Hurricane Sandy Relief Bill "Blows In" Opportunity for States to Adopt Better Building Codes

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. 

 

PA Code Council Votes to Reject 2012 ICC Changes, Delay Code Updates until at least 2018

 It has been stated that building energy codes are the “quickest, cheapest and cleanest way to improve energy efficiency in the building sector.” 

Unfortunately, if the January 18, 2012 recommendations of the Uniform Construction Code Review and Advisory Council (the “Advisory Council”) go into effect, Pennsylvania will not adopt the 2012 updates to Pennsylvania’s building and energy codes. The Advisory Council voted to reject the 2012 model codes issued by the International Code Council (“ICC”) in their entirely, except for a few provisions regarding accessibility for the disabled. 

The Advisory Council also voted to recommend that the revision cycle for the Pennsylvania Construction Code be extended from three years, consistent with the international model code update schedule, to six years. If both the rejection of the 2012 codes and the extension of the code revision cycle go into effect, the 2009 codes will be in place until at least 2018, and Pennsylvania may miss out on the environmental and financial benefits of the 2012 code updates, and perhaps even the 2015 updates, as well.   

This means that much of Pennsylvania’s new construction for the foreseeable future will be less energy efficient than “state-of-the-art” construction, placing owners and tenants at a competitive disadvantage compared to forward-thinking neighboring jurisdictions like New York City, Washington DC, and Maryland. 

There is much more to this story.  The full article is available here

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:

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.    

Do Not Pass Go: Why The USGBC Is Probably Not An Illegal Monopoly

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.

What We're Reading

Today I am going to highlight a bunch of interesting articles that have come out lately which interest me. Some of these will become future posts, but I want to highlight them as they come out to keep my readers up to date, and give you something to read in your spare time.

1. The USGBC issued a short white paper on Greening the Codes and the compatibility of LEED with green codes.  It is very good, and makes the point that LEED and green codes work together to encourage green building. 

2. The United States Council Of Mayors passed resolutions to promote green building in cities, including encouraging the passing of a clean energy bill by Congress and the adoption of green construction codes.

3. The DOE announced $76 million in green building and energy efficiency technology grants.

So now I want to know...What are YOU reading? 

"I"-nterview With Maureen Guttman, Executive Director of the Pennsylvania Governor's Green Government Council

Yesterday, I discussed why I thought the ICC Green Building Code project was important enough to put off my knitting lessons for.  But you don't have to take my word for it. 

Maureen Guttman, AIA,  Executive Director of the Pennsylvania Governor’s Green Government Council and Member of the ICC Sustainable Building Technology Committee, agreed to talk to Green Building Law Blog about why she felt the ICC Green Building Code Project was significant to sustainability and the Commonwealth of Pennsylvania.   

Guttman is an active leader in the architecture profession, recently serving as the Pennsylvania representative to the American Institute of Architects Board of Directors. She is a recognized expert on building codes and green building policy, and has been instrumental in the development and passage of several pieces of related legislation in Pennsylvania. 

GBLB: Why are you involved in the ICC Green Building Code Project? 

MG: I have been involved in building code stuff for years. I view it as a major obligation of the professional responsibilities as a licensed architect. Building codes are a playbook for the designers of buildings, so compliance with the codes is one of the very fundamental principles that our license is predicated on.

I believe that all architects should be involved in aggressive code awareness. This was one of the things I pushed for on Board of AIA. I think that architects who are not involved in code development and awareness are missing out on what adds value to our profession.

GBLB:  What makes the Green Building Code Project so important? 

MG: This is an unbelievable opportunity to bring together the rules of the game with respect to health safety and welfare and layer on top the environmental health which we are charged with safeguarding. The idea of tying together the tenets of building health and safety and commitment to sustainability and tie it with regulatory procedure is a very exciting opportunity for me personally and for the Commonwealth of Pennsylvania. It is a good sign in terms of our commitment to codes that there are so many of us on the committee involved in developing the green building code—Pennsylvania is obviously a player.

GBLB:  What is the future of the Green Building Code? 

MG: It’s going to be very controversial. It is such a new way of thinking that there is going to be resistence. But hopefully it will provide some uniformity in what municipalities are enforcing as a ”green building". I hope it will also help the existing rating organizations promote ever more advanced sustainable initiatives—keeping the codes on its toes.

GBLB:  What is the future of the Green Building Code for Pennsylvania? 

MG: I’d like to think the green building i-code can be adopted in Pennsylvania as part of the process for adopting new codes. I envision a lively debate on it. I hope that Pennsylvania will be one of the first states to adopt it. It may be on a roll-in or an incentive basis. I hope that Pennsylvania will be at the forefront of pushing the adoption of this code. This will be a slam dunk measure to make some climate change goals achievable, as sole reliance on market incentives may not get us as far as fast.
 

I Think "I" Can--Why The World Needs Another Green Building Standard

In the interests of full disclosure, I am a member of the International Code Council's team crafting a Green Building Code. 

Accoding to the ICC:

The objective of this new project 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.

After LEED, Green Globes, BREEM, Energy Star, NAHB Green and the prospective ASHRAE 189, why on earth do we need another green building standard? Is it simply to give people like me something to do in their spare time (I had thought about taking up knitting)? The answer is definitely not. 

As articulated above, the point of the ICC Green Building Code is to be consistent with the other I-codes which most jurisdictions have adopted (or tweaked) as the basis of their building codes. Thus, builders building green buildings must adhere to two standards at least--the conventional I-Code based building code, and the green building standard.  This has caused many issues, including the waterless urinal fiasco, in which waterless urinals were prohibited under conventional code provisions.  By integrating a green building standard with the building code, these types of headaches can be minimized.

In addition,  code officials and policiticians are comfortable with adopting and utlizing I-Codes as the basis for building regulations.  Thus, municipalities do not have to reinvent the code wheel when looking to implement green building practices.

Finally, a solid compromise green building code can advance green building as the default standard.  In California, which has adopted a green building code, various interest groups, including the California Building Industry Association, have come on board with the code. 

There will always be a place for aspirational green building standards.  LEED, for example, should provide new and innovative and more challenging ways to reduce GHG emissions, materials usage, enhance energy efficiency, etc.  The goal of a code, however, should be to raise the floor of all buildings to a greener baseline.  ICC's Green Building Code effort is a step towards making that happen.  So, for me, knitting will have to wait.

For Green Benefits, Remodel(ing) Building Codes

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. 

ICC To Create Commercial Green Building Code

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.