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

By now, everyone has heard of "greenwashing"--a term used to describe the practice of companies disingenuously spinning their products and policies as environmentally friendly.  The new wave of anti-environmental action is more devious, and potentially more destructive.  I choose to term it "greenbashing." 

What is greenbashing? The use of seemingly reasonable arguments about catastrophic costs or unforeseen dangers to undermine progressive environmental programs.  There have been lots of examples of greenbashing lately.  Here are a few choice examples:

1.  Green roofs may spontaneously combust.  In challenging Toronto's recent mandatory green roof by-law, Don Marks, executive director of the Ontario Industrial Roofing Contractors Association, warns that

“I don’t believe that the insurance industry has caught up with the increased risk of fire that may result from improperly maintained green roofs...”

According to engineer Rob Diemer, partner with AKF Engineering, this threat does not comport with reality:

This is a new technology and the codes, insurance companies, underwriters and testing agencies are just now catching up. From what I have seen, we should see code language and testing protocols dealing with wind uplift and fire hazard for green roofing in the near future. In the mean time I think the fire hazards are minimal and depend a lot on the type of roof and plants used.

 

On an extensive roof using shallow, lightweight, mineral based growing medium and sedum plants, there is probably little or no fire hazard. Even if the plants should die due to a prolonged drought, the fuel load of the dead plants is minimal and it is likely that any fire would rapidly consume the plants and die out before damaging the building structure. Intensive roofs using deeper growing medium and larger plants may provide a larger potential fuel base; however, most of these roofs need to be irrigated which would tend to mitigate the fire hazard due to drought induced plant death. As with all things in life there are no guarantees; however, it would appear that the potential fire hazard of green roofs is more than outweighed by the many positive benefits they provide.

2. A national energy efficiency code will catastrophically increase housing prices.  The National Association of Home Builders issued a press release on June 29 regarding the national energy efficiency provisions of Waxman-Markey that Chris Cheatham and I discussed here in our Green Building Guide to Waxman-Markey.  According to the NAHB, requiring increased energy efficiency will have catastrophic effects on affordable housing:

The market is not geared up to supply the necessary materials and equipment, and that's going to drive up costs. The result will be fewer working-class families in these new energy-efficient homes. They'll be relegated to older, less efficient housing stock and face ever higher utility bills.

In addition, a national energy efficiency code would apparently impede regional sustainability considerations: 

Usurping states' rights to determine appropriate building efficiency for homes and buildings within their jurisdiction would result in ineffective application of efficiency standards to address varying climate zones and specific needs, he added.

The reality of the situation is, of course, that builders benefit from lack of regulation. Currently,  thirteen states have no statewide commercial building codes, and fourteen states have no statewide residential building code.  A national energy efficiency building code would impose regulations where none existed before, or more stringent regulations in jurisdictions with lagging codes.  The result might be higher costs of construction--but of course lower cost of ownership of homes in the long term.  

3.  A National Energy Efficiency building code will require huge new federal bureaucracy.  Our friends over at Sullivan Kreiss  reprinted a letter that the International Council of Shopping Centers sent to its members warning of the dangers of a national energy efficiency building code: 

The cost and complexity of this federal takeover of state and local building codes forced ICSC to oppose the overall bill. The specific efficiency targets are too aggressive and the deadlines are too short. In addition, there is no trained inspection force to oversee a national building code, so it will require the federal government to retrain state employees and, no doubt, hire a huge number of new inspectors. Supporters of this new federal program simply refused to negotiate or compromise on the language. As a result, ICSC does not support this provision.
 

Of course, the way that Section 201 is written, building codes will be drafted and implemented by code councils and the states/local governments in the same way they are now, unless those entities fail to develop codes that meet the Waxman-Markey efficiency standards.  Also, the ICSC letter fails to identify how retraining code official in energy efficiency and creating additional green jobs enforcing an energy efficiency code would be a bad thing.  

Greenbashing would be a rational approach to protect vested interests if there was vested interest to protect.  However, according to the Census Bureau, new housing starts in May were down over 45% from 2008 and shopping centers are being decimated as well.  Instead, these groups could embrace sustainable programs to create new demand for their products, and to help the climate crisis which will effect us all. 

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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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Today, the American National Standards Institute approved the National Association of Home Builders' green residential home standard. 

According to Ron Jones, the head of the committe which developed the standard.

The National Green Building Standard is now the first and only green building rating system approved by ANSI, making it the benchmark for green homes

The 2008 draft standard is available here

A comparison of LEED for Homes and NAHB Green is available here

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In my post about my experiences at Greenbuild, I blogged:

NAHB is going after LEED-H in a big way. A new, more robust NAHB green standard for residential should be out shortly which will give LEED-H a run for its money.

At Greenbuild I spent a long time talking to representatives of the National Association of Home Builders, NAHB, about their standard for green residential home building--NAHBGreen.  NAHBGreen competes directly with the USGBC's newly minted LEED product for residential buildings, LEED For Homes or LEED-H.

Both programs have a similar structure.  Both programs have a point based system which allocates points for site selection, resource conservation, energy efficiency, water efficiency, indoor environmental quality and homeowner education. 

As currently developed, residential buildings following LEED-H will probably be "greener."  LEED-H has a component for "Location and Linkages", which includes proximity to transit, infill development, adjacency to open space and access to community resources like shopping, etc. LEED-H has prerequisites which mandate minimum requirements for durability, material efficiency, erosion controls and other components. 

However, in talking with the NAHB representatives at Greenbuild, I found out that NAHB is doing several things to enhance the NAHBGreen product.  They are working with ANSI the standards body, to certify the NAHBGreen standard.  The ANSI-certified new NAHB standard is going to have stricter requirements for energy efficiency and other green components.  Finally, the registration and verification cost for becoming NAHBGreen certified will be much less than LEED-H.  In short, the new NAHBGreen is seeking to compete with LEED-H both on quality and on price. 

It remains to be seen what the new NAHBGreen will look like, but if it is equally robust and at a lower cost, it will likely give LEED-H a run for its money.
 

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