will make it more difficult for local governments to know the extent to which they can regulate HVAC energy efficiency, which may make local governments shy away from doing so.

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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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Happy New Year and welcome to GBLB 2011.  When the clocked struck 12:01 on New Year's, two important green regulations went into effect that may have a long term influence on green building and renewable energy.  If successful, either of these regulations would do more to change the green industry than any legal challenge to LEED's legitimacy (see the continued coverage of the Gifford v. USGBC case here and here): 

1. CALGREEN

As I have said before, green building practices are becoming code, and California has (as usual) taken the lead.  California is the only state to have a state-wide green building code, CALGREEN, which went into effect on January 1, 2011.  If California successfully implements this mandatory green building code without siginificant impact on building rates or building costs, look to other states and municipalities to follow.  Implementing green via building code is being made significantly easier throught the creation of the International Green Construction Code (IGCC) which integrates with the ICC construction codes already in place in most jurisdictions. 

An interesting question that has been bandied about is what a green construction code will do to LEED.  California will be an interesting laboratory.  Will developers still seek LEED certification for their buildings when all new construction must be green?  How sensitive is the customer base to "green" vs. "more green?"

      2.     EPA Regulation Of GHG Under the Clean Air Act

EPA limits on greenhouse gases for power plants which also went into effect January 1 (a quick fact sheet from the EPA is available here).   When cap-and-trade or cap-and-tax died in Congress last year, the EPA continued its plan to regulate GHG via the Clean Air Act. There is significant controversy over these limitations, and legal challenges have been filed.  On Wednesday, December 29, 2010, the Fifth Circuit Court refused to stay the regulations, and on Thursday December 30, 2010, Texas filed a petition to the Court of Appeals in the Federal Circuit to stay the regulations.  If the EPA regulations on power plants remain in place, more GHG regulation of other categories will follow, creating the same massive shift in the priority of green tactics to manage GHG emissions that cap-and-trade would have had.

The reason I started this post by saying that these regulatory efforts may (not will) shift the green building and renewable energy industries is because of the massive efforts being undertaken to derail the regulatory efforts. 

According to the Center for American Progress: 

The 20 biggest-spending oil, mining, and electric utility companies shelled out $242 million on lobbying from January 2009 to June 2010. Trade associations that generally oppose clean energy policies spent another $290 million during this time. This is over $1,800 in lobby expenditures a day for every single senator and representative.

Opponents of GHG regulations were successful in killing cap-and-trade legislation in Congress.  In California, a referendum seeking to overturn California's cap-and-trade regulations was on the ballot in the November election, although it was defeated handily.

In the tug of war over between proponents and opponents of environmental regulations, watch these two hotspots in 2011. 

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NOTE: The opinions expressed in this post are entirely those of the author, and do not represent the position of the USGBC or the Delaware Valley Green Building Council.

As almost anyone in the green community knows, last week LEED Critic Henry Gifford sued the USGBC for, essentially, a few different flavors of fraud.  Mr. Gifford sued the USGBC as an alleged representative of a class of people who had been duped by the USGBC.  I posted last week that I did not think that the class action would survive class certification.  In that post, I provided a 30-second manager version of Advanced Civil Procedure.  Today, it is Anti-Trust 101.

 The causes of action Mr. Gifford brought against the USGBC are the following:

1. Monopolization through Fraud--Sherman Anti-Trust Act 15 USC Sec. 2
2. Unfair Competition--Lanham Act 15 U.S.C. Sec. 1125(a)(1)(B)
3. Deceptive Trade Practices--New York General Business Law Sec. 349 (a) and (h)
4. False Advertising--New York State General Business Law Sec. 350-a(1) and Sec. 350-a(3)
5. Wire Fraud--RICO--18 USC Sec. 1962(C)
6. Unjust Enrichment

[To avoid confusion, I will note here that the Complaint has two Fourth Causes Of Action.]

I will address the various causes of action in different posts this week, starting with Monopolization.

The Sherman Act  is intended to prevent the combination of entities that could potentially harm competition, such as monopolies or cartels.

Section 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 2, makes it an offense for any person to “monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States . . . .”

To prove monoplization, the plaintiff must show  “(1) the possession of monopoly power in the
relevant market and (2) the willful acquisition or maintenance of that power as distinguished
from growth or development as a consequence of a superior product, business acumen, or
historic accident.” United States v. Grinnell Corp., 384 U.S. 563, 570-71 (1966).

First, it is not entirely clear what market  the plaintiffs are alleging USGBC has a monopoly.  

A monopoly is a form of market structure where only one or very few companies dominate the total sales of a particular product or service. Monopoly power is defined as the ability to control price or to exclude competitors from the marketplace. The courts look to several criteria in determining market power but primarily focus on market share (the company's fractional share of the total relevant product and geographic market). A market share greater than 75 percent indicates monopoly power, a share less than 50 percent does not, and shares between 50 and 75 percent are inconclusive in and of themselves. In focusing on market shares, courts will include not only products that are exactly the same but also those that may be substituted for the company's product based on price, quality, and adaptability for other purposes. For example, an oat-based, round-shaped breakfast cereal may be considered a substitutable product for a rice-based, square-shaped breakfast cereal, or possibly even a granola breakfast bar.

Green Globes, Energy Star, Passive Haus, BREEM, and others exist in the realm of green building evaluation, but LEED certainly has the dominant market share.  But is this really the market? If building evaluation in general is the market, than surely the International Construction Code, which is the model code for most states and municipalities, has a broader market share and usage than LEED.  If energy performance is the market, then the ASHRAE codes which provide standards for energy performance and are used almost universally have a far more dominant market share.

 If professional certification of builders and design professionals is the market, than certifying to become a Registered Architect or a Professional Engineer must also compete with becoming a LEED accredited professional. 

Second, even assuming that LEED has a "monopoly" on some undefined market, Mr. Gifford must prove specific intent to acquire or maintain the monopoly position.  Mr. Gifford alleges a significant number of bad acts on the part of the USGBC, mostly centering around the USGBC's alleged misrepresentation of the energy performance of LEED buildings.  In the recitation of the claim, Mr. Gifford states that misrepresentation of energy performance of LEED buildings "is false and intended to mislead the consumer and monopolize the market for energy-efficient building design." 

The problem is, Mr. Gifford does not demonstrate how this false representation is conspiratorial or predatory.  The USGBC's actions, even if fraudulent, are not  intentionally prohibiting other rating systems from coming into existence or preventing other systems from proving they result in more energy efficient buildings. 

 So, Mr. Gifford's Anti-Trust Claim should go directly to jail--what a court may actually do is another matter entirely.

NOTE: The opinions expressed in this post are entirely those of the author, and do not represent the position of the USGBC or the Delaware Valley Green Building Council.

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A few weeks ago, the EPA released its Sustainable Design and Green Building Toolkit for Local Governments. The Toolkit:

is designed to assist local governments in identifying and removing permitting barriers to sustainable design and green building practices. It provides a resource for communities interested in conducting their own internal evaluation of how local codes/ordinances either facilitate or impede a sustainable built environment, including the design, construction, renovation, and operation and maintenance of a building and its immediate site.
 

The toolkit can be downloaded here.

The Toolkit was developed by EPA Region 4, and we are very excited to have Karen Bandhauer, an Environmental Scientist at EPA Region 4 for an interview about the Toolkit.
 

GBLB:  Why did you develop the Toolkit?

KB: The Toolkit was the result of a relationship between the EPA and Roswell, GA. The city approached EPA wanting to develop green, protect natural resources and provide resources for its residents. The Roswell representatives told us that there had been some innovative projects that came into their permitting pipeline, and had run into permitting problems because of green features. They realized they were creating barriers to projects that they wanted to have in their community. The asked us whether we could help them create some resources to help communities identify the barriers in their codes to developing green. Some funding became available through the internal EPA innovation work group, about $50,000 in seed money for innovative projects. This project was put forward as an innovation project in 2008 by Region 4. That got it started. The project ended up being a partnership with Smart Growth and Green Building at [EPA]  headquarters.

GBLB: What does the Toolkit contain?

KB:  The Toolkit has three parts:  an assessment guide that allows users to tak a look at their codes and ordinances under the categories of the LEED process [sustainable sites , water efficiency, energy and atmosphere, indoor air quality, materials & resources]. The assessment tool identifies objective and rationale for each category, and then questions for communities to identify gaps in the current regulatory system, then a list of potential tools and techniques [for addressing those gaps].

There is also an assessment tool—green, yellow and red—to determine how well the community is promoting each practice. Green is where the tactic is either mandatory or incentivized, yellow is where the practice is typically allowed, and red is where the practice is hampered or prohibited [by the current regulations].

There is aslo a resource guide attached to each section which has tools, information and case studies. The resource guide has a compendium of policy tools, best practices and other materials. In some cases it might be an example of a community that has put in a model ordinance, it might be an example of a best management practice guide or a green roof technical specifications. It allows the user to get a good sensse of the existing information in the field without having to spend a lot of time searching around for it.

The last section is a guide for developing an action plan. We had not originally envisioned this section for the project, but the City of Roswell gave us feedback that they wanted advice on next steps. This is a step by step guide for changing the regulatory environment. It helps communities identify things they need to look for and address if they want to implement the changes to their regulations.

GBLB: What are some of the barriers that play out in communities?

KB: A lot are the ones you hear about, and some are community specific. One of the things that we heard about was barriers in the code to installing waterless urinals, reuse of greywater. Others were “unintended consequences”—some communities prohibit groundwater wells which prohibit geothermal. Or specific ordinances which require tree planting, but if there is a drought, there might be issues better addressed by native planting. Or street widths, which [were put in place for fire safety] but might matter in terms of building sustainable communities.

Other barriers are institutional or process oriented—specific to historical legacies like union involvement. We wanted to walk [communities] through from their environmental objective to how they could implement codes and ordinances to achieve those objectives. We tried to flip it—here’s the outcome you are trying to achieve, here are things that you can do through your permitting process to try and achieve them.

In no way is EPA trying to tell localities how to do their permitting process, but to give them resources to help them look at their codes and ordinances, and save some time and money in the process.

GBLB: Who is the intended audience?

KB:  Local government officials, and it could also be useful for developers and other private entities who are looking to develop green projects. We hope it will provide a resource for communities to bring their codes and ordinances in line with sustainable policy efforts.

GBLB: What is the status of the Roswell project?

We have completed the pilot project, and they have provided excellent feedback.
In addition, we held a Lean Kaizan event in Roswell [to identify potential efficiencies] in their land disturbance permitting process. If they wanted to incentivize a specific thing, communities can identify process improvements, allowing them to provide incentives without taxing additional resources. Roswell is continuing to work on that. We are going to work with them over time to promote the project as well as improve it.

GBLB: Have they made any changes to their code yet?

KB: Not yet. Now that the Toolkit is done and the Lean project is done, we will see where they want to take it.

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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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The great people over at Treehugger had some great additional thoughts on Friday's Waxman-Markey post.

Particularly interesting was Lloyd Alter's insight from his dealing with uniform building codes:

When I practiced architecture, I had to work with a building code that covered a territory that ranged from temperate at the south to arctic at the north, and quite capably handled it with maps and tables that adjusted requirements for degree-days, snow loads and other climactic differences, it's not that difficult.
 

Appendix writers, sharpen your pencils.  Alternatively, the building code could be a performance based code, which sets the standard and allows states and local governments to meet it in different ways. 

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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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