The Green Building Law Cabal

I don’t know when I decided to become a “green building” lawyer. I saw the field was coming, almost four years ago. Green building on the rise, construction disputes emerge in almost any building project, why wouldn’t green building simply exacerbate an already fraught collaboration? My husband is an architect, so I knew about LEED accreditation, and it couldn’t possibly be as bad as the Bar Exam, so I took the test. Passed, no problem. Not nearly as hard as the Bar Exam.

I determined to give a talk at my local Whole Foods about green building. “You can’t do that,” my husband said, “You don’t know anything about green buildings.” He was right, of course, but why let that stop me?

On my “to do” list for 2007 was “start a blog.” Months went by, no blog. As I got more and more furious at myself for procrastination, one day I just started a Blogger blog. Creatively, I called it “Green Building Law Blog.” I put up a post or two and waited. I don’t know what I was expecting.
Then…hits. Lloyd Alter, at Treehugger, reposted one of my first blog posts, “Pink is the New Green” about insulation. BuildingGreen.TV liked a post I did on McMansion taxes, and soon we were off to the races.

In my early blogging days, I “met,” virtually of course, Steve Del Percio of Green Real Estate Law Journal. “Are you getting clients out of this?” I asked him. “No,” he reported. And yet, we kept doing it.

I was in on the first Twitter wave. By then Chris Cheatham of Green Building Law Update had joined us. At this point, a year or so in, I decided to move from a Blogger platform to a LexBlog custom blog.

 Chris, Steve and I competed for the green building law story of the day. Steve broke the Shaw Development v. Southern Builders case. Then I broke AHRI v. City of Albuquerque. Chris followed with Washington DC’s failed performance bond. I looked forward every day to seeing who had come up with something new, both appreciating and despairing when my doppelgangers broke something first.

Others joined us in the “cabal”—Douglas Reiser, Scott Wolfe, Chris Hill, Tim Hughes, Matt Devries. We would comment on each others’ stories, with good natured rivalry as we tried to outdo one another with our insights on this new field. We communicated with rival blog posts and twitter conversations.

I had not met many of these people, yet we were corresponding nearly every day, my modern day Pen Pals. During the course of our correspondence, both Steve and Chris Cheatham got married and I had two children.

From 2007 to 2010, the blog grew in prominence.  I appeared on MSNBC and the Philadelphia Inquirer did a full page spread. The field grew—suits were filed and different controversies emerged.

Honors connected directly to the blog’s prominence developed in 2009. I was appointed to the USGBC’s Legal Advisory Board. Awarded one of the top 40 lawyers under 40 in Pennsylvania. And, highest of the high honors, my “Blawg” made the ABA Journal’s list of the top 100 Law Blogs for 2009. It just so happened that I found this out on the same day that my second daughter was born. Now that was a good day.

I got a call one day last year—we are doing a conference on green building law, would you like to speak?  Why not?  By now my husband had decided I knew something about green building, so the only objection I got was leaving him at home for two days with the kids.

I soon learned that most of the Green Building Law cabal would be there, as well as Stuart Kaplow, who, behind the scenes, was doing more green building law practice than the rest of us combined and Susan Dorn, General Counsel for the USGBC. In short, the best minds in the business.

When we all got together, I discovered that these people I had been virtual colleagues with for years were even better in person. Warm, outgoing, smart and, above all, good humored. If I had a case which I needed help on or a referral to another jurisdiction, I know I could refer without hesitation on any of these people.

If you had told me when I began this endeavor that it would lead me to this place, I would never have believed you. But I am so grateful to these colleagues—no, friends---who push me every day to be more diligent, search longer and try harder to be at the top of my game. It is a pleasure and an honor to work beside you, and I cannot wait to see what we will do together.

Welcome LEED ND! We have some issues to discuss.

Yesterday, the USGBC launched LEED ND, the program for certifying neighborhoods as green in cooperation with the National Resources Defense Council (NRDC) and the Congress for the New Urbanism (CNU). I am a big fan of the concept of LEED ND, because (as I have discussed extensively on prior posts), a green building on an unsustainable site is not green.
According to CNU, LEED ND:

integrates the principles of new urbanism, green building, and smart growth into the first national standard for neighborhood design, expanding LEED's scope beyond individual buildings to a more holistic concern about the context of those buildings.

However, certifying neighborhoods automatically requires that the timeframe is much longer than that required for individual buildings, and may incorporate many different owners of different parcels and over the lifecycle of the project. According to the USGBC, LEED-ND projects will typically comprise of numerous buildings within a geographical area of up to 320 acres.
To address these issues, LEED ND has a different registration process. Projects are registered at three different stages of development:

Stage 1 – An application for Stage 1 may only be submitted for those projects that have achieved land use entitlement for no more than 50% of the square footage of all buildings within the project boundary, whether new or renovated, as measured on an aggregate basis.
Stage 2 – An application for Stage 2 may only be submitted for those projects that have achieved land use entitlement by public authorities with jurisdiction over the project for 100% of the square footage of all buildings within the project boundary, whether new or renovated. The project may be under construction or portions completed, but may not have more than 75% of its total building square footage constructed, whether new or renovated.
Stage 3 – An application for Stage 3 may only be submitted for those projects that are completed. A project is complete when: i) the appropriate regulatory authorities have issued certificates of occupancy (or other official designation that such facilities are fit and ready for use) for all buildings within the project and have accepted all infrastructure within the project; ii) every aspect of the project that pertains to a prerequisite has been completed; and iii) every aspect of the project that pertains to a credit that is being pursued has been completed.

At Stage 1 and Stage 2, GBCI will award an official designation to a project team rather than full certification. These official designations indicate that if a project is completed consistent with the information provided in the project application, then such completed project should satisfy all prerequisites and achieve a minimum number of points outlined in the LEED for Neighborhood Development rating system such that it should be eligible to receive LEED certification at a particular level, such as LEED Certified, LEED Silver, LEED Gold or LEED Platinum. At stage 1 a successful project team will be awarded “Conditional Approval of a LEED for Neighborhood Development Plan.” At stage 2 the project team is awarded a, “Pre-Certified LEED for Neighborhood Development Plan.”

This, of course, leads to a fundamental issue which vexes any land approvals process—what happens when the certification criteria change over time. With a standard land approval, like zoning, projects are generally subject to the laws that were in place when the project was submitted to the regulatory body. This is also how projects registered for LEED Certification have also been treated. Not so with LEED ND. According to the USGBC,

LEED-ND projects are not grandfathered to the rating system requirements in place at the time of initial registration…Under LEED-ND, projects can be registered a total of three times, once at the initiation of each stage. The rating system requirements are locked in for a particular stage at the point the project is registered for that stage rather than when it is registered at the initial stage.
So, you can begin a project under the requirements of LEED ND 2009, but be held to the standard of LEED ND 2018 when the project is ultimately completed.

I asked Susan Dorn, General Counsel for the USGBC about this “moving target” issue.

We are treating the registration for each stage independently. It is possible that people will not go beyond the first stage of registration, and likely in some instances. A lot of things happen with development on these long timelines. We also didn’t want the market to think that a project that was started 20 years ago was compliant with current LEED requirements. While the USGBC cannot commit, the issue of grandfathering will be something that we will keep in mind as the rating system develops. For 2012 the idea is that those persons that are working to develop LEED ND are aware of the issue, and there may be something akin to grandfathering.
Beyond whatever grandfathering may be built into subsequent versions of LEED ND, there is a section of the certification policy manual that addresses hardship. GBCI has some discretion with respect to credits which are impossible for a project to achieve. On the other hand USGBC doesn’t want to undermine the concept of LEED moving forward and mislead consumers. That is the tension.

I recommend that the USGBC develop a credit exemption process, by which LEED ND projects can demonstrate that complying with the as written requirement is impossible, and proposing an alternative. Since the timeframes are long and the projects are complex, some flexibility needs to be built into the system for it to be successful. No zoning code could exist without a mechanism for variance. This is what LEED ND needs going forward.