The Second Best Way to Mitigate Your Risk in Green Building

The best way to mitigate risk in your green building project are properly drafted contract documents prepared by this law firm or by another attorney with green building experience. That may sound self serving, but it is true.

As I posted in this blog less than a year ago, Less than 20% of Green Building Contracts are Properly Drafted.

So, accepting that most readers of this blog will not engage our law firm to draft their contracts, the second best way to mitigate your risk in a green building project is to utilize The American Institute of Architects, 2017 Documents: New Sustainable Projects Exhibit.

This is not a paid endorsement. The document is simply that good.

And while the Sustainable Projects Exhibit, E204-2017, is drafted to work as an exhibit to other AIA A201 family owner, architect, contractor, consultant agreements, even if you do not use their nearly 200 contact documents, this Exhibit, separately purchased, may still be a good choice for you.

The American Institute of Architects has published standard form construction industry documents since 1888.

For the first time, beginning in 2007, there was a single short clause in B101 contract document about sustainability in the project. In response to the significant increase in the number and scope of sustainable projects, in 2011, AIA released the Sustainable Project Guide, D503 (.. that many suggest is still the best single guide to sustainable contracting). In 2012, the sustainable contract provisions from the Guide were incorporated into the A201 family of agreements issued as “SP” Documents. Earlier this year, AIA moved from provisions within the contract documents to this Sustainable Projects Exhibit.

The Sustainable Projects Exhibit creates a process, arguably a LEED v4 IPc1: Integrative Process, by which the project team works to achieve the owner’s green building goal.

The Sustainable Projects Exhibit contains specific defined terms and provisions that allocate the roles, responsibilities and risks encountered on the sustainable project to the project team member, including the owner, architect and contractor in the best position to perform or assume the role, responsibility or risk, including a specialized scope of services for the architect.

The defined terms, the same from the Guide, are the crux of the process. A Sustainable Objective is defined as the owner’s goal. Why does it want a green building; to improve energy efficiency or enhance the health and well being of building occupants or, .. The Sustainable Objective may, or may not, include seeking a specific type of certification.

A Sustainable Measure is the specific item that must be completed by a team member in order to achieve a Sustainable Objective.

A Sustainability Plan is a document prepared by a green building consultant or architect depicting the allocation of Sustainable Measures to team member.

Another 3 definitions relate to certification. Sustainability Certification is a term that refers to a specific certification, such as LEED, Green Globes, ICC 700 and EnergyStar or required by the IgCC or ASHRAE 189.1.

Sustainability Documentation are the writings required a Certifying Authority to document compliance or achievement of a Sustainable Measure.

The Certifying Authority is the entity that is responsible for granting a Sustainability Certification. For example, this could be GBCI for LEED certification.

All of this works to allocate the legal risks of the green building project.

The legal risks addressed in the Sustainable Projects Exhibit include:

Substantial completion as it relates to completing any Sustainable Measures;

Final completion of Sustainability Measures including Sustainability Certification;

Evolving standard of care as green building becomes mainstream;

Addressing warranties that a project will achieve a Sustainable Objective which is made complicated by mandatory laws and codes;

Use of new materials with limited testing which are a hallmark of green buildings;

Approving substitutions that may impact Sustainable Measures; project registration fees and authorization to act on behalf of the owner; and,

A specific waiver of consequential damages that may be encountered in green building.

Unfortunately most, green building projects fail to utilize contract documents that properly incorporate provisions necessary and proper to address the legal risks inherent in sustainable projects. It is suggested that this new short six page Sustainable Projects Exhibit, when properly completed, will be user friendly and remedy that disjunction.

The Sustainable Projects Exhibit is available at www.aiacontracts.org/purchase.

Again, the new AIA Sustainable Projects Exhibit is the second best way to mitigate risk in your green building project. It may be shameless self promotion, but the very best way to mitigate risk is a properly drafted contract document prepared by this law firm or by another attorney with green building experience.

LEED Commercial Interiors can Save the Planet

By Katie Stanford and Stuart Kaplow

LEED Commercial Interiors projects present the best single opportunity for greening buildings.

The proof is in the numbers. There are more than 5.6 million existing commercial buildings in the United States today.

And despite the wildly successful U.S. Green Building Council’s LEED (the ubiquitous acronym for Leadership in Energy and Environmental Design), the most widely used green building rating system in the world, less than 1% of commercial buildings in the U.S. are LEED certified (.. the percentage worldwide is obviously far lower). There is a huge opportunity in that remaining over 99% of the more than 5.6 million existing commercial buildings.

Of the more than 28.8 businesses in the U.S. greater than 80% exist in rented space within those existing commercial buildings.

LEED for Commercial Interiors enables project teams who may not have control over the whole building to build out green tenant spaces. Simply stated, LEED CI is the green benchmark for tenant improvements.

New construction of green buildings cannot save the planet in the short or mid term. Less than 170,000 new commercial buildings were constructed in the U.S. last year and while, of course the vast majority of those were not green (LEED certified or otherwise), that number is all but insignificant given 5.6 million existing buildings, being over 87.4 billion square feet of floor space. But greening those millions of existing buildings, one commercial build out at a time, can have a huge impact.

And for projects registered since October 31, 2016 that means the LEED v4 ID+C: CI rating system.

But what do historical numbers presage? Of the more than 90,900 total registered LEED commercial projects as of August, 2017, few are LEED CI? Actually the numbers are surprisingly low when compared to other LEED rating systems

Today there are only 3,392 LEED CI 2009 projects. In the earlier version, there are only 1,328 LEED CI 2.0 projects. And in the initial pilot only 48 LEED CI 1.0 projects

However, the early v4 numbers foretell a Gold opportunity.

There are 34 certified LEED v4 ID+C: CI projects already certified comprising 1.8 million square feet. 22 of those projects are outside of U.S. 12% of those are certified Platinum, 34% certified Gold, 23% certified Silver, and 29% Certified. So the largest number are certified Gold, conjuring up a Gold rush.

That Gold opportunity is because LEED v4 is a significant upgrade to the LEED 2009 version of the rating systems. LEED v4 is not simply a step in the continuous improvement of the rating system. And while not a Neil Armstrong “giant leap for mankind” it is all but an entirely new third party verified green building rating system with the potential to boldly go where it has not gone before, including in the CI market.

Upon review, the 34 LEED v4 ID+C: CI projects already certified, inspire optimism not only for the green building industrial complex, but also the larger built environment. The projects are as varied as nearly 3 dozen buildings can be. We reviewed the Green Loop Headquarters, an office, awarded Gold v4 only 10 days ago that is only 846 square feet. We also studied the Bindery on Blake renovation of Suite 100, a Gold v4 certified office that is a much larger 22,000 square feet. There are some LEED credits that scream opportunity:

CI v4 project teams should view the new CI v4 IPc1: Integrative Process credit as an opportunity. This new credit is achieved with an initial analysis of energy and water systems to identify synergies within the project design that can optimize energy and water use.

The CI v4 WEc1: Indoor Water Use Reduction credit rewards tenant spaces that exceed the minimums specified in the CI v4 WEp1: Indoor Water Use Reduction prerequisite. Points are earned for every 5% of additional potable water savings over the prerequisite for reductions of 20%. Curiously the WaterSense label requirements for plumbing fixtures that were recommended in LEED 2009 are made mandatory; at a time that EPA has announced it intends to discontinue the program (possibly spinning off Watersense to a private owner?).

The CI v4 EAc1: Enhanced Commissioning credit goes farther than the fundamental commissioning incorporating changes from the v4 prerequisite that make this credit more advantageous and less first dollar cost intensive than in v 2009. Be aware that building envelope commissioning is now included in this credit.

Another new credit is CI v4 EAc3: Advanced Energy Metering, requiring tenant energy meters to provide tenants with data or installing advanced energy metering for all energy sources in the space. Smart meters including and wireless metering are making sub-metering realistic in most spaces.

There are 2 options to achieve the CI v4 MRc6: Construction and Demolition Waste Management credit, either diverting waste from landfills or now new and improved v4 provides a novel alternative for source reduction that is not generating more than 2.5 pounds of construction waste per square foot.

CI v4 MRc1: Long Term Commitment can be achieved simply by signing a 10 year or longer lease. The concept is that the longer the term of occupancy the less materials required for the move by an existing tenants and a new tenant occupying the space.

One of the new credits that is much talked about is CI v4 EQc9: Acoustic Performance. And while this does not really work with an open floorplan, building occupants report dramatic positive results from impacting HVAC background noise, sound isolation, reverberation time, and sound reinforcement and masking. An interesting quirk, this credit requires that local codes are used in place of national codes, to the extent that such exist. The noise level limit for schools is 35 dBA which can be difficult and expensive to comply with, but the limits are less strict for offices, conference rooms and the like.

Perusing the CI v4 checklist will no doubt suggest other credits that are efficacious for a particular project. And don’t forget to consider Innovation credits and Regional Priority credits that can quickly add points to your total.

But, of course a LEED CI v4 project is not the only answer. The LEED Existing Building rating systems present an alternative, but have to date failed to move the market. LEED EB has not been available to most commercial buildings because they cannot achieve an EnergyStar Portfolio Manager rating of at least 75. Additionally, LEED EB requires a whole building and when most commercial building are rented to more than one tenant, such is an issue.

Another very good option may be the USGBC’s relatively new Arc. According to USGBC, Arc is a “state of the art platform designed to help you collect, manage and benchmark your data so you can improve sustainability performance.” Arc is a benchmarking tool, requiring data inputs in 5 categories: energy, water, waste, human experience, and transportation. The bulk of this data is readily available through EnergyStar Portfolio Manager (that EPA has also announced it intends to discontinue or greatly scale back, possibly spinning off EnergyStar to a private owner).

The data tracked by Arc is measured by a ‘performance score.’ This score can be utilized as a benchmarking tool, in and of itself, and it can also be directly translated to a LEED certification. (The Arc pathway is ideal for many LEED EB buildings looking to recertify, as it allows a project to forgo costly prerequisites and many credits).

We are told, people in the U.S. spend approximately 90% of their time indoors. In the context of this article, making those commercial interior spaces better work places results in healthier and more productive workers that has a dramatic impact on the bottom line. LEED for Commercial Interiors and Arc enable project teams who may not have control over the whole building to build out indoor spaces that are better for people that occupy them while at the same time being better for the planet.

The hard fact is there are just not enough new buildings constructed each year, even if all of those were green (but the true number is less than 20% of those may be green) to significantly reduce the impact that the built environment is having on the natural environment. The sweet spot is greening the buildings that already exist.

Greening the millions of existing buildings, one commercial build out at a time, with LEED CI v4 certified or Arc scored space, can actually save the planet.

______________________

Katie Stanford LEED AP O+M, Fitwel Ambassador, is a project manager at Lorax Partnerships, LLC, a green building consulting firm in Baltimore where she specializes in existing buildings. She can be reached at Katherine@loraxllc.com. Stuart Kaplow, Esquire is a sustainability and environmental attorney at Stuart D. Kaplow, P.A. in Baltimore with focused experience in green building. He can be reached at skaplow@stuartkaplow.com.

Denver Voters Petition Green Roof Mandate to the Ballot

The Denver Elections Commission has announced that the Denver Green Roof Initiative, a mandatory green roof ballot initiative will appear on the November 7 ballot.

A ballot initiative is a means by which a petition signed by a certain minimum number of registered voters can bring about a public vote on a proposed statute or measure.

This is a,

measure that requires every building and any roof replacement of a building with a gross floor area of 25,000 square feet or greater, or a building addition that causes the building to become 25,000 square feet or greater, constructed after January 1, 2018, shall include a green roof or combination green roof and solar energy collection,

With green roof coverage based on the size of the building such that a 25,000 square foot building must have 20% green coverage of available roof space, in increasing area, including that a 200,000 square foot building must have 60% green coverage.

The mandate will require, when structurally possible, the growing media must be a minimum 4 inches. Plant selection is left to the building owner with the requirement that within 3 years of planting, the plants must cover no less than 80% of the vegetated roof. Such a structure will likely be efficacious with respect to storm water management and reducing the roof temperature, but the science of urban heat island effect has been called into question in recent years.

For existing buildings without sufficient loading capacity for a green roof, there will be an exemption process that will encourage implementation of a smaller green roof or some combination with solar panels. Exempted buildings must pay a cash in lieu of construction of a green roof for the reduced or exempted area at $25 per square foot. Violations will be criminal, punishable by a fine of up to $999 and imprisonment for up to one year.

The officially certified content of the ballot was announced in a Tweet from ‎@DenverElections and included Initiated Ordinance 300 – Denver Green Roof Initiative.

A coterie of groups, including Green Roofs for Healthy Cities, announced that they had gathered more than 7,000 signatures of which 4,771 were confirmed valid, just exceeding the 4,726 signature threshold to be included on the ballot by 45 signers.

“More than 80% of the people we talked to loved the idea and wondered why we weren’t already doing it,” according to Brandon Rietheimer, founder of the Denver Green Roof Initiative.

This is believed to be the first successful voter initiative petitioning a green roof mandate to voter ballot.

The proposed green roof requirement is based largely on the City of Toronto Green Roof Law but would apply to not only new, but also expanded existing buildings with over 25,000 square feet.

San Francisco was the first local jurisdiction and one of very few in the U.S. to mandate green roofs or solar panels on new buildings as of January 1, 2017.

In a nation sharply divided about the direction of environmental policy, an environmental initiative petitioned to the ballot by voters is huge. Colorado is has been a Blue state in the last two elections, but Denver is solidly left of center, so it is possible this ballot initiative could pass on November 7.

Environmental voter initiatives could become de rigueur across the country

Green Globes to be Approved in Maryland

Last week the Maryland Green Building Council voted unanimously to recommend that Green Globes, at the two Green Globes level, be approved by the Maryland Secretaries of Budget and Management and General Services as a “high performance building” as defined in Maryland law.

The vote is being widely heralded as a significant step forward in expanding green building in the State and across the country.

Vicki Worden, President and CEO of the Green Building Initiative, said,

GBI has been active in Maryland since Green Globes was first introduced in the United States in 2004. The more recognition Green Globes is afforded, the more our credible, practical and cost-effective tools can help expand the green building pie. We are appreciative of the many dedicated volunteers on the Maryland Green Building Council that have reviewed Green Globes and others that have used Green Globes over the years and recognize its ability to contribute to improving the built environment in Maryland.

There are already 48 Green Globes certified buildings in Maryland. And in combination with GBI’s Guiding Principles Compliance program, which is used by federal agencies, GBI has certified a total of 85 buildings in Maryland.

The action taken last Wednesday was by the Maryland Green Building Council, a governmental body (not to be confused with a U.S. Green Building Council chapter) established by an act of the legislature in 2007, replacing the prior Council of the same name created by Executive Order in 2001. The Green Building Council’s portfolio is dramatic in that it directly impacts not only much of the construction funded by the State’s capital budget and indirectly a great deal of private sector building in a state with among the most green building in the nation.

The current law, in State Finance and Procurement, § 3-602.1, provides “in this section”

(2) “High performance building” means a building that:

(i) meets or exceeds the current version of the U.S. Green Building Council’s LEED (Leadership in Energy and Environmental Design) Green Building Rating System Silver rating;

(ii) achieves at least a comparable numeric rating according to a nationally recognized, accepted, and appropriate numeric sustainable development rating system, guideline, or standard approved by the Secretaries of Budget and Management and General Services; or

(iii) complies with a nationally recognized and accepted green building code, guideline, or standard reviewed and recommended by the Maryland Green Building Council and approved by the Secretaries of Budget and Management and General Services.

The vote last Wednesday, in accordance with that subsection (iii), the Maryland Green Building Council having reviewed the Green Building Initiative, Green Globes green building rating system, which is a nationally recognized and accepted green building code, guideline, or standard; recommended that Green Globes, at the two Green Globes level, be approved by the Secretaries of Budget and Management and General Services as a “high performance building” as defined in State Finance and Procurement § 3-602.1.

Additionally, the panel expressly recommended that for private sector  Maryland rehabilitation tax credits, as provided for in in State Finance and Procurement § 5A-303, three Green Globes be determined as comparable to LEED gold as achieving,

.. at least a comparable numeric rating according to a nationally recognized, accepted, and appropriate numeric sustainable development rating system, guideline, or standard approved by the Secretaries of Budget and Management and General Services under  § 3-602.1 of this article.

Moreover, private building will be greatly advantaged by this action for the purposes of expanding buildings eligible for property tax credits. State Tax Property § 9-242 has its own definition, “in this section, ‘high performance building’ means a building that:”

(i) achieves at least a silver rating according to the U.S. Green Building Council’s LEED (Leadership in Energy and Environmental Design) green building rating system as adopted by the Maryland Green Building Council;

(ii) is a residential building that achieves at least a silver rating according to the International Code Council’s 700 National Green Building Standards;

(iii) achieves at least a comparable rating according to any other appropriate rating system; or

(iv) meets comparable green building guidelines or standards approved by the State.

Local governments will now be able to grant a tax credit against the property tax imposed on a high performance building that will include a building that achieves at least a two Green Globes rating.

Maryland state law has not less than five different definitions (and at least four counties have their own definition) of high performance building and at least one is not impacted by this action. For example, the Public Safety § 12-509 definition of a high performance home will remain,

a new residential structure that meets or exceeds the current version of: (1) the Silver rating of the International Code Council’s 700 National Green Building Standards; or (2) the Silver rating of the U.S. Green Building Council’s LEED (Leadership in Energy and Environmental Design) for Homes Rating System.

In some instances, including for private sector buildings to obtain a tax credit, state law requires building “achieves at least a silver rating,” that is, actually be certified by GBCI. But for the purposes of public sector building, the requirement is only that the building “meets or exceeds the current version of” LEED Silver and third party certification is not required.

This Maryland Green Building Council action is substantially the same as when Maryland approved the use of the IgCC 2012 for state funded building, but that adoption so altered and amended the green code such that no project has ever used it. It is anticipated this recommendation will become final in the coming days.

This is an exciting expansion of green building. As project developers grapple with the new LEED v4, in Maryland for state buildings and for many privately owned projects in this State with so much green building, there will be an alternative for building green.

And maybe most important, there are 49 states with GBI certified buildings today, this type of government action will result in more green building everywhere.

I would be remiss if I did not make you aware that Maryland Governor Larry Hogan recently appointed me to the Maryland Green Building Council and I was pleased to participate in the vote last week.

Solar Panel Tariff Fight Makes Strange Bedfellows

The U.S. International Trade Commission held a nearly 10 hour initial public hearing this past Tuesday on a petition seeking tariffs and price minimums on low cost imported solar panels.

The petition seeks duties of 40 cents per watt on imported solar cells and also a floor price of 78 cents per watt on solar panels made by foreign manufacturers.

Suniva, a solar panel manufacturer, now in bankruptcy, initially submitted a petition to the ITC on April 26, 2017. The petition triggered an investigation by the ITC,

.. pursuant to section 202 of the Trade Act of 1974 to determine whether crystalline silicon photovoltaic cells (whether or not partially or fully assembled into other products) are being imported into the United States in such increased quantities as to be a substantial cause of serious injury, or the threat thereof, to the domestic industry producing an article like or directly competitive with the imported articles.

SolarWorld, a German company with a manufacturing operation in the U.S. that also filed for insolvency joined Suniva as a co-petitioner in the anti-dumping case in May.

The opposition to the petition is an unlikely coterie that could be the very definition of “politics makes strange bedfellows.” Environmental groups and conservative free trade policy groups are companions in fighting the tariffs. Representatives of the emergent solar energy industry urged the ITC not to apply tariffs on imported solar cells, saying it would slam one of the fastest growing industries in the U.S., hurt blue-collar workers gaining from new jobs in rural communities and raise electricity costs on the growing number of consumers benefiting from falling solar prices. Much of that opposition is organized by the businesses, including contractors that sell and install solar energy systems who told the ITC that the companies’ failure in the U.S. had “nothing to do with imports.”

That said, and despite that there are a lot of low cost imported solar panels in the market, there are also a lot of jobs. Solar trade groups tout that “solar jobs last year grew 25%, contributing 1 out of every 50 new jobs created in U.S., and the industry has added more than 100,000 blue-collar jobs to the economy in the last five years.” And those jobs are at risk if tariffs are imposed.

A coalition of conservative groups including the American Legislative Exchange Council that support free trade have joined in opposition to solar tariffs.

A review of the official Witness List, including who has lined up on each side, is simply fascinating.

But that is just the beginning of the irony. According to Suniva’s Chapter 11 filing, it is 63% owned by Chinese firm Shunfeng, whose southeast Asia products would be subject to the higher tariffs sought in its ITC petition. And such is also true for SolarWorld AG headquartered in Bonn, which would find its non U.S. products subject to the requested tariffs.

Not to mention that a Chinese owned company and a subsidiary of a German company are seeking trade protections from the U.S. government?

“What was clear today is that two foreign-owned companies seeking U.S. government subsidies who disingenuously claim to represent solar manufacturing were on one side and the broader unified solar industry united on the other,” said Abigail Ross Hopper, Solar Energy Industries Association’s president and CEO. “We hope the ITC sees the petition for what it is.”

Additionally, the opponents who are emboldened by the new solar industry installation workforce further argue that these two foreign financiers “are looking for U.S government protection after receiving tens of millions of dollars in federal and state handouts” but failing to remain competitive with the fast changing industry.

The hearing Tuesday was part of the injury phase of the investigation. In this proceeding the ITC must find that increased imports were the substantial cause of the industry’s serious injury. The ITC will make a recommendation to the Trump Administration by November. And despite that Stephen Bannon who campaigned against “globalists” was no longer an Administration strategist as last week came to an end, it is a populist Administration that will be making the final decision.

You should follow this case that could have a dramatic impact on the solar industry, but not immediately alter your business plan on the remote chance that these tariffs will be imposed over the interests of blue collar jobs.

You Should Not Contract With Your Environmental Consultant

In an effort to mitigate risk you should not contract directly with an environmental consultant, but rather your attorney should contract with that consultant.

While laws vary from state to state, in the vast majority of factual situations a business or property owner is ill served by contracting directly with a third party for most environmental services.

And yes, of course an experienced environmental attorney will be able to recommend third party consultants to undertake an investigation, provide counsel on the necessary and proper scope of those services, aide in interpreting results and make recommendations about how to move forward, but this blog post is about the role of legal counsel in mitigating risk in the realm of hazardous substances and the like. What is described here is much more than simply good drafting of consultant contacts (e.g., so that investigation derived wastes, such as drill cuttings and bailed groundwater, are properly disposed of by the consultant).

The recommendation here is that in an environment of strict liability hazardous substance laws, from CERCLA and its state counterparts to local lead based paint codes, attorneys should be contracting with those undertaking hazardous substance investigations and the like.

First and foremost, the attorney-client privilege protects communications made in confidence by a client to its attorney in the attorney’s professional capacity for the purpose of obtaining legal advice. Significantly, the attorney-client privilege can extend to consultants hired by the attorney on behalf of a client. Be aware, however, only where the document or communication is primarily concerned with legal assistance does it come within the attorney-client privilege.

Second, the separate work-product doctrine is a qualified privilege and is distinct from and broader than the attorney-client privilege. The work-product doctrine protects documents prepared by attorneys in anticipation of litigation for the purpose of analyzing and preparing a client’s case. The litigation need not be ongoing or even imminent and it may simply be possible future litigation.

Third, environmental services contracts with an attorney almost always also include a broad confidentiality provision encompassing the contract itself, the scope of services, any test result, all reports (that should be only in draft form), and more.

And fourth, the client should not have knowledge of certain environmental facts. Some suggest that the role of legal counsel appears to morph into that of an environmental advisor. And it may be much more than that. In many instances all data, results, information, and draft reports are not only legal counsel’s property, but none of that documentation or detail is shared with clients (not a board of directors or a sole proprietor real estate developer). What a property owner does not know it cannot share.

This topic includes ordering a Phase I Environmental Site Assessment in contemplation of a real estate transaction, but it includes so much more, .. think defensively.

Eat, Pray, Greenbuild?

I am often asked, “how can I expand my green building business?” My answer is simple and the same response I have offered for years, attend the Greenbuild International Conference and Expo.

This year Greenbuild is in Boston from November 8 – 10.

I do not claim any particular business marketing prowess. Nor can I promise you will find the balance between worldly enjoyment and divine transcendence at Greenbuild, but Greenbuild has been a prime source of new clients for my sustainability and green building law practice (.. okay, this blog is actually our number 1 source of new clients, but Greenbuild is second)!

I have attended a lot of Greenbuilds. Actually my first U.S. Green Building Council “Green Building Conference” (yes, pre Greenbuild) held in conjunction with the National Institute of Standards in Gaithersburg, Maryland in 1994 had only 450 people in attendance. While attendance in recent years is off a bit from the huge Greenbuild the last time the conference was in Boston in 2008, with 27,995 attendees (.. that was a party!), last year the 18,079 attendees in LA dwarfed the first Greenbuild in 2002 when 4,189 people gathered in Austin.

Those 18,079 attendees last year were from 96 countries, despite the internationalization of the conference. In 2017 USGBC has expanded the Greenbuild platform to include conferences in India and China, in addition to Greenbuild Boston and Greenbuilding Brasil.

Greenbuild attracts all types. Last year 24% of those in LA were from architecture or engineering firms, 14% were contractors and builders, 10% were utilities and 8% were manufacturers, not to mention the very large numbers of professionals offering services and consulting, including, yes, a large assemblage of real estate attorneys.

And Greenbuild is sustainable. USGBC reported in 2016, it upheld its commitment to offsetting 100% of the 866 lbs. of GHG emissions per participant.

Last year there were 531 exhibitors on the 138,960 square feet Expo Floor. It is all but impossible not to encounter new vendors and innovative suppliers. Educational activities abound and there is a lot to learn.

Those 2016 demographics are proof that Greenbuild is the largest green building gathering each year and unquestionably the best opportunity for networking among “green people.”

Greenbuild 2017 in Boston will be “the” target rich environment for green people this year. It is your chance to meet new USGBC CEO Mahesh Ramanujam, the man to know, and many others who make a living in the environmental industrial complex.

It is only 100 days until this once a year opportunity to expand your green building business.

For those who will complain that this blog post is shameless promotion of USGBC, that may be true, but it is also correct that Greenbuild has been a prime source of new clients for my law practice for more than a decade! LEED is still where it is at in green building. It has become all but a spiritual movement, with nearly 90,000 registered and certified projects and more than 19.15 billion square feet participating in LEED across 165 countries and territories. Every day, 2.2 million square feet of building space certifies to LEED.  I won’t promise you the inner peace and spiritual balance of Eat Pray Love, but if you want to benefit from that business volume, you should be at Greenbuild.

And you may find Eat Pray Love’s true pleasure of nourishment in Boston; it is a great food town. And I will help you. As a reader of this blog, if you email me before Greenbuild, I will contribute to your self discovery by buying you a drink or a cup of coffee at a Boston watering hole. (I made a similar offer last year and had a great time meeting a lot of very fun people for drinks in LA.) I hope to see you in Boston in November.

FTC Settles Charges Over Deceptive Zero VOC Claims

Paint Can Label from Exhibit B in FTC Complaint

Four paint companies have agreed to settle Federal Trade Commission charges that they deceptively promoted products as containing zero volatile organic compounds (VOCs) or as emission free, including during and immediately after application. Some promotions also made explicit safety claims.

Specifically, the first FTC complaint alleges,

In connection with the advertising, promotion, offering for sale, or sale of Natura paints, Respondent has represented, directly or indirectly, expressly or by implication, that: a. Natura paints are emission-free.

Natura paints are emission-free during or immediately after painting.

Natura paints will not emit any chemical or substance, including VOCs, that causes material harm to consumers, including sensitive populations such as babies, asthmatics, and allergy sufferers.

Natura paints will not emit any chemical or substance, including VOCs, during or immediately after painting, that causes material harm to consumers, including sensitive populations such as babies, asthmatics, and allergy sufferers.

The FTC alleged, the company had no evidence to support those claims.

The four companies, Benjamin Moore & Co., Inc., ICP Construction Inc., YOLO Colorhouse, LLC, and Imperial Paints, LLC, have agreed to consent orders that would bar them from making unqualified VOC free and emission free claims.

VOCs are chemical compounds that easily evaporate at room temperatures. All paints emit chemicals during the painting process and while drying. Some of these chemicals can be harmful to the environment and people, especially to sensitive groups such as babies and those suffering from asthma or allergies. Arguably there is no zero VOC paint, but that was not the basis of these complaints.

In these four complaints, the FTC charged each company with making “unsubstantiated” claims that their paints were free of emissions and/or that they contained no VOCs, without any qualification (e.g., after X number of hours). The FTC also charged the companies with facilitating deception by retailers who sold their paint. Additionally, in its complaints against Benjamin Moore and ICP Construction, the FTC alleged that the companies marketed their paint using “Green Promise” and “Eco Assurance” environmental seals, respectively, without disclosing to consumers that they had awarded the seal to their own products.

Each of the proposed consent orders settling the charges against Benjamin Moore & Co., Inc., Imperial Paints, LLC, YOLO Colorhouse, LLC, and ICP Construction Inc. contains four provisions designed to ensure the companies do not engage in similar conduct in the future, including:

First, they would prohibit the companies from making unqualified VOC free claims and emission free, unless both content and emissions are actually zero, or emissions are at trace levels, beginning at application and thereafter. The proposed orders’ definition of “trace level of emissions,” which track the Green Guides,’ “trace amount” test, requires, in part, that emission at that level does not cause material harm that consumers typically associate with emission from the covered product, including harm to the environment or human health.

Second, they would prohibit the companies from making claims about VOC levels, emission, odor, and other environmental or health benefits, unless they are true and not misleading, and unless the companies have competent and reliable scientific evidence to back them up.

Third, to correct existing unsubstantiated claims, the orders would require the companies to send letters to their distributors, instructing them to stop using existing marketing materials and providing stickers or placards to correct misleading claims appearing on product packaging or labeling.

Fourth, the orders would bar the companies from providing third parties with the means of making false, unsubstantiated, or misleading representations about material facts regarding paints described.

The proposed orders against Benjamin Moore & Co., Inc. and ICP Construction Inc. contain two additional provisions, which would prohibit them from misrepresenting third party certifications and failing to adequately disclose a material connection with an endorser.

The Commission vote to accept the consent agreements was 2-0. The FTC published a description of the consent agreement packages in the Federal Register. The agreements are subject to public comment for 30 days through August 10, 2017, after which the Commission will decide whether to make the proposed consent orders final.

Note that the Commission issues an administrative complaint when it has “reason to believe” that the law has been or is being violated, and it appears to the Commission that a proceeding is in the public interest. When the Commission issues a consent order on a final basis, it carries the force of law with respect to future actions. Each violation of such an order may result in a civil penalty of up to $40,654.

There are potentially significant legal ramifications for owners of walls to which the paint has been applied, including those that utilized the application of paint on the 94% of LEED new construction 2009 projects that earned the indoor environmental quality credit for low emitting materials – paints and coatings, and there are implications for the design professionals who specified the product and for the erectors of buildings that applied it.

South Miami Poised to Mandate Solar Panels

The City of South Miami, Florida City Commission is scheduled to take a final vote on July 18 on an ordinance that will require rooftop photovoltaic panels on new construction and major renovations.

The ordinance is likely to pass given that at its July 12 meeting the second reader version of this ordinance passed with a 4 to 1 vote.

The proposed requirement is a first anywhere except in California where there are only a very few locales with a similar mandate. The ordinance is modeled after similar laws enacted in the California municipalities of Lancaster, Sebastopol, and Santa Monica, and the City of San Francisco.

There are places like Baltimore that as part of its green building code require 1% onsite renewable energy (not only rooftop solar) and in lieu allow the purchase of green power. Such is arguably more progressive than mandating rooftop solar only, but still makes matters of energy a priority. And many governments incentivize solar on top of the existing federal tax incentives.

There was opposition to this mandate expressed at the City Commission session, including real concern this will pressure affordable housing. There was also concern expressed that it can be difficult and more expensive to sell a house with rooftop solar panels.

But the Commission members were swayed by the June 13 Planning Board review and unanimous approval for “requiring solar energy collectors as part of new construction of certain residential dwellings.” The Commission concluded rooftop solar installations will benefit the local economy by supporting small businesses, creating well-paying jobs, and directing profits to local business owners; in spite of opposition that characterized the real beneficiaries as Wall Street lenders and Chinese solar panel manufacturers.

Specifically, the ordinance mandates this new requirement applies to,

All new construction of single-family residences, townhouses, and any multi-story residential building where a section of roof can be reasonably allocated, as determined by the Director of the Building Department or the Planning and Zoning Department, ..

This requirement shall also apply to existing residential buildings as described above, if an alteration or addition is made that either increases the square footage of the principal structure by 75% or greater, or that replaces 75% or more of the existing sub-roof.

And the mandate requires, at a minimum,

One panel with a minimum of 2.75 kW nameplate photovoltaic capacity per 1,000 square 20 feet of living area provided there is sufficient space within the available roof top Solar Zone; or 175 square feet of solar collectors per 1,000 square feet of roof area.

The ordinance is here.

The ordinance is likely not a model for other jurisdictions, but viewed most positively, noting it impacts only one small south municipality in the sunshine state, this is part of an evolving energy dialogue that may force a larger debate about the nature of energy in our society. In the country that banned the 100 watt lightbulb, should anyone be surprised that a small city in Florida is legislating onsite renewable energy as a public good?

Mold can be Arrested in the Marketplace

Extensive mold contamination on ceiling and wall

Concern about exposure to indoor mold has been increasing as the public becomes sensitive to issues of building occupant health and wellbeing.

Mold problems in buildings have in large measure been exacerbated by changes in building codes and construction practices that began in the 1970s. In the quest to be more energy efficient, buildings are more tightly sealed, with minimum ventilation rates that are intended to provide indoor air quality that is acceptable to human occupants but often has the unintended consequence of allowing moisture buildup and resultant environmental externalities, including mold. Moreover, many modern materials, such as drywall, do not allow moisture to escape easily.

Some suggest mold is an externality of green building.

It is time for more and better science about mold including methodologies to minimize adverse health effects. Adverse health impacts from mold can most efficiently be recognized by the marketplace and enforced by the rule of law in state courts in lieu of new top-down government regulation in this area.

There are no EPA regulations or other federal standards for airborne mold contaminants. Maybe more correctly stated, there is no government enforcement mechanism or Threshold Limit Values for airborne concentrations of mold, or mold spores.

Mold is a microscopic form of fungi. Mold is found nearly everywhere both indoors and outdoors. Mildew refers to certain kinds of mold. Mold growth is encouraged by warm and humid conditions, although it can grow during cold weather also. There are many thousands of species of mold and they can be in any color, including white, orange, green, brown or black. Most fungi, including molds, produce microscopic cells called “spores” that spread easily through the air. Live spores act like seeds, forming new mold growths (colonies) when they find the right conditions. All of us are exposed to fungal spores daily in the air we breathe, both outside and inside.

Most, if not all, of the mold found indoors comes from outdoor sources. Indoors it grows and become a problem when there is water damage, high humidity or dampness. Mold needs moisture to grow. Common sources of indoor moisture that can cause mold problems include flooding, roof and plumbing leaks, damp basements or places where moist air condenses.

Small amounts of mold growth in workplaces or homes are not a major concern. When molds are present in large quantities, they may cause nuisances and health problems for some people.

Most people will have no reaction when exposed to mold. Allergic reactions, similar to pollen, including runny nose, eye irritation and skin rash, are the most common health effects for individuals sensitive to mold. Flu-like symptoms, such as cough, congestion, headache and fatigue may also occur. Some individuals are more sensitive than others, including possibly infants and children, individuals with respiratory conditions or allergies and asthma, and persons with weakened immune systems.

Most symptoms are temporary and are eliminated by correcting the mold problem.

Some mold can produce toxic substances termed mycotoxins. Airborne mycotoxins have not been shown to cause health problems to occupants in residential or commercial buildings. The health effects of breathing mycotoxins are not well understood and requires more study.

The fake news sometimes refers to “black mold” or “toxic black mold.” It is at times associated with the mold Stachybotrys Chartarum, a type of greenish-black mold commonly arising from significant water damage. Known health effects are similar to other common molds. EPA has made clear, early reports of severe effects have been put in doubt by later research.

In most instances when visible mold is present, sampling is unnecessary. Since no EPA or other federal limits have been set for mold or mold spores, sampling or testing cannot establish a building’s compliance with a nonexistent government standard; and that is not a bad thing. Surface sampling may be useful to determine if an area has been adequately cleaned or remediated.

It is time for the problems of mold to be addressed when Americans, on average, spend approximately 90% of their time indoors. We need more and better science about adverse health effects of mold, including an examination by the environmental industrial complex of mold as an externality of green building?

Adverse health impacts from mold can most efficiently be policed by the marketplace and enforced by the rule of law.

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