IgCC will now be Powered by ASHRAE 189.1

Last Friday, the International Code Council and ASHRAE announced they signed an “agreement that the new version of the International Green Construction Code (IgCC), .. scheduled to be released in 2018, .. will be powered by” ASHRAE Standard 189.1 for the Design of High-Performance Green Buildings.

Much of the early reaction has been nonplussed given that, today, there are only a handful of IgCC green buildings.  

The ICC will still be responsible for IgCC Chapter 1, Scope and Administration, so that the green code will continue to be integrated into the ICC construction codes. And now that ASHRAE will be developing all the technical provisions of the IgCC, ICC announced the “2017 Group C cycle to develop the 2018 IgCC has been cancelled.”

By way of background, in 2005, U.S. Green Building Council and Illuminating Engineering Society of North America, worked in concert with and provided technical support to ASHRAE in developing the first ASHRAE Standard 189.1. Shortly thereafter, independently, ICC began development of the IgCC, which was first published in 2009. Standard 189.1 was published with the IgCC as an optional alternative compliance path for governments adopting a green code.

Against that blurring of the lines between green building standards, codes and rating systems, in 2014 the ICC, ASHRAE, the American Institute of Architects, the IES, and the USGBC announced the signing of a memorandum “to collaborate on the development of future versions of Standard 189.1 and the LEED green building program.” From that agreement has come an Executive Steering Committee to align the green programs.

The 2018 green code also will align with LEED to provide “a streamlined, effective set of regulatory and above-code options.” To achieve LEED certification, buildings will continue to have to satisfy prerequisites and earn credits above levels necessary to meet the IgCC.

Some are concerned that relying on ASHRAE’s technical expertise alone risks further stifling innovation in green building. Accepting that green building is a geoengineering solution to the negative impacts that man has on the natural environment, anything that might further slow and already stalling domestic green building market is problematic.

Others are concerned that the nonpublic written agreements between these stakeholder groups despoil any purported voluntary consensus process, favoring one industry player over another in the multi Billion dollar domestic construction industry.

But many commentators suggest the real problem can be traced to March 18, 2002, when the City of Normal, Illinois enacted the first law mandating that all new buildings within a business development district be required to achieve LEED certification. LEED was designed as a voluntary rating system and to gerrymander it into a code is not efficacious.  Many believe that voluntary, non mandatory green building is the best hope for environmental protection and stewardship of our planet; hence the broad brand and wide market share acceptance of LEED.

The broad failure of the IgCC to be implemented by only 19 of the 89,055 governments with permitting authority in the country portends a mandatory code that goes far beyond life safety may be going too far.

But the announcement last Friday means there will be a 2018 version of the IgCC (.. something that was less than certain given the very low market acceptance of the IgCC). Whether created by the ICC or by ASHRAE, a mandatory IgCC will remain controversial. This change also means there will continue to be green standards, codes and rating systems. Such is good for green building and good for the stewardship of our planet.

The First Green Building Litigation. The Rest of the Story.

It was widely reported that the first green building litigation in the country was the 2007 trial court case of Southern Builders, Inc. v. Shaw Development, LLC, in the Circuit Court of Maryland for Somerset County, case no. 19-C-07-011405.

In the spirit of Paul Harvey’s “The Rest of the Story” radio program, last week I telephoned Jim Shaw, of Shaw Development, to follow up, ..  

In the Southern Builders case, disputes and difference arose out of the construction of a $7.5 Million, 23 unit luxury condominium and restaurant project in Crisfield, Maryland, called Captain’s Galley and substantially completed in 2006. In January 2007, Southern Builders, the general contractor, commenced a mechanics lien action in the Circuit Court. A counterclaim was filed by Shaw Development alleging breach of contract and negligence. Significantly, a motion to stay proceedings and compel arbitration was granted by the court in response to the contract provision (the parties having utilized AIA B101 – 1997™) that mandated binding arbitration. In advance of arbitration, the disputes and differences were resolved between the parties and a stipulation of dismissal was filed in June 2007.

Despite that relatively simple procedural history, much has been written about the case, largely overstating an allegation in the counterclaim that claimed,

“10. Specifically, the Project Manual and Scope of Work required Southern Builders to construct an environmentally sound “Green Building,” in conformance with a “Silver Certification Level according to U.S. Green Building Council’s Leadership in Energy & Design (LEED) Rating System,” as more specifically set forth in the Project Manual and Project Specifications, Division I Section “LEED Requirement.” .. .. In failing to comply with this contractual requirement, Shaw Development will suffer damages in the amount of a Six Hundred Thirty-Five Thousand Dollar ($635,000.00) tax credit.”

But the only relevant contract provision provided,

“D. The Work consists of the following: .. .. 2. Project is designed to comply with a Silver Certification Level according to the U. S. Green Building Council’s Leadership in Energy & Design (LEED) Rating System, as specified in Division I Section LEED Requirements.”

Arguably, this was a fairly ordinary construction dispute that began as a mechanics lien action for failure to pay, but the settlement that resulted in the contractor completing the work and the developer executing a $54,000.00 promissory note in favor of the contractor, does not tell the rest of the story, nor does the fact Shaw Development later filed for Chapter 11 bankruptcy protection in response to a foreclosure action by the project’s lender.

Most people are not aware the project was ultimately LEED certified (based on a submittal by the architect), and the Maryland Energy Administration issued a $625,872.00 tax credit certificate. That green building tax credit was monetized and sold to 5 Maryland taxpayers. Unfortunately, most of the 23 residential units sold for less than half of the original asking price, so the project has not been a great financial success.

Southern Builders is instructive because, commenced as a mechanics lien action for failure to pay, this is how many construction disputes, including those that involve matters of green building, reach the courts. Those cases are then defended with counterclaims under any number of other causes of action from breach of contract and breach of warranty to negligence and misrepresentation including allegations that green building requirements have not been complied with.

Despite the hue and cry over the possibility of increased liability and the legal risk from green building, there is still not a single reported appellate court decision anywhere in the United States resolving green building disputes and differences.

And now you know the rest of the story.

Lawyers' Opinion Matters in Green Building Transactions

This law firm is increasingly called upon to give legal opinions that a green building is LEED certified, certifiable or otherwise ‘really’ a green building.

The purpose of a legal opinion given in a commercial real estate transaction is, most simply put, to provide some or all of the parties to the transaction with comfort regarding specified aspects of the transaction.  

One might ask why the need for an opinion from a lawyer that a building is green? While legal opinions are given in a variety of commercial contexts, they are increasingly being required as part of the due diligence by lenders, investors and purchasers of green buildings. The opinion we are most often asked to render is required by a lender.

The size and nature of a transaction may well affect the scope of the opinion requested and in larger traditional mortgage financing as well as green bond financing, lenders attribute increased value in the security being provided for loans when a building is LEED certified or the like, so they want to know the building is really green.

Opinion letters are often given by the borrower’s attorney at the request of and for the benefit of the lender. Traditionally, legal opinions in the context of loan transactions provide assurances that the loan documents are valid, binding and enforceable. Often legal opinions arising from the purchase of real estate involve assurance that the improvements exist accordance with applicable zoning, subdivision and other land use laws and regulations. Opinions are also given, from time to time, that a project complies with environmental laws. And now counsel to borrowers are being called upon to provide assurances to the parties that the real property and improvements which exist or are to be constructed have been designed and exist or will exist in accordance a stated green building standard, rating system or code.

Additionally, as increasing numbers of governments make green building mandatory or offer incentives for high performance buildings, purchasers and lenders alike want assurances that a building is in compliance with those green building laws. Tenants, who with greater frequency are required by law or policy to lease only green premises (from the federal government to multi family residential builders and colleges to retail builders) are a fast growing requester of opinions.  

From time to time we are called upon to render opinions to government agencies and entities and that work will only expand as green building requirements become inculcated in government.

We also receive requests to give opinions of counsel that a project is ICC 700 ‘certifiable’ or ASHRAE 189.1 compliant or complies with Enterprise Green Communities criteria; commonly associated with qualifying for governmental incentives. Committing that a project will be LEED certifiable versus certified by GBCI increases certainty and lowers risk.

And while we believe a lawyer should not be asked to be an additional warrantor of facts, the distinction between questions of law and fact may at time be difficult to separate. In giving an opinion, a lawyer is not and should not be thought to be providing a guaranty or insurance against loss.

There is no single accepted form of green building opinion. The Legal Opinions Committee of the American Bar Association does not yet provide standardized language in this area. And while a bit of inside baseball, the form of opinion this firm provides in modeled after a widely accepted zoning opinion form. 

Many of the opinions we give are actually in the role of “other counsel” or “special counsel” addressing only green building issues, and are relied upon by other and local counsel who are representing the building owner.

As a function of the fact that there are more green buildings being constructed and those building are being sold and financed, not to mention the explosive growth of green bonds, we will be giving increasing numbers of legal opinions that green buildings are ‘really’ green buildings.

LEED Bird Collision Deterrence to be Required in Highland Park

The City of Highland Park, Illinois, became the latest jurisdiction to consider bird friendly building regulations when on June 22, 2015 the City Council forwarded a proposal to the Plan Design Review Commission for comment prior to final approval by the Council.

Specifically, the City Council is proposing that bird friendly regulations be adopted for commercial, industrial and multi-family buildings and that they follow requirements set forth in the LEED NC-2009 SS Pilot Credit 55 Bird Collision Deterrence.  

The Highland Park City Code already requires bird friendly building construction for public buildings only.  That ordinance was approved in February 2011 and provides the City “shall, to the greatest extent practicable, incorporate bird-safe building materials and design features into the design of all newly-constructed buildings to be used primarily by the City ..” 

And there are other bird friendly building construction laws scattered across the country, although nearly all only regulate government funded building.

The State of Minnesota has since May 2013 required for all projects that receive general obligation bond funding from the State for new construction or major renovation apply the LEED SS Pilot Credit 55 standard. It is that same standard now being adopted in Highland Park.

There’s no nationwide repository of bird casualties or injuries, so estimating the scope of this is difficult. It is widely perceived that building collisions, and particularly collisions with windows, are a major threat to birds, with estimates swinging widely. A recent literature search published in The Condor, based on 23 studies, estimates that between 365 and 988 million birds are killed annually by window collisions in the U.S., with roughly 56% of mortality at buildings 4 to 11 stories, 44% at buildings 1 to 3 stories, and less than 1% at skyscrapers. But keep into in mind there are only about 21,000 buildings 12 stories or higher in the U.S. versus over 123 million 1 to 3 story buildings, so statistically only 24 birds might perish each year at any one skyscraper.

But at Duke University, the Fitzpatrick Center with a largely glass building envelope caused 85 bird deaths during 9 weeks.

It is suggested that green building programs, like LEED, encourage using natural light to reduce energy use and encourage green views resulting in the use of more glass. And windows are no friends to birds as we all know from the popular Windex television ad.

However, on that same Duke campus, the Penn Pavilion, almost entirely made of glass, was fitted with etched panes and saw only two collisions last year. With biomimicry windows can be made bird friendly by covering the glass with a UV reflective coatings or by etching or pigmenting a pattern into the glass, which birds can see while remaining virtually transparent to the human eye.

There has been a lot of media attention about the almost 200,000 square feet of glass at the proposed Vikings stadium and the supposed costs of using bird friendly strategies.

Arguably, the LEED SS Pilot Credit 55 is not first cost prohibitive. It seeks to “reduce bird injury and mortality from in-flight collisions with buildings” through compliance with one of several building façade options, one of the interior lighting options, one of the exterior lighting options, and a post construction monitoring plan. Key is developing a building façade design strategy to make the building visible to birds as a physical barrier and eliminate conditions, including lights that create confusing reflections to birds.

And while all of this is good, the window between the average house cat and the bird outside offers less protection than it may appear, with biomimicry features or not. A study in Nature Communications in 2013 reported house cats kill 1.4 billion to 3.7 billion birds per year, far more birds than perish annually due to collisions with windows. And the same study found that wind turbines across the U.S. killed 573,000 birds in 2013.

How many birds can be saved by LEED certified buildings is debatable, but in a post Fedrezzi era, the greatest expansion of the influence of LEED across the U.S. may be incorporating individual LEED credits (from water use reduction, to sound baffling and bird collision deterrence to ..) into local building requirements. 

Image Credit Temple University 2013

Government Ownership of Rain is Antithetical to Increased Potable Water

Against a backdrop of California experiencing the worst drought in its history and the U.S. Supreme Court having before it an interstate water dispute, where Florida seeks an equitable apportionment of the waters of the Chattahoochee and Flint Rivers over the claims of upstream Georgia, the issue of “who owns the rain” is of national importance.

Collecting rain and using it for a desired purpose on one’s own property should no longer violate laws. And the government should not take the rain falling on private property without just compensation.  

In point of fact, laws like the City of Tucson Ordinance 10597 of 2008 that require a minimum of 50% of water used for landscaping on new commercial properties be from collected rainwater on the site, may be the way of the future.

A simple and effective way to increase potable water supply and to decrease demand on stressed freshwater resources is collecting and using the rain allowing the free market to control water.

For millennia civilizations have recognized benefits of collecting the rain. Many ancient Roman homes had small cisterns to augment water supply from the aqueduct system. Rain barrels were once common across America both on farms and in towns. But centralized water infrastructure of the 20th century with the associated new laws to buttress it, the 19th century federal government claim that it controls all navigable water and unconstitutional state claims to land beneath watercourses, all made collecting rain illegal.

Water law in the western U.S. is governed by the “prior appropriation” doctrine. The details vary from state to state, but the first person to take a quantity from a water source for a beneficial use has the right to the continued use of that quantity of water. Water law in the eastern U.S. generally recognizes “riparian rights” where landowners whose property abuts a body of water have the right to make reasonable use of the water and if there is not enough water to satisfy all users, allotments are generally fixed in proportion to frontage on the water course. The difficulty under both schemes of water law was articulated by Utah Supreme Court Chief Justice Wolfe,

“All rain and snow water belongs to the public regardless of whose land it falls upon. Like all fugitive substances, it can belong to no one else except the public.” McNaughton v. Eaton, 1952 

Governments from Maryland to Colorado now regularly take the position that collecting precipitation is not legal, as a diversion of rainwater before it enters a water course. Maryland has the most stringent storm water (i.e., rain) regulation in the nation and even taxes the rain (by square foot). The Colorado legislature made clear it was illegal to capture rainwater off of one’s rooftop, as it infringed on the supply of senior water rights holders downstream, when in 2009 the state authorized certain limited exemptions approved by the State Engineer on residential roofs where no municipal water supply is provided.

However, collecting the rain has been legal in Utah since May 11, 2010, the effective date of Senate Bill 32 that provides “for the collection and use of precipitation without obtaining a water right” (storing up to 200 gallons above ground or 2,500 underground) after registering on the Division of Water Rights.

Today the City of Albuquerque Water Utilities Authority offers rebates of $1.50 per square foot for desert friendly landscaping and rebates of up to $150 on rain barrels, in spite of New Mexico law, including a policy of the State Engineer, “the collection of water … should not reduce the amount of runoff that would have occurred from the site in its natural, pre-development state.”

Collecting rain and using it for a desired purpose on one’s own property should no longer violate the law. Utah’s decriminalizing precipitation collection may be a model for the nation. Tucson may have gone too far in mandating rain collection for landscaping. But is it too farfetched to imagine government increasing potable water by not only making it legal but even offering incentives, like Albuquerque, for collecting rain? 

In the Name of Clean Water Millions of Acres are Proposed for Federal Control

The Environmental Protection Agency and the U.S. Department of the Army published a final rule on May 27, 2015, “clarifying” the scope of waters protected under the Clean Water Act. The rule is proposed to be effective 60 days after Federal Register publication.

EPA Administrator Gina McCarthy is quoted as saying the new rule will expand the scope of waters of the United States by “only about 3%” but that 3% represents millions of acres that are not today regulated.  Some commentators have suggested that depending upon the EPA’s application of the rule, the true number may be tens of millions of new acres of privately owned land being removed from productive use. 

For those uninitiated in the moving target clarifying what are “navigable waters of the United States,” defining where those waterways begin and end has since the enactment of the 1899 Rivers and Harbors Act been the subject of disputes between the federal government and land owners (predating the modern environmental movement).

The agencies proposed this rule in April, 2014, and solicited comment. This final rule was issued after over 1 million public comments on the proposal.

EPA detailed many of the changes in a series of industry-specific fact sheets. But the EPA commissioned report, Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence provides much of the technical basis for this rule.

The rule is intended to reduce the use of the 1987 Corps Wetland Delineation Manual which is used to make a case by case determination of whether or not a property is a jurisdictional water of the United States. Under this rule, all “tributaries” and all waters “adjacent” to traditional navigable waters (with adjacent now being broadly defined to include  “neighboring” which term is defined as being located within a minimum of 100 feet and within the 100 year floodplain to a maximum of 1,500 feet of the ordinary high water mark), always will be jurisdictional waters.

Among the other more controversial features of this rule is that EPA and the Corps are extending jurisdiction over “case-specific significant” regional water features, like coastal bays in the Delmarva peninsula and the Carolinas, and prairie potholes in Texas and throughout the central U.S. Some have suggested this all sounds like a lot more than a 3% expansion and none of this is navigable (e.g., actually passable by a boat) under any reasonable interpretation.

The House of Representatives voted two weeks ago to block the rule and a similar bill was voted out a Senate committee days later. And Congress may not get the last say as litigation is in the offing and the Supreme Court has twice since 2001 issued decisions on waters of the United States rules (albeit it with two different results).

It is regularly suggested this is not a good way to make environmental policy. It has been over 40 years since the Cuyahoga River caught fire and spurred the 1972 passage of the Clean Water Act. The law was intended to target big, point source pollution like sewage leaks and oil spills, and the continuing efforts to use it to ‘clarify’ a definition of navigable water from the 1899 Rivers and Harbors Act does not serve the potable water issues that the nation faces today.

And despite being published as a final rule, this proposal is a long way from being final. 

What LEED Credit is Almost Never Achieved?

One of the key features of the LEED rating systems is that, after satisfying minimum program requirements and prerequisites, project teams may select from the available compilation of LEED credits. Those options are key not only because there is no one homogenous building type but also because owners may have sustainable features they wish pursued.

But surprising to some, there is one LEED credit that stands out, by far, as the least earned. 

Accepting that LEED is no longer only new construction, and in an effort to compare apples with apples, this analysis looked at the LEED New Construction v2009 rating system.

To provide some context, credit NC v2009 EA c1 Optimize Energy Performance was the most often achieved credit, over 97% of the time, that is, on 3,927 of the 4,039 projects certified under this rating system. And such may not be surprising given the weight that LEED places on reducing energy use.

But, NC-2009 MR c6 Rapidly Renewable Materials was earned in just 2% of certified projects. It was achieved only 87 times in the 4,039 projects.

Again for more context, no other credit has achieved only in double digits. That is the next nearest credit was achieved more than a hundred times. 

So, what does NC-2009 MR c6 Rapidly Renewable Materials require,

“Use rapidly renewable building materials and products for 2.5% of the total value of all building materials and products used in the project, based on cost. Rapidly renewable building materials and products are made from agricultural products that are typically harvested within a 10-year or shorter cycle.”

The intent of the credit is noble,

“To reduce the use and depletion of finite raw materials and long-cycle renewable materials by replacing them with rapidly renewable materials.”

But even to the casual observer there is a disconnect between that idealistic goal and actual buildings because it is the rare building that contains any meaningful quantity of cotton, wool, wheatboard, strawboard, cork, corn, rubber or agrifiber.

There is no USGBC list of acceptable agricultural products, but be aware there is a USGBC issued LEED Interpretation #10057 that provides the plants must be "typically regenerated" within 10 years. The Interpretation is a bit cryptic, but farmed trees can be harvested within 10 years, however because harvesting trees in 10 years isn't typical, that lumber might not meet this standard.

Also, LEED Interpretation #2549 says that to count as rapidly renewable for the purposes of this credit, the material must be harvested without causing the animal harm, and the animal must be able to continue to regenerate the material. A good example is wool from a sheep.

Despite that the credit is almost never achieved, some have suggested it is important because materials credits play an ever increasing and controversial role in LEED v4. Not that this v2009 credit is a prequel to a v4 credit (it is not), but rather that USGBC staff weighs the pros and cons of rapidly renewable materials differently than the marketplace. For example, it has been suggested using corn as a plastic substitute in building is similar to the using corn in ethanol versus as food.

These credits for materials are complex, from transparency to life cycle analysis, as is now apparent in the reworking of the v4 materials credits. And maybe it is not so bad that corn has not become a significant building material (the role of corn in fuel is uncertain as EPA acknowledged last week that the statutory ethanol mandate can not be met)?

You can register LEED 2009 projects through October 31, 2016 and pursue MRc6 for years thereafter bettering the 2% statistic. But in lieu of corn, consider wool carpeting and agrifiber products like particle board and plywood (.. yes they qualify). 

HUD Adopts 2009 IECC (Not the 2012 or 2015 version) and Why You Care

The U.S. Department of Housing and Urban Development and the U.S. Department of Agriculture have determined, effective June 6, 2015, that adoption of the 2009 edition of the International Energy Conservation Code for single family homes and the 2007 edition of the American Society of Heating, Refrigerating and Air-conditioning Engineers 90.1 for multifamily buildings will not negatively affect the affordability and availability of HUD and USDA assisted housing. 

You care because this new minimum standard for energy efficiency in housing is widely seen as a benchmark driving green building and impacting significantly more units than LEED.

The two standards apply to different building types: the IECC applies to single family homes and low-rise multifamily buildings (up to three stories), while ASHRAE 90.1 applies to multifamily mid- or high-rise residential buildings (four or more stories)

On April 15, 2014, at 79 FR 21259, HUD and USDA announced in the Federal Register the Department of Energy's determination that the 2009 IECC and ASHRAE 90.1-2007 standards would improve energy efficiency (and yes, DOE has also already made that determination for the 2015  IECC but HUD and USDA are two versions of the code behind) triggering this second step in the federal government analysis.

For the 34 States and the District of Columbia that have already adopted the 2009 IECC or a stricter code, there will be little or no impact from HUD and USDA's adoption of this standard, since all housing in these states is already required to meet this standard as a result of state legislation. In the 16 states that haven’t adopted the IECC for single family homes, HUD and USDA announced the average incremental cost of going to the higher standard is $1,019 per unit.

For impacted HUD programs in the 38 states and the District of Columbia that have adopted ASHRAE 90.1-2007 or a higher standard, there will, by default, be no adverse affordability impacts of adopting this standard. For the remaining 12 states that have not yet adopted ASHRAE 90.1-2007, HUD and USDA estimate the incremental cost of ASHRAE 90.1-2007 compliance at under $500 per dwelling unit.

You also care because most significantly this will advance green building because HUD and USDA will accept certifications for a range of energy and green building standards that require energy efficiency levels that meet or exceed the 2009 IECC or ASHRAE 90.1-2007 as evidence of compliance with the standards. These include the ICC-700 National Green Building Standard, Enterprise Green Communities, ENERGY STAR Certified New Homes, ENERGY STAR Multifamily High Rise, LEED-NC, LEED-H, or LEED-H Midrise, and several regional or local green building standards, such as Earthcraft House, Earthcraft Multifamily, Earth Advantage New Homes, or GreenPoint Rated New Homes.

In addition, several states have adopted energy efficiency codes or standards that exceed the efficiency levels of the 2009 IECC and ASHRAE 90.1-2007, including, for example, the Title 24 California Energy Code in California, Focus on Energy in Wisconsin. And the 2015 IECC in Maryland. HUD and USDA will accept certifications of compliance with these state codes or standards as well as other state codes or standards for which credible third-party documentation exists that these exceed the 2009 IECC and ASHRAE 90.1-2007.

For all intents and purposes federally assisted housing must now be green. And while such is generally viewed as positive and as advancing green building (.. the big winner may be LEED), some worry about the implications for affordable housing and others about the homogenization of American housing by federal government efforts to save the planet. 

Microbeads Ban in Maryland will be more Efficacious than Others

Synthetic plastic microbeads are an effective mild abrasive ingredient appearing since the 1990s in personal care products including facial cleansers, shampoos, and toothpastes.

Environmental interests have sought to ban microbeads contending the plastic microbeads (that look like tiny colorful dots), cannot be treated by conventional wastewater treatment plants, resulting in their discharge into waterways and posing a threat to the ecosystem through ingestion by fish and other animals in the food chain. As a result microbeads arguably pose a potential human health threat when people consume fish and other animals that have ingested microbeads, as well as directly from the pollution of water supplies. 

Overall, the annual per-capita consumption of microbeads from cosmetics and personal care products in the United States is estimated at .0309 ounces per person per year, which adds up to over 300 tons of microbeads being discharged into the wastewater stream each year.

The Maryland legislature passed and last month Governor Larry Hogan signed into law House Bill 216, now enrolled as Chapter 409, prohibiting the manufacture of a personal care product containing “synthetic plastic microbeads,” beginning December 31, 2017, and the sale of such a product beginning December 31, 2018.

The bill defines “synthetic plastic microbeads” as any intentionally added solid plastic particle that is not biodegradable, less than five millimeters in size, and used in a rinse-off personal care product for exfoliation or cleansing purposes. Under the bill, a “personal care product” means a manufactured good or a component of a manufactured good that is intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body for purposes of cleansing, beautifying, promoting attractiveness, or altering appearance. A “personal care product” does not include a prescription drug. And the bill does not ban microbeads used in science research or fluid visualization and fluid flow analysis.

Illinois became the first state in June 2014 to ban the manufacture or sale of plastic microbeads effective 2018. Since then, Maine, New Jersey and Colorado have passed similar phased-in bans. Legislation is pending in several states, including California, New York, and Washington.

Some contend the bans should also cover even biodegradable microbeads.

But the Maryland law is progressive in responding to the evolving science by requiring the adoption of regulations that identify biodegradable guidelines for wastewater treatment plants and the state must periodically review those guidelines to ensure that the most scientifically effective methods are being used. Today the initial regulations are anticipated to authorize the use alternatives such as crushed seeds and nutshells; however, in the future innovative solutions may be considered, including polyhydroxyalkanoate, or PHA, a naturally occurring plastic like material produced by mushrooms.

Just 2 years ago Hayden Panettierre told us microbeads were chic in this commercial. Today, more than 3,000 consumer products contain plastic microbeads. And now several of the largest producers of personal care products containing microbeads have pledged to phase out microbeads from their products.

In the 80 years since the start of its commercial production, plastic has become integral to our way of life. Many of the desirable properties of plastic, that it is low cost, durable, and corrosion resistance, also contribute to the rate at which it is consumed, discarded and is accumulating in our environment. We recognize the threat when we see plastic six-pack rings entangling wildlife, but just because we cannot see micro plastic smaller than 5 millimeters does not mean that the over 300 tons discharged annually does not exist, and is not a threat that we must address. 

Photo credit 5 Gyres

What LEED Statistics Tell Us?

The U.S. Green Building Council’s LEED rating system dominates brand acceptance and market share in the business of green building and is a driver in the larger environmental industrial complex. So a review of LEED statistics can be telling, not only about the state of green building, but about trends and future opportunities. 

But as Benjamin Disraeli told us, “There are three types of lies -- lies, damn lies, and statistics.” So, to keep this short blog post simple but meaningful we are going to look only at a snapshot that was the  nonresidential projects that were LEED certified during the month of April 2015 as reported by GBIG.

During April 2015, 463 projects were certified comprising 59.4 million square feet.

That is, more than 1.2 million square feet were certified each day in April. While that is a very large number, it is the lightest month this year and on an annualized basis, Green Business Certification, Inc., is certifying more than 1.8 million square feet every day, which is an increase from the 1.7 million square feet per day average in 2014.

Of those certifications it is significant that greater than 30% were Existing Buildings projects and several were recertifications. LEED is clearly no longer only about new construction.

Also interesting is that only 17 of those projects, just over 1%, were identified as schools. Given that schools are the number one project use for LEED certified building, one might have expected that number to be larger.

Rating System

Projects Certified

Square Footage Certified

New Construction

160

20.9 million

Commercial Interiors

 65

3.5 million

Core and Shell

 53

16.9 million

Existing Buildings

143

16 million

Retail - Commercial Interiors

 16

161,774

Retail - New Construction

  7

41,094

Schools - New Construction

 17

1.6 million

Total:

463

59.4 million

Continuing a trend more projects were certified Gold than any other certification level. And those Gold projects were significantly larger than the average project.

With 160 projects achieving at Certified level that number is statistically similar to the 162 Gold projects. No one homogenous building type predominated and the projects were as varied as the Maui Hyatt Vacation Club to a Bank of America corporate center on Charlotte, NC, and a Kohl’s Department Store in Springfield, OH. More Wells Fargo bank branches were certified than any other single user in April and most were at the Certified level. And despite the dozens of Wells Fargo bank branches, Kohl’s certified more square footage than any other single owner in April (.. which is not surprising when considering at 3,866 square foot bank branch versus as 96,077 square foot department store).     

Certification Level

Projects Certified

Square Footage Certified

Certified

160

10 million

Silver

118

13.4 million

Gold

162

33.7 million

Platinum

  23

2.2 million

LEED is increasingly international and while 378 of the 463 April projects were located within the U.S., the remainder were scattered across the globe in 32 different countries. The largest number of those international certifications were in China with 15 projects totaling 5 million square feet. 10 projects were in Brazil, 7 were in Turkey and 6 each were certified in India and Germany. And there were single projects certified from the United Kingdom to Argentina and from Nigeria to Colombia.  

This snapshot from April makes clear that the state of LEED brand acceptance and market share is good and is growing.

Check out USGBC's LEED project directory for a look at LEED projects by state. And visit GBIG to analyze LEED trends and opportunities in the business of green building.

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An Arm and a Leg and the 2015 International Energy Conservation Code

The 2015 version of the International Energy Conservation Code is soon to be upon you.

Modern building codes are most often adopted by local government legislative bodies and as such vary from place to place. The IECC is in use or adopted in 47 states, the District of Columbia, the U.S. Virgin Islands, New York City and Puerto Rico. 

By way of background, the International Building Code, as published by the International Code Council establishes “the minimum requirements to safeguard the public health, safety and general welfare …” The ICC also developed the IECC, encouraging energy conservation through efficiency in design, mechanical systems, and lighting systems. An energy conservation code is a major expansion from the life safety mission of building codes. Many suggest that the IECC has had much more impact on high performance building than has LEED.  

The IECC 2009 is widely adopted across this country because a commitment to adopt it was a precondition to states receiving stimulus funds under the American Recovery and Reinvestment Act of 2009 from the federal government.

There is an IECC 2012, but its adoption has been slow because its energy efficient performance is about 30% higher than the 2009 code, which is a significant increase. More than half of the country is currently under the 2009 IECC. Now the IECC 2015, with 77 changes from the 2012 version, has been published and is ready to be adopted. It is published in a single volume with ASHRAE Standard 90.1-2013 Energy Standard for Buildings Except Low-Rise Residential Building.

On January 1, 2015, the State of Maryland became the first state to adopt the 2015 IECC with local government adoption and enforcement required throughout the state by July 1, 2015. 

In terms of overall energy impact, the 2015 IECC is only negligibly different than the 2012 version. It is, however, accepting that there is no one homogenous building type, a slightly more than 1% better energy impact for commercial building than the 2012 IECC.

Many are being heard to argue that the time, inconvenience and expense of implementing a new code with only a slightly more than 1% better energy impact is unwise.

A U.S. Department of Energy technical analysis of the 2015 version determined only about 6 of the 77 total changes actually increase energy savings. The vast majority, that is, over 60 of the changes require new materials and methods but are energy neutral and 3 arguable have a detrimental effect on energy savings.

But because the DOE has determined the revised code improves energy efficiency in residential buildings, even ever so modestly, states are statutorily required to certify that they have reviewed their residential building code regarding efficiency, and made a determination as to whether it is appropriate for such state to revise their code to meet or exceed the provisions of the successor code. This only applies to residential codes.

There is no doubt that, in large measure because of adoptions of energy codes, energy efficiency has increased significantly. With a goal of reducing energy use, energy codes are of great import to green building. Critics have, however, effectively questioned the efficacy of using a mandatory code, that is little known and rarely debated burdening real estate with addressing a single societal issue (without balancing matters of resilience, public safety, etc.), and pointing out that this all looks a lot like establishing a national energy standard for every building.

Whatever, your perspective on legislatively mandated continued reduction in building energy use, be aware that the 2015 version of the IECC, including the required changes in building systems and products and the associated increases in first costs, may soon be upon you.

Produced with Genetic Engineering

Only slightly less fun than a Dan Aykroyd and Jane Curtin Point Counterpoint on Saturday Night Live, is the fight over labeling food produced from a bioengineered organism is being waged in a Federal courtroom in Vermont. Given modern interstate commerce, we may all find all of our food labeled “produced with genetic engineering.”  

On April 27, 2015, Judge Christina Reiss of the U.S. District Court for the District of Vermont issued a preliminary opinion and order in a case where the Grocery Manufacturers Association, Snack Food Association, International Dairy Foods Association, and National Association of Manufacturers are challenging Vermont’s Act 120’s requirement that manufacturers and retailers identify whether raw and processed food sold in Vermont was produced in whole or in part through genetic engineering and which prohibits manufacturers from labeling or advertising genetic engineered foods as "natural," "naturally made," "naturally grown," "all natural," or "any words of similar import".

The Opinion and Order granted in part the State of Vermont’s motion to dismiss and denied the plaintiffs’ motion for a preliminary injunction. And while the media have largely reported that the Opinion mostly favored the State of Vermont and the positions of GMO labeling advocates, a review of the 86 page Opinion suggests matters are largely unsettled and this decision was the product of the heightened standards for motions to dismiss and preliminary injunctions.

Act 120 was signed on May 8, 2014 and will be enforceable effective July 1, 2016 requiring that "food [intended for human consumption] offered for sale by a retailer" .. "be labeled as produced entirely or in part from genetic engineering if it is a product: ( 1) offered for retail sale in Vermont; and (2) entirely or partially produced with genetic engineering." Genetic engineering is defined as "a process by which a food is produced from an organism or organisms in which the genetic material has been changed" .. 9 V.S.A. § 3043(a).

The Act requires that the affected food be labeled by manufacturers "with the clear and conspicuous words 'produced with genetic engineering."' 9 V.S.A. § 3043(b)(l). Packaged processed food must be labeled with the words: "'partially produced with genetic engineering,"' or "'may be produced with genetic engineering,"' or '"produced with genetic engineering."' 9 V.S.A. § 3043(b)(3).

Act 120 also prohibits manufacturers from using labeling, advertising, or signage indicating that a genetic engineered food product is "'natural,' 'naturally made,' 'naturally grown,' 'all natural,' or any words of similar import that would have a tendency to mislead a consumer." 9 V.S.A. § 3043(c). Act 120 does not define the term "natural" or the phrase "any words of similar import." Many commentators have suggested these provisions “natural” will not survive the court challenge.

The Act authorizes the Attorney General to issue regulations and those regulations were issued, confirming that Act 120 does not prohibit a person from disclaiming on a food's packaging that the FDA "does not consider food produced with genetic engineering to be materially different from other foods". Final Rule §121.02(c)(ii).

Maybe most telling from the Court’s Opinion is that it quotes the Vermont legislature’s finding that "that up to 80 percent of the processed foods sold in the United States" may contain ingredients produced from genetically engineered sources. So, we may all find all of our food labeled “may be produced with genetic engineering”.

This Vermont law must be considered against the reality that less than 20 years ago, in more than half the states, it was not legal to label organic or hormone free milk.

This blog rarely suggests that government regulation is the solution, but unless we all want to be regulated by the Vermont legislature’s piques on food labeling, either Congress needs to act on a uniform national voluntary standard for bioengineered organism labeling authorizing FDA enforcement or USDA needs to act itself to create a voluntary program through the Agriculture Marketing Service, much as exists for organic labeling today.

Photo © 2015 Genetic Literacy Project 

GBCI Changed its Name and You Need to Change Your Documents

GBCI, formerly known as the Green Building Certification Institute, has changed its name to Green Business Certification Inc. It will continue to be referred by the acronym GBCI.

GBCI administers project certifications and professional credentials within the U.S. Green Building Council’s LEED Green Building Rating System. USGBC describes GBCI as its “credentialing subsidiary.”  

In September of last year, USGBC announced that GBCI would also provide certification and credentialing services for the PEER standard for power systems. In October a similar announcement was made for the WELL building standard, measuring, certifying and monitoring features of the built environment that impact human health and well-being. And that same month USGBC announced that it had acquired the Global Real Estate Sustainability Benchmark (GRESB), an organization committed to assessing the sustainability performance of real estate portfolios around the globe. With these 3 nonprofit corporate mergers of effort, the mission of GBCI broadened from the time of its inception in 2007.

In response to that expanded mission, on February 23, 2015, the Green Building Certification Institute board of directors voted to approve “articles of amendment” for the nonprofit corporation changing the name of the entity to Green Business Certification Inc. Those articles of amendment were filed with the government of the District of Columbia on April 6, 2015 and were effective that date.

But the old name remains in statutes and contracts and more. From a corporateness perspective, the entity remains and all that has changed is the name.

Members of the environmental industrial complex that deal in matters of LEED should review their contracts and other documents and update them now. Statutes and government programs referencing LEED should be brought current. The operative language might be some variation of ..  

“a structure that has achieved, as certified by Green Business Certification Inc., [formerly known as the Green Building Certification Institute,] a [Silver] level or higher rating in the U.S. Green Building Council’s Leadership in Energy and Environmental Design (LEED) rating system”

[The text above is the language proposed to be substituted in Baltimore City’s existing green building law which requires all new construction and renovations be green, including allowing structures that are LEED Silver certified.]

Correctly referring to LEED certification is of paramount importance in legal opinions given in building acquisitions and financing. It can also be critical in contracts between owners and architects, owners and contractors, subcontractors and materialmen, and the like, where a properly drafted contract is the single best method of risk mitigation in green building. That contract language might be some variation of ..

“The parties expressly acknowledge that LEED certification is awarded by Green Business Certification Inc. (GBCI), an independent third party organization related to the U.S. Green Building Council, and may be dependent on matters beyond Consultant’s control, such as Owner's use and operation of the Project. Consultant will perform its services with professional skill and care but it cannot and does not warrant or guarantee that the Project will be awarded LEED certification or other third party approval.”

[The text above is from the general conditions of a consultant contract with an owner.]

GBCI has changed its name to Green Business Certification Inc. and it is time for you to consult with your green building attorney and change your contracts and other documents.

Congress Creates Tenant Star But Does Little Else

In a continued period of falling energy prices, for oil and natural gas as well as renewables, and in an era when energy use in the U.S. has not increased in decades (despite the increase in population), Congress passed an energy bill.

The Energy Efficiency Improvement Act of 2015, S. 535, a portion of this bill was formerly known as the Better Buildings Act of 2015, passed the House of Representatives last week and on April 23rd was presented to the President for signature. Senators Rob Portman, R-Ohio, and Jeanne Shaheen, D-New Hampshire have been working to get an energy efficiency bill passed for years and they have now succeeded, although this bill has no mandates and only requires the federal government (and no one else) to undertake some very modest, low cost, acts.  

Senate bill 535 requires the General Services Administration to develop and “publish” model leasing provisions to encourage building owners and tenants to use greater cost-effective energy efficiency and water efficiency measures in commercial buildings; and, develop policies and practices to implement the measures for the realty services provided by the GSA to agencies.

The bill amends the Energy Independence and Security Act of 2007 to require the Department of Energy to “study” the feasibility of improving energy efficiency in commercial buildings through the design and construction of spaces with high-performance energy efficiency measures.

This bill also amends the Energy Policy and Conservation Act to provide additional energy conservation standards for grid-enabled water heaters for use as part of an electric thermal storage or demand response program. Apparently the import of that is to exempt certain electric resistance water heaters used in demand response programs from pending DOE regulations.

Codifying the current practice, this legislation also requires a federal agency leasing space in a building without an Energy Star label to include in its lease provisions requirements that the space's energy efficiency be measured against a nationally-recognized benchmark. The agency must also meet certain energy consumption disclosure requirements or explain why it does not.

DOE is now required to maintain a database for storing and making available public energy-related information on commercial and multifamily buildings.

Arguably the most significant new program to come out of this bill is that, 

The Administrator of the Environmental Protection Agency, in consultation with the Secretary of Energy, shall develop a voluntary program within the Energy Star program established by section 324A of the Energy Policy and Conservation Act (42 U.S.C. 6294a), which may be known as Tenant Star, to promote energy efficiency in separate spaces leased by tenants or otherwise occupied within commercial buildings.”

Within Tenant Star, the EPA may develop a voluntary program to recognize commercial building owners and tenants that use high-performance energy efficiency measures in the design and construction of leased spaces.

Tenant Star will present business opportunities and may some day be a market driver in the commercial real estate sector. Such is close enough for government work.

Residential Green Building Increasingly Incentivized with Property Tax Credits

Recognizing that while commercial construction is increasing building green, but that green residential construction lags in market share, local governments are increasingly looking to enact voluntary incentives to drive residential green building.

At least 44 states and more than 400 local governments across the nation have enacted some form of green building legislation. Voluntary incentives offered by government include tax breaks, direct grants or loans, density bonuses, and advantages in processing approvals for green buildings. As a non-prescriptive, non-mandatory approach which does not burden owners of land with another mandate, this philosophy of advantaging green building is a real estate owner-friendly, results-oriented environmental incentive that may portend a future for broader environmental policy, going even beyond green building.  

But as would be expected from such a plethora of unrelated enactments, there is no widely accepted single incentive that owners report drives green building.

However, in the residential arena, developers and builders report that overwhelmingly the single government incentive that most helps drive green residential sales (single family and condominium units) is real property tax credits.  

Across the country, local governments are increasingly offering real property tax credits to incentivize residential green building.

The City of Cincinnati offers what is described as the most efficacious residential green building tax credits in the nation. Cincinnati offers property tax abatements for residential and commercial buildings constructed or renovated that are LEED certified. The original green building tax abatement ordinance was passed in 2006 and has been amended four times since, culminating in the current abatement law passed December 19, 2012 that includes the generous residential component.

For residential buildings Cincinnati makes available a 100% property tax abatement for 15 years (for new construction) or 10 years (for existing building retrofits) up to $275,000 LEED Certified buildings, $400,000 for LEED Silver buildings, and $562,000 for LEED Gold buildings. There is no value limitation on the tax abatement for structures that achieve LEED Platinum certification.

A 100% tax abatement for 15 years on a newly constructed LEED certified house is very generous. While precise statistics were nor readily available because the tax abatement is provided on buildings and not on individual units within a building, more than 500 LEED certified residential units have benefitted from the tax incentive.

Former Cincinnati Councilwoman Laure Quinlivan has been widely quoted saying the incentive is unique among others around the country for its generosity. She said the incentive was important to getting development deals to move forward. “We are a leader among sustainable cities because of our green building accomplishments," Quinlivan said.

With over 132 million housing units in the U.S., and more than a million new housing units constructed each year, there is a robust opportunity for green building. The dramatic strength of the housing sector would be further fueled by property tax credits that incentivize green building.

Image © Pasadena EcoHouse 2008