Is California Going to Ban Cows in the Name of Climate Change?

cows grazing

The California Environmental Protection Agency Air Resources Board has issued a “Proposed Short-Lived Climate Pollutant Reduction Strategy” that includes the penultimate statement,

California’s dairy and livestock industries account for roughly half of the State’s total methane emissions and about five percent of the State’s overall GHG emissions. About half of the emissions from the State’s 5.5 million total beef and dairy cows come from enteric fermentation (mostly belching), and the other half from manure management practices, primarily lagoon storage of flushed manure from milking cows.

So, with targets on the backs of cows, “for dairies, California will aim to reduce methane emissions .. by at least 20 percent in 2020, 50 percent in 2025, and 75 percent in 2030.”

One of the many problems with that aim is California dairy cows already “produce low enteric fermentation emissions per gallon of milk“ .. (they belch less) when compared to other U.S. cows. So, the goal of further reducing methane emissions, such that “a gallon of California milk might be the least GHG intensive in the world” also means that it will be among the most expensive milk in the world.

The Proposal acknowledges the additional costs and advocates unproven strategies like new “gut microbial interventions” that lab test show have the potential to reduce enteric fermentation emissions 30% without affecting milk production, but those genetically modified organisms don’t sound like organic milk.

There are other bad alternatives. Argentina’s INTA governmental research body has developed cow backpacks that trap the Methane they belch in order to turn it into renewable energy.

The New York Times ran a story, on December 14, 2008, entitled, “Eat Kangaroos To Fight Global Warming” .. admittedly of all the ideas articulated to combat climate change, George Wilson of the Australian Wildlife Services may have the least intuitive – eat more kangaroos! Kangaroos don’t produce Methane. But there is a problem. Despite that some consider kangaroo a specialty meat, the reaction has not been positive to Skippy on the menu.

Or possibly California could leave the cows alone and concentrate on more realistic matters, like why it took 112 days to plug the leak from the Aliso Canyon storage facility that spewed more than 97,000 metric tons of Methane into the Los Angeles air in what was arguable the single largest source of pollution in the State last year.

The Federal government is not targeting cows in its new rules released in May to cut Methane emissions from the oil and gas industry.

So why pick on dairy cows? This is not even a save the planet by eating less meat initiative. The root of this Proposal was an October 16, 2014 rulemaking petition filed with the Air Resources Board by the nonprofit Animal Legal Defense Fund seeking to have the State regulate greenhouse gas emissions from animal agriculture. From that Petition spewed this Proposal.

This fall, Board staff will present the final strategy, which many expect will cut in half Methane emissions from dairy operations. Nearly a third of California’s 1,400 dairies, have less than 500 milking cows and it is not clear how they will survive the new regulatory strategy; but then that is the overarching goal.

It may not be long before consumers will be smuggling organic milk into California from Nevada and Arizona.

Attend Greenbuild – The Best Way To Grow Your Green Building Business

Greenbuild 2015

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 Los Angeles from October 5 – 7.

I do not claim any particular business marketing prowess, but Greenbuild has been the number one source of new clients for my sustainability and green building law practice!

I have been attending Greenbuild on and off over 13 years. Last year, Greenbuild 2015 was in Washington DC, just down the road from the 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 which had only 450 people in attendance. While attendance is off a bit from the huge Greenbuild in Boston in 2008 with 27,995 attendees, last year dwarfed the first Greenbuild in 2002 when 4,189 people gathered in Austin.

There were 19,058 attendees last year with 96 countries represented. 23% of those attending were from architecture or engineering firms, 13% were contractors and builders, 10% were utilities and 5% 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 2015, it upheld its commitment to offsetting 100% of our emissions (including attendee travel) through the purchase of Green-e certified offsets in partnership with TerraPass.

Last year there were 548 exhibitors on the 144,300 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, I most enjoyed attending the session, EPDs: State of the Art and Advancement by Industry, where one of the presenters was Heather Dylla, Director of Sustainable Engineering for the National Asphalt Pavement Association.

The 2015 demographics are the most recent proof that Greenbuild is the largest green building gathering each year and the best opportunity for networking among “green people.”

Greenbuild 2016 in LA will be “the” target rich environment for green people this year. It is your chance to meet incoming USGBC CEO Mahesh Ramanujam, the man to know in the post Fedrezzi era. And it all promises to be lots of fun. So register today.

It is only 50 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 the number one source of new clients for my law practice for more than a decade!

Having fun is part of the Greenbuild experience. As a reader of this blog, if you email me before Greenbuild, I will buy you a drink or a cup of coffee at an LA watering hole. (I made a similar offer last year and had a great time meeting a lot of very fun people drinks in DC.) I hope to see you in LA on October 5.

Zika Virus and LEED Buildings – Redux

mosquito cdc dead

Given the large number of inquiries we have responded to about Zika, including about liability for building owners, this is a repost of an updated version of my February blog post on the subject.

Owners of LEED buildings should evaluate the need to apply pesticides, killing mosquitoes to protect occupants from the Zika virus.

Zika virus has swept through South and Central America, with more than a million suspected cases during the past few months, along with a substantial increase in reporting of infants born with microcephaly.

Although there needs to be a good deal of research to define critical aspects of infection, Zika is spread mostly by the bite of an infected aedes species mosquito. Unfortunately, mosquito control efforts have failed to curtail the spread of many similar pathogens, including dengue and chikungunya viruses, which are carried by the same aedes species and are spreading in the same countries currently affected by the Zika virus.

As of August 3, 2016, the Centers for Disease Control and Prevention advises there are only 6 confirmed “locally acquired mosquito born cases” of Zika, 16 sexually transmitted cases, and 1,818 travel associated cases in the continental U.S., there are 5,460 locally acquired cases in Puerto Rico, and those numbers will grow significantly because the mosquitoes that can carry Zika are found in increasing areas of the U.S. This public health crisis is not limited to the Wynwood neighborhood in Miami.

While removing standing water is useful and window screens have some limited productiveness, the only truly efficacious control of the deadliest creatures on the planet is the application of mosquito killing pesticides. My recent blog post, Wipe Out Zika Virus Carrying Mosquitoes with Pesticides describes three categories of pesticides for mosquito control in the curtilage of buildings.

With respect to the likelihood of legal liability associated with the application of insecticides or failure to apply, it is the failure to act properly that may have the greater likelihood for landlord liability. Admittedly the proximate cause related to a recognizable infection tying a particular mosquito bite to a specific building is remote. But where a building has an insect management plan, the negligent implementation of a plan may arguably give rise to liability. The law varies from state to state, but in an analogous situation most jurisdictions can find liability against a residential landlord in the event of a dog bite where there is a ‘no dog’ policy at the premises that is not enforced by that landlord. Similarly landlords are being increasingly held liable for injury arising from bedbug infestations.

Many LEED buildings have insect management plans (.. while most non LEED buildings do not). In fact, 53% of LEED EBOM-2009 certified existing buildings have achieved the SSc3: Integrated Pest Management, Erosion Control, and Landscape Management credit. Those 1595 of the 2971 LEED existing building certified projects in that rating system achieved this credit that requires a written plan to manage insects.

The intent of the LEED credit is “to preserve ecological integrity, enhance natural diversity and protect wildlife ..”.

The credit requires outdoor Integrated Pest Management (IPM), defined as “managing outdoor pests (plants, fungi, insects, and/or animals) in a way that protects human health and the surrounding environment and that improves economic returns through the most effective, least-risk option. IPM calls for the use of least toxic chemical pesticides, minimum use of the chemicals, use only in targeted locations, and use only for targeted species.”

The text of the LEED credit requires universal notification to all building occupants not less than 72 hours before a pesticide is applied in a building or on surrounding grounds under normal conditions, and within 24 hours after application of a pesticide in emergency conditions.

It is not that a LEED certified building has an increased likelihood of liability arising from Zika, but rather it is that any building owner with an announced insect management plan may trigger liability.

Across most of U.S., building owners with insect management plans can mitigate risk by making certain those plans are appropriate and correctly implemented given what we know about Zika and other mosquito borne illnesses, considering the application of insecticides, including applying pesticides to kill mosquitoes.

Moreover, when even E. O. Wilson, the well known evolutionary biologist and a champion of biodiversity, argues that the aedes mosquito should be targeted, its DNA preserved and the species wiped out, building owners should do the right thing in protecting their occupants by applying mosquito killing pesticides.

Historic Church Appeals to Higher Authority in Solar Dispute

First Parish ee

The First Parish in Bedford, Unitarian Universalist church has appealed from a decision of the Historic District Commission of the Town of Bedford that denied First Parish’s application for a certificate of appropriateness to install solar panels on its Meetinghouse roof.

The complaint filed Superior Court for the County of Middlesex, Commonwealth of Massachusetts claims the decision exceeds the authority of the Commission, was legally untenable, unreasonable, arbitrary and capricious, and violated the rights of the members of First Parish to the free exercise of their religious beliefs under Article II of the Massachusetts Declaration of Rights and the First Amendment of the U.S. Constitution.

First Parish was established, and its first Meetinghouse was erected, in 1729, shortly after incorporation of the Town of Bedford. The original Meetinghouse was badly damaged in the “great gale” of September 1815, and was replaced by the present Meetinghouse in 1817. The 1817 Meetinghouse was built in the Federalist style based upon a design by noted American architect Asher Benjamin. Portions of the First Parish Meetinghouse maintain their historic appearance, but others do not.

Over the years, as technology has advanced, building codes, construction materials and standards, and the needs of First Parish relative to the Meetinghouse have evolved, there have been multiple alterations to the original design and structure of the Meetinghouse that would be utterly unrecognizable to a parishioner of the church at the time of its construction in 1817.

The current gray asphalt roof shingles on the Meetinghouse have no historical significance. Until 1954 the roof shingles were wooden. In 1991 the Commission approved replacing the shingles on the cupola dome with “lead-coated copper”. In 1999 the Commission approved replacing wooden louvers in the bell tower with fiberglass louvers. And in 2001 the Commission approved replacing wooden louvers in the steeple with fiberglass louvers to match those in the cupola.

Early followers of the Unitarian church included seminal figures of the New England transcendentalist movement, such as Henry David Thoreau and Ralph Waldo Emerson.

In modem times, adherence to the church’s Seven Principles necessarily has involved confronting and mitigating evolving environmental threats, including climate change. As such, Unitarian Universalists across the nation believe that their religion necessarily involves taking action on a personal, congregational and community level to confront and mitigate mankind’s role in causing and exacerbating global warming.

First Parish applied to the Historic Commission for a certificate of appropriateness to construct the solar panels on its roof, and the Commission began the public hearing on April 6, 2016. In a decision that is being widely criticized as what is worst about allowing preservation to trump environmental stewardship, the Commission ultimately denied the application on June 1, 2016.

The complaint filed on June 27, 2016 says the Commission decision was unreasonable, whimsical, arbitrary and capricious in multiple respects including that no member of the public opposed the First Parish solar panel proposal and the evidence supporting the proposal was overwhelming.

The government’s responsive pleading is not due for some weeks, but most commentators expect the nearly 300 year old church of Henry David Thoreau will prevail and the court will annul the decision of the Historic District Commission.

HUD Jumpstarts PACE Financing for Homes

Residential PACE 000

Last week the U.S. Department of Housing and Urban Development and the Department of Veterans Affairs released new guidance, changing their previous positions, now widely allowing residential Property Assessed Clean Energy (PACE) financing.

With the guidance, PACE financing, where payments for energy efficiency, water conservation and renewable energy improvements to real estate are made through a building owner’s property tax bill without upfront cash from the owner could be bigger than anything in U.S. real estate since the invention of the glass window.

PACE state enabling statutes generally authorize local governments to work with private sector lenders to provide upfront low interest financing to property owners for qualified projects (e.g., HVAC system upgrades, photovoltaic systems, cool roofs, etc.), and to collect the repayment through annual assessments on the property’s real estate tax bill.  The term of PACE financing can be extended up to 20 years, often resulting in utility and other cost savings that exceed the amount of the assessment payment.

The concept is not new, but nationally, residential PACE programs generally have been put on hold or foregone as a result of concerns of HUD and the Federal Home Loan Banks, that issued a directive in February 2011 to refrain from purchasing mortgage loans secured by properties with outstanding first lien PACE obligations.

There were not similar concerns expressed about commercial loans. However, the extent to which similar concerns apply to multi family commercial mortgages was not previously resolved. And the uncertainty has resulted in modest commercial PACE programs in only 9 states and next to no residential programs actively running. A directory of state and local PACE laws in available here.

Residential PACE offer a host of benefits depending upon the program design, including: removing the barrier of a large upfront cash outlay by the property owner; allowing 100% financing of improvements in amounts over loan value ratios available in the marketplace, including without disturbing existing mortgage financing; underwriting tied to the property and improvements and not individual creditworthiness; repayment over a long period of time (often up to 20 years); low interest rates resulting from high security of repayment; reduced utility bills that can offset the payments; the obligation to repay runs with the property and not the owner; the improved properties have an increased value, benefiting both the owner and the property taxing authority; the owner may be eligible to take advantage of federal, state and local tax incentives; local government can facilitate the program with no direct debt obligation; and more.

Under this July 19, 2014 guidance in the event of a default on a residential property PACE loan, the liability is a property tax lien collected by the local government with the priority associated with other real property tax liens. Sort of. The “grand compromise” announced in the guidance is actually a restatement of what exists in current commercial PACE programs. The guidance describes it as,

the property may only become subject to an enforceable claim (i.e., a lien) that is superior to the FHA-insured mortgage for delinquent regularly scheduled PACE special assessment payments. The property shall not be subject to an enforceable claim (i.e., lien) superior to the FHA-insured mortgage for the full outstanding PACE obligation at any time (i.e., through acceleration of the full obligation.)

Which, in Federal government speak, means only the dollar amount of delinquent PACE payments take priority over existing mortgages, not the full amount of the PACE loan. Again, this would be a big deal except for the fact that most State commercial PACE programs are already structured this way.

What is huge is that the HUD and VA block is now lifted on residential PACE financing for energy efficiency, water conservation and renewable energy improvements to homes.

PACE loans can provide the capital to green the existing building stock. This change in Federal policy can jumpstart green building in the U.S.

Existing state programs will have to be reviewed to see if new legislation is required; it may not in many states where there are never implemented programs on the books. And local governments will need to adopt and implement residential programs, including attracting lenders to their jurisdiction. There will be a lot of competition in this space and well drafted local government legislation will be key to the efficacy of PACE programs.

PACE programs are good for the planet and good for improving the housing stock. This dramatic shift in Federal policy will result in significantly more PACE loans, including residential PACE loans across the country.

GMO Labels Coming to your Supermarket

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On the last day before leaving on a seven week recess, this past Thursday Congress enacted The Safe and Accurate Food Labeling Act of 2015 requiring the U.S. Department of Agriculture to regulate the labeling of bioengineered foods (often described as genetically modified foods or GMOs).

The bill trumps the Vermont GMO labeling law that went into effect July 1st (.. who says Congress cannot act swiftly in a bipartisan way) and forestalls a hodgepodge of different state GMO laws being considered in at least 14 states.

Specifically the bill amends the Agricultural Marketing Act of 1946 to require the Secretary of Agriculture to establish a national disclosure standard for bioengineered foods.

In the parlance of Congressional rules of order, some will find it interesting that as amended by the Senate on July 7, the legislative vehicle for this measure concerning bioengineered food disclosure, was a vote on the motion to concur in the House amendment to S.764, with a Senate amendment (.. that amendment being the entire text of the GMO bill).

But what is truly interesting is the definition of what requires a label under the new law. Bioengineering with respect to a food, is a food “that contains genetic material that has been modified through in vitro recombinant deoxyribonucleic acid (DNA) techniques; and for which the modification could not otherwise be obtained through conventional breeding or found in nature.” The FDA had expressed concern in its technical comments, that that definition of bioengineering was narrow and ambiguous, and could exempt many foods from GMO sources, but that could be cured at the discretion of the Agriculture Secretary.

And all of this is a big deal because, by many estimates, more than 80% of processed foods in U.S. stores contain at least one ingredient made with GMO crops. By way of example, more than 90% of cheese in the U.S. is made with genetically engineered rennet.

While a limited amount of food is already labeled for sale under the now superseded Vermont law, we are already meeting with clients about this nationwide requirement that “not later than 2 years after the date of enactment of this subtitle, the Secretary shall establish a national mandatory bioengineered food disclosure standard.”

But even the disclosure standard (i.e., what the label must say) has been controversial and under the law, food manufactures have a choice of placing a text statement or symbol directly on the food packaging itself indicating GMO ingredients, or alternatively, can include a digital QR code that customers could scan with their smartphone to learn about GMO ingredients. Smaller food producers also have a fourth option of offering a phone number or URL on the package that consumers can access for information about GMO ingredients.

It is suggested there is no rational basis for this new law with the broad scientific consensus that gene editing in a laboratory is not more hazardous than modifications through traditional breeding. A report by the National Academies of Sciences, Engineering and Medicine, released in May, said there is no substantiated evidence that GMO crops have sickened people or harmed the environment.

Just two weeks ago, more than 100 Nobel laureates signed a letter urging Greenpeace to end its opposition to GMOs, including asking Greenpeace to cease its efforts to block introduction of a genetically engineered strain of Golden Rice that would reduce Vitamin A deficiencies causing blindness and death in children in the developing world.

There were no state troopers at the Vermont border last week inspecting food packages for GMO labels. And with this federal law the U.S. will not have a patchwork of different State or local laws banning GMO food products or requiring GMO labels. Whether, the good, the ugly, the bad (.. the title of my favorite spaghetti Western) or some other attribute associated with this Congressional act is your pleasure, GMO labels are coming to your supermarket.

Miami Beach’s New Green Building Tax

Miami Beach Sign

Some years ago an ordinance enacted by the City of Miami Beach received accolades across the globe when it protected endangered sea turtles that nest on the beaches of Miami Beach, by “restricting artificial lighting and other activities that disorient turtle hatchlings, causing them to crawl toward land rather than toward the ocean.”

However, a recent enactment by the City of Miami Beach is not being so widely applauded. On February 10, 2016, the City Commission voted unanimously to adopt the Sustainability and Resiliency ordinance which imposes a new tax for the failure to achieve LEED Gold certification or Living Building Challenge certification on new constructions over 7,000 square feet or ground floor additions to existing structures that encompass over 10,000 square feet of additional floor area.

In 2015, 64 permits were issued for buildings over 7,000 square feet. Apparently none of those projects are today registered with GBCI as pursuing or having achieved a LEED Gold certification.

The new law requires the payment of a Sustainability Fee prior to obtaining a Temporary Certificate of Occupancy, Certificate of Occupancy, or Certificate of Completion.  This fee is set as 5% of the construction valuation. If there is a failure to obtain any level of LEED certification, the fee is not refunded. A project that is LEED Certified receives a refund of 50% of the fee paid. A project that is certified LEED Silver receives a refund of 66% of the fee paid. And projects that are certified LEED Gold or Platinum or are Living Building Challenge certified received a 100% refund of the fee paid.

A builder has up to two years to obtain a full or partial refund of the fee depending on the level of green building certification achieved. Earned fees in the Sustainability and Resiliency Fund do not revert to the general fund, but rather are to be utilized to provide public improvements that increase sustainability and resiliency in the City.

The new law is effective for all projects that apply for review after April 1, 2016, but as of July 8, 2016 the City has yet to collect the first dollar of the Sustainability Fee. Such is likely explained because the law does not apply to developments that have an approved order from the Planning Board or have been issued a building permit process number or submitted a complete application for hearing prior to the February 10 enactment date.

Beyond that this enactment is nothing more than a green building impact fee in an effort to create a new source for revenue for government capital projects, many believe that a voluntary, non mandatory approach to environmental protection is the best hope for stewardship of our planet; hence the broad brand and wide market share acceptance of LEED. Many are suggesting that burdening owners of terra firma with a ‘special’ green building impact fee with the revenue being used to address the larger public policy matters of sustainability and resiliency with improvements to government owned land, is wrong and will not be efficacious.

Moreover, imposing a new tax on the failure of a landowner constructing a building to obtain a third party green building certification (while obviously not in the same order of magnitude as the penalty of death imposed by the Code of Hammurabi for failure to construct a building properly) also raises the very real issue of how efficacious that sustainable project will be when the owner is simply pursuing a number of points to avoid imposition of the impact fee.

Supreme Court Decision is Good for Green Globes

GG e

The recent unanimous decision of the U.S. Supreme Court in Kingdomware Technologies, Inc. v. United States, is a win for small businesses and very good for those that work on Green Globes projects.

In an effort to encourage small businesses, Congress has mandated that federal agencies restrict competition for some federal contracts.  The Small Business Act requires many federal agencies, including the Department of Veterans Affairs, to set aside contracts to be awarded to small businesses.

Kingdomware, a Maryland veteran owned small business, unsuccessfully vied for a federal contract from the VA to provide emergency notification services. Kingdomware sued, arguing that the VA violated federal law providing that it “shall award” contracts to veteran owned small businesses when there is a “reasonable expectation” that two or more such businesses will bid for the contract at “a fair and reasonable price that offers best value to the United States.” This provision is known as the Rule of Two.

The Supreme Court, in an opinion authored by Justice Thomas, held that the provision is mandatory, not discretionary. Its text requires the VA to apply the Rule of Two to all contracting determinations and to award contracts to veteran owned and other small businesses.

Among the significant beneficiaries of this Supreme Court decision will be the many small businesses involved with Green Globes green building assessment and certification system.

The Green Building Initiative has completed 537 assessments for the VA under both Green Globes and Guiding Principles compliance assessment programs, more than for any other federal department or agency.

The relationship began in 2009 when GBI partnered with the VA to assess buildings on 21 campuses including 21 hospitals.  From the experience on the hospital assessments, GBI developed Green Globes for Existing Buildings Healthcare, which specializes in healthcare buildings with licensed inpatient beds.

In 2011, GBI worked with the VA to develop the first assessment program for existing buildings to assist federal agencies in measuring compliance to the Guiding Principles For Sustainable Federal Buildings.

Since the initial assessments in 2009, GBI completed an additional 460 assessments of 279 unique buildings resulting in 206 certifications under Green Globes programs and 254 certifications under Guiding Principles compliance programs.

And the assessments and certifications are not limited to businesses that do work on hospitals, they also include medical offices and outpatient clinics, pharmacies, research laboratories, chapel, childcare facilities, firehouses, food service spaces, laundries, libraries, gyms, auditoriums, and many more opportunities.

The large number of small businesses that predominate the environmental industrial complex, many of which have a role in projects using Green Globes on VA buildings will be winners from the Supreme Court decision. Not only does the VA today operate the nation’s largest health care system, but as the Department strives for further improvements in performance, there will be much work done to VA facilities.

Moreover, what is good for Green Globes is good for green building, including given that much of the VA efforts have involved greening existing buildings.

It is only slightly irreverent to conclude that the Supreme Court decision in Kingdomware will be the proximate cause of more and additional green building, .. that will ultimately save the planet.

You Need to Review a SITES Scorecard, Now

SITES

SITES is a sustainable landscape rating system.

SITES is modeled after the LEED green building rating system. And while it is a standalone tool for measuring landscape sustainability, in June 2015, Green Business Certification Inc., the USGBC associated certification body for LEED, announced it had acquired the exclusive rights to the SITES rating system, its publications and trademarks.

The well regarded material on which the SITES v2 rating system (there actually was no version 1, but there was a multi-year pilot) is based was developed by the American Society of Landscape Architects, The Lady Bird Johnson Wildflower Center at The University of Texas at Austin, and the United States Botanic Garden.

Of course development of SITES was a collaborative effort by the developers beginning in 2006 except for when in 2013, in an all-out brawl ASLA filed a lawsuit over the ownership of the trademark for the SITES against the Lady Bird Johnson Wildlife Center. The litigation was ultimately resolved and was in the end little more than a distraction that delayed the release of version 2.

While the lawsuit revealed the founding organizations did not have a written agreement among themselves to protect their valuable intellectual property, they have had a multi-year written agreement and close working relationship with USGBC.

Almost half of the prerequisites and credits in SITES are based in part on credits in LEED NC or LEED ND, and some of the SITES Guidelines and Performance Benchmarks 2009 have been incorporated into LEED v4. GBCI will have to find a consensus based process for updating the now somewhat dated SITES v2.

SITES v2 is a voluntary set of guidelines and performance benchmarks to assess the planning, design, construction, and maintenance of sustainable landscapes. SITES has lofty goals including creating regenerative systems and fostering resiliency, and it is ensuring future resource supply and mitigating climate change that sound good, but are concerning in terms of its broader goal of market transformation when only 46 projects have achieved SITES certification since 2006.

Actually reading the SITES v2 scorecard and accompanying rating system is an ideal way to understand why the system’s methodology is so well thought if by design professionals.

SITES v2 provides four certification levels. Projects that receive SITES Certification through GBCI have achieved the requirements within the 10 sections containing 18 prerequisites and accumulated a certain number of points, out of a total of 200 potential points offered by the 48 credits. All credits are optional but not all will apply to every project.

Certification is open for all project types located on sites with or without buildings, including “open spaces and parks, commercial and residential sites, campuses, infrastructure projects, and industrial sites” for new development and major redevelopment, but arguably only on sites that have significant area for landscaping, thus excluding most urban sites. Given these projects (.. maybe not the ‘open spaces’) could be LEED certified, is a project owner pursuing SITES a bug in search of a windshield?

SITES will likely get a boost because on April 13, 2016, the U.S. General Services Administration announced its 2016 version of the Facilities Standards provides,

Through integrative design and application of sustainable design principles, all new construction projects and substantial renovations with adequate scope must achieve, at a minimum, a SITES silver rating through the Green Building Rating System of the U.S. Green Building Council. GSA’s use of the SITES framework allows our land-based projects to better protect ecosystems and enhance the mosaic of benefits they continuously provide our communities, such as climate regulation, carbon storage and flood mitigation.

The larger influence will be that SITES credits are now being incorporated into and influencing the next version of the ASHRAE 189.1 green building standard that is the announced precursor to the next version of the International Green Construction Code, all that will provide the technical basis of the next version of LEED.

So, while it is unlikely you will find yourself working on a SITES project (.. there are simply too few of them), because of the deep and widespread influence SITES will have on the next generation of green building standards, codes and rating systems, you should familiarize yourself with the scorecard and accompanying version of the rating system.

Top 5 Things You Need to Know about the TSCA Overhaul

Toxic

On June 7, by a voice vote of the Unites State Senate agreeing to changes approved by the House of Representatives on May 24 (voting 403 for and 12 against), Congress has passed the “TSCA Modernization Act of 2015” that will amend the Toxic Substances Control Act, sending the 66 page bill to the President for his signature. The President is expected to sign the bill this week.

HR 2576 greatly expands the ability of the Environmental Protection Agency to evaluate and regulate chemicals.

TSCA was enacted in 1976 to protect the environment and the public’s health against risks posed by chemicals in materials in commerce. Forty years later, there is general agreement that the law has not kept pace with the marketplace including a patchwork of state laws that were effectively trumping this Federal law, and the field was made more complicated by non governmental programs like the LEED green building rating system that incorporates Materials & Resources credits including building product and material ingredient disclosure and optimization.

Some perspective is likely appropriate because of the 85,000 chemicals on the TSCA inventory there were only five existing chemicals in the stream of commerce before TSCA went into effect that EPA deemed harmful and just four new chemicals that came to market after 1976 that have since been banned under the existing law.

It has been suggested that the bipartisan effort by Congress acting on this substantive legislative bill is the big news in and of itself. And while compromise on Capitol Hill is a big deal, this bill greatly expands the authority of EPA and will have implications not just for the chemical manufacturers, processors and importers, as TSCA had in the past, but now also for many more businesses. The top five takeaways for business are:

  1. The scope of the law is widened with a new safety standard providing “that the relevant chemical substance or significant new use is not likely to present unreasonable risk of injury to health of the community without consideration of costs or other non-risk factors.” The decades old cost benefit analysis is now altered throughout TSCA where “unreasonable risk” was used that it now excludes consideration of costs and other nonrisk factors, either by striking “unreasonable” or adding “without taking into account cost or other non-risk factors.”
  2. All existing chemicals will now be subject to possible future regulation in a bifurcated process. The first step will consist of an EPA risk evaluation and a second step for risk management. Risk evaluations are to be conducted on each chemical EPA designates as a high-priority substance. Six months after enactment, EPA must be conducting risk evaluations for 10 chemicals drawn from its Work Plan. The new law sets a 3 year deadline for all risk evaluations.
  3. With new chemicals, today a business is generally able to start producing a new chemical at the end of a 90 day review period, unless EPA finds the chemical “may present an unreasonable risk.” In the future EPA must review and affirmatively make a risk determination for all new chemicals. And if EPA determines that a new chemical presents an unreasonable risk or EPA lacks sufficient information to make a reasoned evaluation or the chemical may present an unreasonable risk or is produced in large amounts and results in large releases or exposures, EPA must impose restrictions to the extent necessary to protect against any such risk.
  4. Preempting state laws, that vary across the country, with a single Federal edict (whether good or not so good) was the reason that business supported amending TSCA. And while the preemption provisions are complex, the bill largely accomplishes that. The bill’s preemption applies to state restrictions on a chemical, but not to requirements for reporting, monitoring or disclosure. And most significantly, a state cannot now prohibit all use of a chemical in the state, except via co enforcement with EPA or getting a waiver from EPA. State actions taken before August 1, 2015, or taken under laws in effect on August 31, 2003, are exempted from preemption. And the bill preserves state and private party rights, causes of actions, and remedies from being preempted by EPA.
  5. Costs to some business will be significant. Today EPA can only charge fees to cover testing requirements for new chemicals, but now EPA may collect fees for both new and existing chemicals, as well as those designated as high-priority. But the dollars paid to EPA will be small when compared to the legal fees and hard science costs to businesses in compliance. And there is uncertainty associated with this much bigger regulation that impacts many more businesses, including by way of example, costs across industries from the probable banning of asbestos, as is anticipated under this new law.

Also significantly, this new enactment should portend revisions to LEED materials credits (including LEED’s use of EPDs and HPDs that do not include toxicity and as such are inconsistent with this new law) and other nongovernmental standards pegged to federal laws.

This law firm in concert with our team of biologists and chemists maximizing our hard science knowledge have been and continue to work with a broad breadth of business interests to determine how they will be impacted by this sweeping new TSCA. If we can assist your business in appreciating and taking advantage of federal regulation of chemicals, do not hesitate to give Stuart Kaplow a call.

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