Green Building Law

GREEN BUILDING LAW IS MOVING TODAY!

2008-12-02T14:07:00.005-05:00

As of TODAY! Green Building Law is moving to its new, fabulous site:

www.greenbuildinglawblog.com

All the old content has been migrated over, including your fabulous comments.

No new posts here--reset your google readers and see you at the new site!

Who's Afraid Of The Big Bad Lawyers?

2008-12-01T15:19:00.001-05:00

As I mentioned briefly in my Greenbuild post at Green Building Law, legal issues, especially risk and liability associated with building green, were little discussed at Greenbuild.

A bunch of green building lawyers were sitting around and speculating why this might be. The conclusion we came to was that the U.S. Green Building Council did not want to highlight concerns or risks associated with building green at its feel-good festival. This is a mistake.

Lawyers, in their best role, are advisers that help clients avoid potential pitfalls. Someone once said that if you are involved in litigation, you have already lost. Litigation is expensive, time consuming and essentially a zero-sum game. Much litigation could be avoided if clients came to their lawyers and discussed potential legal liability ahead of time and took proactive steps to limit their exposure.

Read the rest of this post at Greenerbuildings.com

Pink Is The New Green

2008-11-28T10:07:00.003-05:00

In my summary of my experiences at Greenbuild, I blogged:

The economy tanking may be the push needed to implement basic green changes like energy efficiency and conservation. The next big green thing is likely to be blown insulation, not photovoltaics.

Let's define our terms first. Futurelab has a nice succinct definition of both:

Energy efficiency means that users of powered devices can get the same enjoyment or use out of a more efficient device that uses less energy. Energy conservation is a planful pattern of human action by which energy use is avoided.

In order to effectively reduce our energy consumption, we need to do both.

To date, much of the action in green building legislation has encouraged higher complexity energy efficiency technologies, like tax incentives for photovoltaics. There is nothing wrong with incentivizing solar, but it is not the most efficient use of the first dollar invested in green building.

Instead, green building legislation should include incentives which encourage energy efficiency and conservation measures first, and longer term/higher cost measures later. One regulatory mechanism for acheiving this is to require each project seeking government funding to have an energy audit. The audit would identify a suite of energy efficiency and conservation measures to be implemented, and the cost and savings associated with each. The legislature could then tier its incentives to compensate the highest energy v. cost savings as determined by the audit.

In addition, the federal government could enhance national building standards for energy efficiency. States and local government could incentivize simple energy efficiency and conservation measures--like the afforementioend energy audits, enhanced insulation, cool roofs, efficient HVAC systems, and new windows and doors
[The DOE has a list of short and long term energy efficiency measures]

With fewer dollars, both public and private, available due to the economic crisis, we need to maximize the cost/benefit calculus by identifying the most efficient energy saving techniques. In other words, we need to make pink (insulation) the new green.

UPDATE: Christian Science Monitor had a nice little article on this subject. They did not, however, have many creative ideas about legislating for energy efficiency.

ASHRAE 189 Update

2008-11-26T21:31:00.002-05:00

Green Building Insider has an article that USGBC is reconstituting the ASHRAE 189 standard committee, but is committed to going forward with the code version of LEED which local governments can incorporate into their regulations.

Green Building Law--Quoted!

2008-11-26T21:11:00.002-05:00

I was quoted in an article at buildinggreen.com on the AHRI v. Albuquerque suit.

Happy Thanksgiving everyone!

Listening To Greenbuild

2008-11-21T21:26:00.005-05:00

Things have been a bit quiet here at GBL because I went to Greenbuild this week. Greenbuild is a conference of 30,000+ green building professionals.

I decided not to blog or tweet the conference, but rather to try to really listen to what my green industry fellow travellers were saying. So here is what I heard, in reverse order of importance:

10. Green is becoming mainstream. There were lots of green products providers, but the exhibit hall was primarily filled with the usual suspects in the building industry--Turner, Kohler, skanska, etc.

9. Data is becoming available. A lot of the exhibitors brought nice compilations of data on green building stock. The General Services Agency was giving away flash drives with new data on its large stock of LEED building, for example. The quntification of performance on green buildings should benefit the business case.

8. Fireman's Fund is leading the pack of insurers with green products for building green or insuring green replacement in the event of loss. They are also considering creating a risk product for designers of green buildings.

7. 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.

6. Green building policy was well covered, but carbon policy got short shrift. The one session dealing with carbon policy at the state and federal level was cancelled, with no explanation.

5. Enacting green building policies in major municipalities requires LEED APs in relevant municipal agencies to act as agents of change.

4. There was remarkably little concern over the economy's effect on getting buildings built, which seemed strange at a conference for the building industry.

3. The economy tanking may be the push needed to implement basic green changes like energy efficiency and conservation. The next big green thing is likely to be blown insulation, not photovoltaics. [Green Decoder has a nice article on green winterization for a head start]

2. Legal issues, especially risk and liability associated with building green, were little discussed. Where legal issues were highlighted, like a seminar on green leasing, the practioners did not appear to have deep understanding of the green legal issues [Caveat--there was a paid additional seminar on green leasing today that I could not attend--did anyone go and want to comment?].

1. There are no bars open after 2 am in Boston.

I will post more on each of these issues over the coming weeks, and I would welcome other greenbuild attendees to submit their thoughts on greenbuild.

New Green Building Litigation In The Offing--Shade Trees v. Solar Panels

2008-11-16T13:05:00.003-05:00

The LA Times had a story about a neighborly spat over shade trees v. solar panels. Apparently, the Shade Control Act in California prevents shade trees from blocking more than 10% of sunlight from a solar array:

It protects homeowners' investments in solar panels, which can cost tens of thousands of dollars. Property owners whose trees block the sun from more than 10% of their neighbors' panels can be fined as much as $1,000 a day if they refuse to trim them.

Although GBL has not heard of this particular strain of litigation before, NIMBY issues are not new to solar installations. See here for a story on local zonign laws which originally prevented Al Gore from installing solar panels on his Tennessee home.

Strengthening States' Authority To Enact Tougher Green Building Standards

2008-11-12T10:02:00.003-05:00

Treehugger has an article identifying 7 executive orders which Obama should sign to protect the environment.

The one which interested me calls for protecting stronger state laws from weaker federal ones

The next President should [...] should amend the existing Executive Order on Federalism to strengthen provisions setting forth a presumption against preemption; require agencies to provide a written justification for preemption; and require that, when a federal statute allows states to adopt more stringent standards or seek a waiver of statutory preemption (as in EPA's denial of California's Clean Air Act waiver), agencies must provide a written justification to the White House before denying the state's regulatory authority or waiver request. As is the case with the existing Executive Order on Federalism, these recommendations are consistent with the goals of the various statutes under which the environmental, safety, and public health agencies operate, including the National Environmental Policy Act.

The preemption issue has proven to be extremely significant in green building regulatory challenges. In AHRI v. City of Albuquerque, we saw an effective challenge to Albuquerque's green building code based on weaker federal energy standards for HVAC equipment. See my post here for more on the AHRI v. City of Albuquerque case.

However, an executive order will not go very far to prevent federalism challenges to green building regulation. For example, it would not have effected the challenge to Albuquerque's green building code because 1) the City of Albuquerque never applied for a waiver, so the executive order would not have applied in that case, and 2) Congress specifically preempted state regulation of energy efficiency of HVAC equipment.

See related posts on green building law and federalism here

A fun link for you greenlaw buffs!

2008-11-11T20:04:00.001-05:00

Vote for the next head of EPA at Grist

China v. US--Top Down v. Bottom Up Green Building Standards

2008-11-11T09:38:00.003-05:00

Via @allroads on Twitter, I found an interesting presentation on the difference between green building standards in China and the United States. As I discussed here China takes a top down approach to mandating environmental change. In the United States, it is a more bottom up, market based approach. We will see how/if this changes with a more environmentally interested president in the White House. Do you think top-down or bottom-up is more effective?

Green Laws Make US Competitive In The World Renewables Market

2008-11-07T16:29:00.003-05:00

Redgreenandblue.org had an article here that "BP has dumped its plans to build out wind farms and other renewable projects in Britain for projects in the United States" because of the tax incentives for renewables in the United States and Barack Obama's promise to spend $150 billion over 10 years to kick start a renewable energy revolution.

In other words, because of green laws and incentives, the United States is competitive for renewable energy on the world market. What does that mean? More clean energy here, and more green jobs.

Give yourself (and the earth) $4000

2008-11-06T14:10:00.002-05:00

Daily Green had a nice post on how to save $4000 annually and go green available here

The Morning After--What Obama Will Mean For Green Building And The Environment

2008-11-05T10:46:00.005-05:00

I wrote a column yesterday on Greenerbuildings.com about the need for our next leader to take us from a red America and blue America to a green America.

Now we know that Obama will be the leader to take on that challenge. I was pleased that he spoke of our planet in peril in last night's acceptance speech, and of the opportunity for green jobs to help heal our damaged economy.

Environment and Energy Daily is reporting here that Obama will begin almost immediately working on these issues by going on a listening tour to explore "energy and environmental issues before Inauguration Day in an attempt to build momentum for its policies and legislative plans," allowing California to enhance its automobile standards, setting the stage for cap and trade and investing $15 billion per year to promote the deployment of renewable technologies.

My fellow greenerbuildings.com blogger Leanne Tobias details the Obama plan here

The future looks distinctly brighter, and greener, this morning.

Green Building Law Featured on EcoBuild

2008-11-03T14:15:00.004-05:00

The nice folks over at Ecobuild featured Green Building Law today. http://www.ecobuildmedia.com/

They are hosting the EcoBuild Fall Convention in Washington, DC, the most comprehensive event and exhibition with a focus on the ecological aspects of cutting edge IT at the Washington, DC Convention Center, December 8-11, 2008.

Moreover, they run a great blog with lots of green products and resources.

Leveraging The Power Of Wholesale Change Through Governance

2008-10-31T10:43:00.004-04:00

I spent yesterday afternoon at a board retreat for the Delaware Valley Green Building Council. Much of the discussion focused on the appropriate level of education/outreach to disseminate green building knowledge and transform our built environment. Should policy influencing bodies focus on wholesale change by targeting education/outreach to thought leaders, or retail change by targeting individuals or households?

One of the elements which has gotten lost in the discussion of small versus big government and government lobbying is government's role in transforming wholesale change into retail change. Policy influencing bodies like the DVGBC, USGBC, etc. can use their limited resources on education and outreach to policy makers, who in turn make laws which change the behavior of innumerable individuals.

Green building laws are an excellent example of this transformation. This election cycle, there are several green initiatives on the ballot. For example, a $17.9billion initiative in Washington for improvements to commuter rail and bus service http://law.lexisnexis.com/practiceareas/Environment-Climate/179-billion-clean-transit-plan-on-Seattle-area-ballot.

Additionally, Oregon and New Jersey have been developing comprehensive green building regulatory initiatives. Oregon--http://www.natresnet.org/resblog/post.asp?iPostID=7105; New Jersey--http://www.njlawblog.com/2008/10/articles/real-estate/green-building/legislative-initiatives-in-green-building-arena-abound/

As a result of these laws, buildings in these states will be greener and the environment cleaner, of course. But builders in these states will develop knowledge and experience with green buildings, a market for green products will be enhanced, and consumers will have more green products and buildings to choose from. In short, the benefits will move from the thought leader level to the grassroots level. At its best, lobbying and government outreach is a tool for educating thought leaders who can change policy, thereby transforming the world for the better.

Consumers Coming On Board

2008-10-28T16:17:00.004-04:00

Interesting post on Consumers Buying Into Sustainability
on Bulider Online. Builder Online reports that "energy efficiency" garnered an 88 percent favorability rating among consumers. This reflects, I believe, a growing opportunity for green buildings to command higher rents and be more robust in a declining real estate market.

Tackle Risk Early

2008-10-28T09:57:00.003-04:00

If the government had stepped in a bailed out foreclosing homeowners, would we be in the credit crisis we are in now? Nicholas Stern, a former British Treasury economist, notes that "inaction on emissions blamed for global warming could cause economic pain equal to the Great Depression."
http://www.enn.com/business/article/38498

We are still in a moment when regulation could curb global warming, but not for long. If we think this credit crisis is bad, global warming could be far more economically, as well as environmentally, devastating. Therefore, regulation of carbon, green building laws, etc. cannot get subsumed in short term "cost saving" measures.

An example of this short sighted behavior is being shown in King County, Washington, where $20/month incentives to county officials who bike or walk to work are being threatened. http://sustainable.bizjournals.com/green/King_County_bike-to-work_subsidy_under_fire.html The total cost for the subsidy--$37,000.

California Dreamin'

2008-10-22T09:49:00.002-04:00

California has been on the cutting edge of climate change regulation, including passing the first state-wide code for green building and a new measure to limit sprawl. http://www.jetsongreen.com/2008/10/california-find.html

I have discussed here before that regulation of environmental issues can have a positive benefit--http://greenlaw.blogspot.com/2007/09/regulation-it-really-works.html--and there has been much discussion on the campaign trail about the healing power of green jobs for the economy. The Berkeley Center for Energy, Resources and Economic Sustainability had a study out today which reveals that California's climate change regulation, and the accompanying reduction in energy use, has been very good for the economy. http://are.berkeley.edu/~dwrh/CERES_Web/index.html

New Green Risk Insurance Product

2008-10-21T11:10:00.000-04:00

The retail inland marine division of ACE USA has added green building endorsements to its builders risk product offering which should benefit developers, contractors, architects and owners. "The endorsements are designed to address customers' potential financial loss stemming from changes in environmental standards, repairs using green materials, additional debris-removal expenses, and loss of tax credits.

http://www.insurancejournal.com/news/national/2008/10/21/94835.htm

Insurance of this type should help to alleviate some of the risks associated with building green.

The death of ASHRAE 189?

2008-10-17T12:29:00.002-04:00

Buildinggreen.com had this post today stating that the ASHRAE/USGBC committee putting together the code-based version of LEED had been disbanded. http://www.buildinggreen.com/auth/article.cfm/2008/10/17/Uncertain-Future-for-ASHRAE-Standard-189/

I saw ASHRAE 189 as a mechanism for quashing the issue of incorporating LEED into regulations. Many people have voiced concerns over incorporating private standards, like LEED, into public law. This is, in my opinion, an ill-informed critique. The International Building Code is maintained by a private standards organization, the International Code Council, and is incorporated into almost every municipality's building code. I saw ASHRAE 189 as a similar model. In addition, ASHRAE 189 would have eliminated the legal risk to USGBC that the USGBC would be sued for not approving buildings quickly enough by automatically incorporating LEED standards into law without the need for approval of individual projects by USGBC. This is not good news for the regulated community.

There's No Such Thing As Clean Coal

2008-10-16T10:49:00.002-04:00

http://www.huffingtonpost.com/michael-brune/theres-no-such-thing-as-c_b_135103.html

Finally. Emperor has no clothes.

Interesting Green Leasing Post

2008-10-15T17:44:00.000-04:00

http://sustainable.bizjournals.com/green/Possibilities_to_think_over_when_negotiating_a_green_lease.html

Don't Know Much About Corporate Valuations...But I Do Know This

2008-10-15T17:27:00.004-04:00

Ok, so there is sometimes a great divide in law between the corporate folks (in my office they live on the 20th floor and I see them sometimes rushing around to the printer, whatever that is) and the lit/reg folks that I pal around with. But I do know enough about corporate law to know that a big McKinsey study on how climate change mitigation measures will effect corporate valuations going forward matters. So here is the link to the study--http://www.mckinseyquarterly.com/Corporate_Finance/Valuation/How_climate_change_could_affect_corporate_valuations_2223_abstract

In short, failing to mitigate climate change will decrease corporate valuation and shareholder value. Which could have serious risk implications for the managers and directors in charge of those organizations. Which is another type of potential green legal risk.

More on the Impact of The Financial Crisis

2008-10-14T12:52:00.003-04:00

It looks like Europe, long the leader in climate change regulation may be getting cold feet on adopting the regulations because ofits financial impact, the Wall Street Journal reports here--http://blogs.wsj.com/environmentalcapital/2008/10/13/changed-climate-meltdown-has-europe-backpedaling-on-climate-caps/.

This is very bad news--and as shortsighted as can be. All estimates of the cost of climate change indicate that we will be getting a bargain by addressing the issues now and not waiting until catastropic effects--Tufts estimated in 2006 that the cost of climate change in the US alone would be as great as US$74 trillion. ase.tufts.edu/gdae/Pubs/rp/Climate-CostsofInaction.pdf

I hope that US regulators in the next administration will be less short sighted, but I fear not.

More on Green Finance IN A Time of Crisis

2008-10-12T10:56:00.002-04:00

Interesting article this morning on green as a haven in times of financial crisis, and an analysis of the green investment market over at Resnet. http://www.natresnet.org/resblog/post.asp?iPostID=7053