Part 5 of the Regulating Green Series--Constitutional Challenges To Legislating Green

Throughout the Regulating Green series, I have tried to identify strategies which will lead to great green regulations.  I gave a presentation to municipalities in Southeastern PA who are considering green regulations.  In preparing for the presentation, I identified a few additional considerations for green regulations.  Here are some of the thoughts I shared: 

1. Avoid improper delegation of authority

Delegation of a power normally exercised by government authorities to a private agency is considered an improper delegation of authority.  Requiring green certification by a third party entity (like the USGBC) in order to get a Certificate of Occupancy would be subject to this challenge.  This challenge probably would not apply for incentive based programs or for municipalities' own buildings.

2. Develop a sound rational relationship between the regulatory means and the ends

In enacting land use regulations, the means a municipality uses to regulate must bear a a real and substantial relation to the ends sought.  Thus, green regulations should include a clear intent, be supported by external authority, and implement  rational regulatory mechanisms that tie to the original intent of the regulation.

3.  Ensure that your regulations are not void for vagueness

Regulations violate due process if a regulation fails to give a person of ordinary intelligence fair notice that contemplated conduct is forbidden or encourages arbitrary enforcement, or both.  Green regulations which include language like "LEED or equivalent standard" might not withstand a vagueness challenge.

4. Be careful of imposing arbitrary and excessive fees

If the cost of compliance with the regulation is too high, it may amount to a virtual taking of the property of the persons being regulated. This standard is high--the value of the property must be reduced to almost nothing for a taking to occur.  But, regulatory license fees must be reasonably related to the costs associated with the services being provided.  If a municipality imposes a fee for standard projects (i.e. projects which are not green), there could be a challenge that the license fees are not related to the services being provided.