You Need to Review a SITES Scorecard, Now


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


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.

Federal Government Proposes Greenhouse Gas Disclosures from Certain Vendors

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The Department of Defense, General Services Administration, and National Aeronautics and Space Administration are proposing to amend the Federal Acquisition Regulation which will require select government vendors, from landlords to defense contractors, to indicate if and where they publicly disclose greenhouse gas emissions.

In 2015, the Obama Administration announced a new target to reduce Federal government greenhouse gas emissions by 40 percent below 2008 levels by 2025.

In response, DoD, GSA, and NASA are now proposing to revise the FAR to add an annual representation for vendors to indicate if and where they publicly disclose GHG emissions and GHG reduction goals or targets. This representation would be mandatory for vendors who received $7.5 million or more in Federal contract awards in the preceding fiscal year. The representation would be voluntary for all other vendors.

Additionally, in furtherance of E.O. 13653, “Preparing the United States for the Impacts of Climate Change” DoD, GSA, and NASA are by this proposed regulation considering the development of means and methods to enable agencies to evaluate and reduce climate change related risks to, and vulnerabilities in, agency operations and missions in both the short and long term, with respect to agency suppliers, supply chain, real property investments, and capital equipment purchases. This consideration reflects growing Executive Branch interest in operational and supply chain risks associated with climate change facing agency suppliers and steps those suppliers are taking to identify and manage those risks.

This proposed regulation is at best overreaching when this Executive Branch action, without legislative authority, attempts to ‘draft’ on the fact that Federal vendors that are public companies are already subject to requirements to disclose material risks associated with climate change, per Securities and Exchange Commission Interpretation “Commission Guidance Regarding Disclosure Related to Climate Change.” There is simply no material connection between that existing SEC disclosure requirement and this Executive Branch proposed GHG test.

Moreover, this law firm works with a broad breadth or public companies and their counsel, and most undertaking the SEC analysis determine there are no material risks associated with climate change, resulting in no disclosures and certainly no disclosures of GHG emissions. It is in this wrong context that DOD, GSA, and NASA are purportedly considering by this regulation approaches to make disclosures of climate change risk analyses from government suppliers available to agencies (.. but this proposed disclosure regulation is not about analysis of climate change risks?).

The existing SEC climate change disclosures require significant work and depending upon the industry can be quite onerous and expensive. Such should also be anticipated for GHG specific emissions disclosures. Not to mention that adding a new prerequisite to the Federal Acquisition Regulation has significant implications when the Federal government is among the planet’s largest purchaser of goods and services.

This proposed rule is not based in statute, so public comment may be particularly important in determining the scope of a final rule, if any. Comments should be submitted on or before July 25, 2016 to be considered in the formation of the final rule, however, skeptics have suggested it may be the result in the Presidential election that determines if this Administration driven GHG litmus test has legs?

Maryland Vetoes Renewable Energy Portfolio Standard Increase

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Maryland Governor Lawrence J. Hogan, Jr., vetoed an increase in the State’s Renewable Energy Portfolio Standard that would have resulted in higher electricity prices across the State. This push back against an ever increasing legislatively mandated subsidized renewable energy ‘market’ portends a national trend.

Specifically, Governor Hogan announced he was vetoing House Bill 1106 – Clean Energy Jobs – Renewable Energy Portfolio Standard Revisions, as enacted in the just concluded 2016 Maryland General Assembly session.

The legislation has been characterized as a “tax increase” to be levied upon every electricity ratepayer in Maryland. House Bill 1106 would impose higher electric prices from $49 million next year to $196 million by 2020 to fund the proposed increase in the State’s Renewable Energy Portfolio Standard.

The aim of House Bill 1106, to increase the State’s Renewable Energy Portfolio Standard to 25% by 2020 is laudable, but the dramatic increase in dollar costs to Maryland ratepayers for electricity, not to mention the regressive nature of the additional dollars, including burdening the poor that rely on electricity to heat and light their homes, while benefitting out of state investors in the solar industry (many of which institutional investors leverage those dollars with federal tax incentives), was widely seen as the wrong approach.

Maryland ratepayers already were assessed over $104 million dollars for renewable energy credits in 2014 (the last year for which data is available), most of which went to subsidize solar installations. House Bill 1106 would have imposed an additional burden on ratepayers each year. Forecasting precise Renewable Energy Portfolio Standard prices is difficult, as the markets for them are influenced by multiple factors, including technology costs, labor costs, permitting costs, electricity costs, capacity market prices, potential future environmental regulations, and federal and state tax policies, but this bill would have nearly doubled year 2014 costs.

It is worthy of note that Maryland’s largest electricity generating utilities did not oppose this bill. Some have suggested that under the regulatory complexities of many jurisdiction’s Renewable Energy Portfolio Standards, it is the dinosaur electric generating monopolies that are actually among the largest dollar beneficiaries.

Without this now vetoed bill, under existing law, Maryland will retain its status as a national leader in renewable energy. In 2016, electric suppliers must demonstrate they have accumulated RECs at a percentage of 15.9 of their total electric supply into Maryland. This includes 12.7% for Tier I renewables, 0.7% for Tier I solar, and 2.5% for Tier 2 hydroelectric. The current law will have Maryland reach 20% by 2020 with the inclusion of express standards for solar and offshore wind (.. yes, Maryland rate payers are subsidizing offshore wind development and later operation) by 2022.

But calculatedly, the Maryland Portfolio Standard does not take into account that more than one third of electricity in the State is generated from nuclear power, the ultimate (but controversial) renewable energy source that produces virtually no greenhouse gas emissions.

Maryland first adopted a Renewable Energy Portfolio Standard in 2004 and has subsequently increased it. Maryland’s existing law has benefitted the growing solar industry, but there is also a corresponding cost which is borne by all Maryland citizens.

And that cost does not exist in a vacuum where Maryland ratepayers are already burdened with $277 million in Regional Greenhouse Gas Initiative ‘cap and trade’ program costs on emission allowances (through 2013, the last year for which data is available), despite a recent Congressional Research Service report that concluded, “from a practical standpoint, the RGGI program’s contribution to directly reducing the global accumulation of GHG emissions in the atmosphere is arguably negligible.”

And significantly, Maryland advantage the solar industry in other ways including that all solar panels in Maryland are, by law pervious (don’t be confused by the interplay of law and science) for purposes of stormwater management, zoning and the like.

Twenty years ago Maryland had among the least expensive price of electricity to the ultimate consumer in the residential, commercial and industrial sectors, but as of March 2016 at 14.3 cents per Kilowatt hour the average price is among the highest in the continental U.S. and the very highest among all south Atlantic states.

That rate does not include that at the time of the veto, pending before the Maryland Public Service Commission was a Baltimore Gas and Electric Co. electric and gas rate increase, largely to recoup cost of smart meters, that was ultimately approved on June 3, 2016 which is expected to boost the average residential customer’s monthly bill by $7.53.

The veto was Maryland’s effort to strike a balance in energy policy. Governor Hogan is to be applauded for vetoing House Bill 1106 as part of a national rebalancing of government energy subsidies (and not on the backs of the poor).

Solar Panels Mandated for Muscle Beach and ..

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This coming Wednesday the City of Santa Monica will begin mandating the installation of a solar electric photovoltaic system on all new building.

Santa Monica joins the California cities of Lancaster and Sebastopol which started requiring rooftop solar installations in 2013, and San Francisco which similar law, for building under 10 stories tall, takes effect January 1, 2017.

On April 26, 2016, Santa Monica, which lies west of downtown Los Angeles, adopted local amendments to the California Energy Code. All building permit applications, including for alterations to the city’s iconic Muscle Beach, will now be subject to these local amendments, which include:

All new one and two family dwellings are required to install a solar electric photovoltaic system with a minimum total wattage 1.5 times the square footage of the dwelling or a photovoltaic system or other renewable energy system that will offset 75%-100% of the Time Dependent Valuation energy budget (in accordance with state law).

All new low-rise residential dwellings are required to install a solar electric photovoltaic system with the minimum total wattage 2.0 times the square footage of the building footprint.

And all non-residential and high-rise residential are also required to install a solar electric photovoltaic system with a minimum total wattage 2.0 times the square footage of the building footprint. So, a four-story building with a footprint of 10,000 square feet would need a 20 kilowatt system under the new law.

These requirements can be waived or reduced, by the minimum extent necessary, where production of energy from solar panels is technically infeasible due to lack of available and feasible unshaded areas.

Note, California law already requires most new construction to have 15% of the rooftop “solar ready.”

And while mandating onsite solar systems is not at all common today, Baltimore was actually the first major American city, to mandate all new building include renewable energy systems. Baltimore’s green code requires all buildings that consume energy must contain at least one renewable energy system capable of producing at least 1% of the total estimated annual energy use of the building.  More elastic and arguably more progressive than the California mandates, the Baltimore options include not only solar photovoltaic systems, but also wind systems, solar hot water heating systems, and geothermal systems.  There is an exception for buildings which commit for a period of ten years to buy renewable energy credits for at least 2% of annual energy consumption.

Whether in Santa Monica or Baltimore, there is still the very real unanswered question of whether or not onsite renewable energy mandates are good energy policy or environmental policy (e.g., possibly rooftops are better utilized for greywater collection, storm water management, combatting urban heat island effect, etc.)?

Both California and Maryland have mature renewable energy portfolio standards that make distributed small scale generation not only more expensive per watt than central generation for the user but also economically inefficient, largely as a result of regulatory schemes that protect dinosaur electric utility monopolies.

A 30 story highly energy efficient proposed LEED Gold building being permitted in Baltimore has little alternative but to purchase 10 years of RECs (i.e., the building cannot produce 1% of energy used in the roof footprint) increasing first costs under the guise of distributed generation, and such seems like less than ideal public policy.

Can the EDGE Green Building System Save the Planet?

Bathroom in tea house, Dingboche, Nepal Bathroom in tea house, Dingboche, Nepal

If you are regular reader of this blog you are aware there has been a brief hiatus in postings. I have been climbing in the Himalayas in Nepal for the past month and, in fact, am composing this blog post sitting in the lobby of the Yak and Yeti hotel in Kathmandu, as I begin to make way home.

While Nepal is breathtaking, containing eight of the world’s ten tallest mountains, the country is landlocked to the north by China and to the south and east by India, and is a developing country with a low income economy, ranked among the poorest of the 187 countries in the U.N. Human Development Index.

Writing this post from Nepal, it seems appropriate to discuss EDGE.

EDGE, the acronym for “Excellence in Design for Greater Efficiencies” is a green building certification system for new residential and commercial buildings in emerging markets and developing countries. Yes, think “like LEED” for the other 70 percent of the world.

EDGE certification is available in over 120 countries around the globe, from Afghanistan to Zimbabwe and including Nepal, but not in developed nations like the U.S.

The photograph above from a popular tea house in Dingboche, Nepal depicts that LEED type notions of interior water use reduction (e.g., WaterSence flush toilets) and energy reduction (e.g., LED lighting) have little in any application for the majority of buildings in most developing counties where squat toilets with a bucket of water are the norm and the only illumination is daylight from a window.

EDGE was created by the International Finance Corporation, one of five organizations that comprise the World Bank Group. It has three component parts, including: Free web based software at, that is country and building type specific (ranking a project against typical similar buildings) and recommending specific measures to reduce energy and water use, including sophisticated databases and calculations that make separate energy modelling obsolete and even project dollar return on investment for specific contemplated design features.

Second, a new pass or fail green building standard for projects that are able to demonstrate 20% less energy (from efficient HVAC systems, superior glass, low-energy lighting, solar solutions, etc.) against the city specific prototype; 20% less water (from low-flow faucets, efficient water closets, recycled water systems, etc.); and, 20% less embodied energy in materials (from floor, roof, wall and window construction with low embodied energy).

And the third component is a third party EDGE certification system geared toward greater marketability. EDGE is new so there are few auditors today, but GBCI is a global certification partner for EDGE and the exclusive certification partner for EDGE projects in India. Certification will vary from country to country and is intended to be at affordable rates, but it is not yet clear that certification costs are low enough to encourage marketplace acceptance of EDGE certification.

Green building can save the planet, or at least the people on the planet. Today, significantly less than one percent of buildings in the U.S. are LEED certified and that percentage is obviously much smaller across the globe, so maybe the answer outside of the U.S. is EDGE? And while it is premature to reach grand conclusions with the small number of completed EDGE projects, possibly there is much to be learned, substantively and process wise, from the EDGE web based software about how to expand the green building market within the U.S.

20% less energy, 20% less water, and 20% less embodied energy in materials, in a large enough number of buildings, will save the planet.

What the LEED Pilot for Wood Is and What It Is Not

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The U.S. Green Building Council is to be applauded for the release last week of the new pilot credit MRpc102 – Legal Wood.

There may be no single subject matter more discussed with over the 15 year history of LEED than forest product certification. And that this new pilot credit continues the discussion is positive.

But make no mistake that this new alternative compliance path credit does not alter the existing LEED credit, NC v4 MRc3 that mandates,

Wood products must be certified by the Forest Stewardship Council or USGBC-approved equivalent.

That existing certified wood credit has only been achieved on 1,677 of LEED 2009 new construction projects, so despite all the discussion it has not been a market mover. The vast majority of LEED buildings have not pursued that credit.

And despite much that has been said in the past week, including by a variety of wood industry trade groups declaring victory, USGBC has not approved any “equivalent” to FSC certified wood.

What USGBC did do within the April 5, 2016 quarterly addenda to LEED was include a new temporary alternative compliance path credit,

MRpc102 Legal Wood| Possible 1 point

Use wood verified to be from Legal (non-controversial) Sources as defined by ASTM D7612-10. These components include at a minimum, structural framing and general dimensional framing, flooring, sub-flooring, wood doors and finishes.


70% (based on cost) of all wood used on the project must be from Responsible Sources as defined by ASTM D7612-10. These components include at a minimum, structural framing and general dimensional framing, flooring, sub-flooring, wood doors and finishes.


A minimum of 50% (based on cost) of wood-based materials and products must be sourced from Certified Sources as defined by ASTM D7612-10. These components include at a minimum, structural framing and general dimensional framing, flooring, sub-flooring, wood doors and finishes.

This pilot alternative compliance path can be used in place of credits in LEED 2009 for New Construction and Commercial Interiors as well as for Existing Buildings and in LEED v4 Building Design + Construction, Operations and Management, and Homes.

Of import, USGBC’s announcement of the pilot credit said that it was, “to test an approach to prerequisite requirements, which could serve as a model for other building materials.” But it has been suggested by some among the environmental industrial complex that a future LEED prerequisite that would mandate all wood used on every LEED project be FSC certified (i.e., having the effect of excluding wood from two-thirds of certified forests in North America) would be devastating to the rating system, provoking the ire of many.

If one is tempted to gloss over the reference in that press release to “building materials” note that a senior policy making staffer at USGBC has been quoted describing this as a pilot for “responsible sourcing of all materials that go into a building such as concrete, steel, copper and other materials.” Recall that the U.S. Green Building Council was originally named the U.S. Green Manufacturers Council reflecting that the target members were building product manufacturers. Given the increased emphasis, some more than 20 years later, on building materials, that name change provides very real insight into the future of the organization.

However, a real concern over this new Legal Wood pilot credit is that it is not actually about “legal wood” but rather is about a subset of wood from trees managed under some forest certification system. Wood that is not certified as managed is not illegal. It is simply not from a managed tree. That distinction is huge because the very ASTM standard referenced accepts that “forest certification is still a small fraction of total forest acreage” going on to describe that only 10% of forests are certified. Again, that does not mean that wood from the other 90% of forests is illegal or somehow not legal, but rather only that it is not from a certified forest.

So, this is about forest management practices. Forests can be managed across a broad spectrum of philosophies from high-yield “crop style” plantations at one extreme to parks and preserves at the other. Since 2005, the Weyerhaeuser Company has planted more than one billion trees and that it is forests like those where most U.S. certified wood comes from (although most of that acreage is not FSC certified).

Again, this is about certified versus not certified. There are existing laws including the Lacey Act to prohibit illegal forest products. Section 8204 of that Act as amended in 2008 is titled “Prevention of Illegal Logging Practices.” The Act provides the legal authority to take action when products stemming from the practice of illegal logging enter the U.S.  Declaration forms are required for all forest products imported into the U.S. including that specify the country of origin.

But the same may not be true elsewhere. Russia has the second largest quantity of FSC certified wood in the world (after Canada), but 25% of Russia’s timber exports are described as originating from illegal logging, including that the Russian taiga and the FSC logo are being misused.

Across the rest of the globe, more than 2.8 billion residents of poor and developing countries gather and burn wood illegally for fuel to keep warm and cook food. But that subsistence wood does not find its way into LEED buildings in the U.S.

So a Legal Wood pilot credit might be a misnomer?

What ASTM Standard D7612-10 (2015) does provide in its appendix,

X1.3 Organizations promulgating the most prominent forest certification programs throughout the world are the American Tree Farm System (ATFS) (, the Canadian Standards Association Sustainable Forest Management Standard Z-809 (CSA-SFM) (, the Forest Stewardship Council (FSC) (, the Programme for the Endorsement of Forest Certification schemes (PEFC) (, and the Sustainable Forestry Initiative (SFI) (

Absent application of this pilot credit, the USGBC is out of step, in only accepting FSC certified wood, with other green building councils from Australia and Italy to Spain as well as with other rating systems including the domestic ICC 700, Green Globes and the IgCC that all accept a variety of forest certification standards.

But make no mistake, USGBC has been consistent. In 2010, USGBC members in a consensus ballot rejected including other forest certification standards other than FSC and the early versions of LEED v4 opened that same door only to have it closed in the adopted version of v4.

USGBC’s FSC only position has been a lightning rod for opponents and the pilot credit will effectively repeal Maryland’s longstanding statute not permitting the LEED wood credit to be pursued in government projects or other projects seeking LEED based tax incentives; but this will not repeal similar statues and executive orders in Maine, Georgia and elsewhere.

And it is much more than just wood for construction, as “wood based products” includes even office paper in in the MRc1 Sustainable Purchasing: Ongoing Consumables credit.

Possibly the discussion in evaluating the efficacy of this temporary pilot credit, which is planned to take place on an expedited basis over the coming months, should focus on expanding the use of wood from the 10% of certified sources. Such could complement an effort to provide a framework to help the green building industry identify the competent and reliable evidence needed to substantiate product claims as required by the Federal Trade Commission Green Guides.

Zealots should be aware that an FSC only certification for LEED buildings may do modest harm to the world’s forests but the single proprietary certification program may significantly wound the LEED rating system, further provoking the ire of governments and businesses alike.

Again the U.S. Green Building Council should be applauded for providing wood products manufacturers, distributors, and retailers with an opportunity to further discuss clear and objective information with the broader business community regarding specific forest management and forest certification programs.

Lawsuit Challenging Approval of Genetically Modified Animals

Aquabounty 10 to 12 month old transgenic salmon Aquabounty 10 to 12 month old transgenic salmon

Last week a coterie of environmental groups sued the U.S. Food and Drug Administration for approving the first ever genetically engineered animal for human consumption, a salmon engineered to grow quickly.

The Institute for Fisheries Resources, Pacific Coast Federation of Fishermen’s Associations, Golden Gate Salmon Association, Kennebec Reborn, Friends of Merrymeeting Bay, Cascadia Wildlands, Center for Biological Diversity, Ecology Action Centre, Friends of the Earth, Food and Water Watch, and Center for Food Safety challenged the FDA’s November 19, 2015 decision approving an application by AquaBounty Technologies, Inc. to develop, market, and sell for human consumption genetically engineered salmon.

AquaBounty’s salmon is an Atlantic salmon genetically engineered with genes from a deep water ocean eelpout and a Pacific Chinook salmon in order to make it grow fast.

The approval of the salmon marks the first occasion where the U.S. has authorized the production of a genetically engineered animal of any variety to be sold as food. This court action seeks to serve as a precedent for the regulation of potential future genetically engineered animals, effectively banning the science.

Fascinatingly, AquaBounty will produce its salmon at a facility located on Prince Edward Island, Canada, and then transport, by land and air, the resulting eggs to a separate facility located in Panama, where the genetically engineered eggs will be grown to maturity, before being processed and shipped back to the United States for sale.

The lawsuit alleges that the FDA has not adequately assessed the full range of potentially significant environmental and ecological effects presented by AquaBounty, in violation of the Federal Food, Drug, and Cosmetics Act, 21 U.S.C. §§ 301-399(f) (FFDCA); the National Environmental Policy Act, 42 U.S.C. §§ 4221-4370h (NEPA); the Endangered Species Act, 16 U.S.C. § 1531-1544 (ESA); the Federal Food and Drug Amendments Act of 2007, Pub. L. No. 110–85, 121 Stat. 823 (2007), 21 U.S.C. § 2106 (FDA Amendments Act); and the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (APA).

The complaint goes on to say that even apart from those violations of statutes, FDA’s decision to approve AquaBounty’s salmon application should be vacated and set aside because FDA lacks the authority to regulate genetically engineered animals as a “new animal drug.” The pleading argues that when Congress authorized the FDA in 1938 it never intended or provided a means for FDA to regulate twenty first century genetically engineered animals.

The coalition of plaintiffs is asking the court to declare that the FDA’s decision to approve the AquaBounty application for genetically engineered salmon is arbitrary, capricious, and in violation of the APA, NEPA, ESA, and the FDA Amendments Act; to vacate FDA’s approval decision; and enjoin FDA “from taking further action on any other application for commercialization of a genetically engineered food animal” until Congress provides explicit statutory authority governing regulation of such products.

AquaBounty’s salmon bodes well for people interested in less expensive fish and more broadly for larger quantities of food for human consumption.

This Luddite styled challenge to all genetically engineered animals flies in the face of the existing reality, including both that more than 90% of corn and soybean grown in the U.S, are genetically modified crops resistant to insects and herbicides, and that many food companies are already beginning to roll out food labels listing genetically modified ingredients in response to the Vermont law that goes into effect this July. Maybe labelling genetically modified foods is the better alternative to banning them.

Now is the Time to Revise your Green Building Contracts

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Today is the day to revise your contracts for sustainable projects.

With the U.S. Green Building Council’s recent announcement that all new projects registering for LEED 2009 beginning later this week, on April 8, 2016, will need to satisfy increased minimum energy performance thresholds, everyone involved with LEED projects should promptly review their contract documents to determine the implications of this significant change in LEED, and accordingly what amendments to contracts may be necessary and proper.

Moreover, owners will only be able to register projects under the LEED 2009 rating system until October 31, 2016 and thereafter all projects must register under LEED v4.

These two dramatic changes to LEED have very real potential for increasing risk in green building, but updates are also underway to Green Globes and ASHRAE 189.1 as well as to a host of green codes. And many of both the recent and contemplated changes are significant not only substantively and potentially dramatically increasing first costs, but also in terms of process (e.g., LEED has added Integrative Process).

Beyond changing green building standards, rating systems and codes, we have the recent Federal court judgment and multi Million dollar resolution of the disputes over the first LEED Platinum building involving specifying new or untried materials and products (that are often the keystone of sustainable building).

And that litigation predated the increased liability associated with materials including the new largely untested EPDs and HPDs.

Additionally, more lenders, including in green bond financings, are requiring opinions of counsel as part of closing due diligence both in green construction financing and permanent loans.

It is beyond dispute that the best way to mitigate risk in a sustainable project is a properly drafted contract. And while this law firm makes a business of drafting and revising contact documents, there are very good contracts available in the marketplace. The American Institute of Architects released “sustainable project” versions of key AIA Contract Documents in 2012 and those documents have been expanded and updated. Today, those AIA Sustainable Project Contract Documents are among the most used in the industry (.. and yes, we spend a great deal of time recommending project specific modifications to those form documents to make certain the contracts reflect the expectations of all the parties and mitigate risk for our clients).

There is also the Associated General Contractors of America ConsensusDocs “Green Building Addendum” where the parties designate a Green Building Facilitator to coordinate or implement identified objectives, which can be a project participant or consultant. And while this structure has not been as widely adopted as the mechanism contemplated in the AIA Sustainable Project documents, the addendum is ideal in identifying unique and additional services necessitated by sustainable projects.

The single best resource for drafting contracts on green building projects is the AIA Document D503 Guide for Sustainable Projects available for free from this link.

Surprisingly, in an unscientific but comprehensive review of the last 50 sustainable project construction industry contracts forwarded to this law firm in a potential construction dispute, less than 10% had properly drafted provisions governing the disputed green building matte. Just over 50% of those contracts had any meaningful sustainable project specific language.

It is now the time to revise your contracts for sustainable projects.

The Defamation Case Against Greenpeace

Canada Court

If you have not been following the defamation case against Greenpeace, with a key ruling expected from a Canadian court in the coming days, now is the time to come up to speed.

The case is Resolute Forest Products Inc., et al v. 2471256 Canada Inc. d/b/a GreenPeace Canada, et al, pending in the Ontario Superior Court of Justice.

Resolute alleges in its pleadings that in 2012 Greenpeace published defamatory articles critical of Resolute’s forestry and corporate practices, even after publicly retracting its claims after Resolute threatened litigation, and secretly disseminated them to Resolute’s customers. Resolute claims that Greenpeace wrongfully informed Resolute’s customers, investors and stakeholders that Resolute improperly harvested or sourced materials in Canada’s boreal forest, and that these falsehoods caused Resolute to suffer damages. It is also alleged that Greenpeace has continuously and intentionally interfered with Resolute’s economic relations by threatening and intimidating its customers (including by example, Best Buy that stopped purchasing paper for advertising circulars). Resolute seeks general damages of $5 million and punitive damages of $2 million.

Specifically, in its amended amended response to demand for particulars, Resolute alleged that Greenpeace’s unlawful activity included:

trespass, unlawful picketing, defamation and other unlawful activities engaged in by Greenpeace and other radical ENGOs in previous campaigns. The threatened conduct serves notice upon Resolute’s customers that if they do not accede to demands to remove Resolute from their supply chain, they will be the target of unlawful activity, which is intended to cause the customers harm.

Greenpeace defended the claim in preliminary motions on the basis of truth (justification), fair comment, qualified privilege, and responsible communication.  It pleaded that Greenpeace acted in good faith and provided a background to the factual allegations regarding Resolute’s sourcing and harvesting of materials in the boreal forest. And Greenpeace alleged that Resolute’s litigation constituted strategic litigation against public participation (SLAPP).

In defense of the defamation claim, Greenpeace also pleaded that Greenpeace had a “social and moral duty to investigate the forest practices of Resolute Forest Products, and to prepare and publish the [allegedly defamatory] Publications.”

Resolute filed a reply itemizing what Resolute characterized as a 40 year history of campaigns in which Greenpeace or its international affiliates engaged in “illegal and tortious conduct.” None of these allegations related to the Canadian boreal forest. Greenpeace moved to strike these objectionable portions of the reply on the grounds that they did not rebut matters raised in the defense but instead raised new claims including allegations against organizations that were not parties to the litigation. The motions judge agreed that the impugned portions of the reply expanded the proceedings, but determined that Greenpeace “had put in issue” its moral and social duty and public interest reasons for its conduct, thereby inviting a reply that expanded the scope of the litigation. In concluding thus, he dismissed Greenpeace’s motion to strike the offending portions of the reply. It is GreenPeace’s appeal from that interlocutory order that is pending.

The heart of the issue being appealed, as acknowledged by the motions judge in his ruling, is the expanded the scope of the litigation:

While Greenpeace complains it will be required to lead evidence or respond to evidence in regard to seven other campaigns alleged to be sensational and twenty-two other campaigns where tortious or illegal conduct is alleged, I expect proof of Greenpeace’s allegation of its “moral or social duty” upon which it relies in its defence will require reference to particular matters that arise outside of the particular matters complained of by Resolute.  This may require the entire litigation to take on a very broad area of inquiry….

It is anticipated that the Canadian court will soon rule on the matter appealed which could set in motion “a comprehensive review of the activities of Greenpeace world-wide over a period of forty years.”

This blog will continue to monitor this rare case where a single business has taken on a global environmental organization in the courts.