Inside Baseball No More--Why The Building Code Adoption Process Is Critical To Sustainability

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:


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.    

Are Green Building Codes The Only Answer?

There has been significant discussion over the past few months over the need for green building codes to achieve major green building goals.  The International Green Construction Code Version 2.0 was published in November 2010, and CalGreen, California's mandatory green construction code went into effect in January 2011.

A developer friend asked me what I thought of CalGreen, and it got me to thinking:

Could you achieve the same environmental results by implementing regulations that did not require an overhaul of the building code? 

Last week, San Francisco passed a regulation requiring owners of nonresidential buildings to
conduct Energy Efficiency Audits of their properties every five years, and file Annual Energy Benchmark Summaries for their buildings. The regulation is available here. San Francisco is following the lead of Washington DC and other municipalities mandating disclosure of energy performance.

Could mandatory energy, water use and indoor air quality disclosure, along with rigorous benchmarking be the foundation of an alternative green regulatory approach?  An interesting thing that San Francisco did is not only to make the disclosures mandatory, but also to file them with the city, allowing public access to the records. Thus, they can be used by anyone looking to purchase or value the buildings.  By mandating disclosure, it incentivizes building efficiency measures, and lets the market do most of the work to force the highest levels of efficiency. 

The next piece would be to provide major incentives for infill development, brownfield redevelopment and trandevelopment around mass transit--and charge a premium for infrastructure improvements outside developed areas

Another component would be to reduce parking requirements, and create parking maximums.  The reduced parking capacity would reduce building costs, incentivize public transit usage and make properies built in strong transit hubs more attractive.

Finally, mandate recycling of construction and demolition waste.   C & D waste is easy to track and waste management is already highly regulated. 

These efforts address most of the green building focus areas--water, waste, energy, site, and indoor air quality.  The question is whether this combination of market transparency, incentives and mandates would be as effective in reaching environmental goals as a drafting and implementing a new green building code.

GBLB Discusses Greening of Corporate America with Ari Kobb of Siemens

GBLB sat down with Ari Kobb, Director of Green Building Solutions and Co-Chair of Sustainability Committee for Siemens Building Technologies Division to discuss the Siemens/McGraw Hill Construction Study on the Greening Of Corporate America.  The study is available for download here.

GBLB: What did Siemens intend to accomplish with the study?

AK: We did the first study in 2006, published in 2007, and our main driver was to see the extent to which green and sustainability was being adopted and embraced by corporate America versus the public sector, because we viewed public sector as mandate driven. We thought the private sector drives the market. They make things more accessible when they embrace it. When the lightbulb goes off, they will develop more products, the service providers will be there, it drives market growth. When we did the 2006 study, the tipping point of sustainability and green buildings would be 2009-2010. We redid the study in 2009 because we thought the market had moved significantly, and we wanted to prove out some trend information. With the emergence of a corporate sustainability officer, we wanted to see what role this played. At the end of the day, we wanted to get away from the "if sustainability is significant" to the part where sustainability is driving the market.

Siemens did the study because we are a thought leader in the industry, we want to be associated with the green topic. At the same time, we embarked on our own internal sustainability movement. The data supports both our continued investment and growth in the green area and our own internal journey to becoming more sustainable. The timing was perfect. We started our own sustainability program in 2007, and at the same time, our customers both institutional and commercial were going green, the timing was right on that aspect.

GBLB: Who did you interview?

AK: We interviewed 203 executives from the C-suite of revenue over $250 million—CEO, COO, CFO, Chief Sustainability officer or someone in this position. This is a change from 2006, because there was no one in that position in 2006.

GBLB: What did you find?

AK: The main thing we found was that corporate America has moved attitudinaly toward embracing sustainability as part of corporate strategy. You are not going to be able to be a Stage 1 or Stage 2 company because of benefits the C-suite sees in sustainability. The alignment between efficiency and sustainability is being identified at the highest levels. We have seen an increase in Stage 4 and Stage 5 companies. Stage 4 and 5 combined increased from 18 to 37%, Stage 4 increased from 15 to 30—it doubled. Stage 3 has stayed the same.

This is an attitude study—we gave them a definition, and asked them to place their company. This measures the attitudes of the highest levels of the organization—it may reflect where they want to be. What we are seeing now 1/3 of the market seeing themselves as a Stage 4 and Stage 5.

Most companies have a dedicated sustainability role—61% have a dedicated sustainability staff.

When we looked at what was driving the sustainability efforts, we found that everyone (almost 80%) view a drop in costs as an outcome of sustainability efforts. A convergence of sustainability as an efficiency and cost-savings tool. Greater productivity was also perceived as an outcome of sustainability. Customer retention and attraction and employee retention and recruitment were also seen as benefits of sustainability. The concept is that there is a drive in the market to differentiate by providing more sustainable products, and also being driven to be more sustainable internally by their customer demands. An example is suppliers to major universities. They like green products. They are looking to the market to develop new green products, and they are also asking what their suppliers are doing to go green. In this economy, if this sliver is what will win you the job, you’ll do it. RFQs are beginning to ask how sustainable the suppliers are. 73% say perceived customer retention and attraction benefit.

There are a lot of people coming into the market who have grown up greener, who have a more ingrained understanding and expectation that where they go to work is in the green space, and is green as well. The two have to be connected.

This study was done in the depth of the recession. Over 60% said sustainability initiatives were continuing or growing. The pace may have slowed down, but it hasn’t gone backwards. It is one of the few bright spots we have seen. You can’t stop it. Even the Stage 1 companies will continue along the sustainability path.

GBLB: What is Siemens doing as a result of the study?

AK: We are distributing the information to show that the market has moved—the time to debate the value of embracing sustainability is over. Now, let’s all take it to the implementation level to satisfy what the market wants. The C-Suite are saying that the products, services, solutions are available in the marketplace. The time to say “is this going to take off” is over. The alignment with corporate strategy, profit motive, efficiency tied to conservation is there at the highest level of corporate America. The real question is whether enough is going on. Would you have expected to see more products, more services, etc.? Over 50% studied were providing sustainable products and services to marketplace, over 50% are also seeking sustainability initiatives from suppliers.


Greening the Standard of Care

This post was co-authored by Shari Shapiro and Christopher Hill

Contractors and design professionals have long been held to a standard of care to provide services in a “workman like” or “professional” manner. The general test, subject to some detail below and absent contractual language to the contrary, is “Will the building built by the contractor and contracted for by the owner stand up and work to the purpose intended?’ In short, will the building fall down and do the lights turn on? If the answer is “Yes” and the building meets minimal guidelines, a contractor meets this standard.

What are the components of this standard? A contractor or design professional is required to have an understanding of the historical standards of workmanship in its segment of the industry—in other words, to design or build as a reasonable professional in his/her area of expertise would do. These include knowledge of building codes, some expertise in its field, and the methods by which work is performed.

Most insurance contracts and standard building contracts assume this type of standard of care. A project owner can assume, for legal purposes, that the contractor it hires (and any other workmen on the project) meets this standard. While this can be of comfort to owners and contractors, unfortunately, without a contractual provision setting the standard of care, the state court system gets to decide what the standard is and whether that standard is met. In other words, everyone at the site may believe that they know the standard and what is necessary, but a court or insurance company could look at it differently.

Determination of all of these factors is difficult enough when the parties to the building contract are the only ones setting the standard of care. Enter LEED and green building where a standard is set by a third party, incorporated into some municipal and state building codes and interpreted by yet another third party. The question which is on the lips of lawyers, insurers and design professionals is whether and how green changes the standard of care.

Many insurers say that while they are keeping a close eye on whether green projects present risks above and beyond the traditional claims made by construction projects, they have not yet recognized green buildings as a unique category of risk. This is good, because it means that a design professional’s liability insurance probably covers their green building endeavors.

However, the answer is not as clear for professionals who hold themselves out as a LEED Accredited Professional, or who provide additional green services, like commissioning and energy modeling. There is a credible argument to be made that a LEED AP should be compared with what a reasonable LEED AP would have done with respect to building a green building, not just what a reasonable architect or other design professional would have done under the circumstances. Further, it is not clear that a professional liability policy which covers specific design or contracting services covers negligence in providing additional green services like commissioning and energy modeling.

So what is the beleaguered design professional to do? First, don’t overpromise. Ensure that you are able to provide the services you are asked to do in a reasonable and workmanlike manner. Second, communicate with your insurance provider. Ensure that your green services are included in the list of covered services for liability. Finally, to the extent that you employ subcontractors to provide green services, ensure that they are properly qualified and obtain adequate liability coverage, as well.