All the Cool Green Building People will be in Memphis Next Week

The process of updating the 2012 International Green Construction Code moves to Memphis next week.

The IgCC provides model code language, to be adopted by local governments as an overlay to existing codes to establish “baseline regulations for new and existing buildings related to energy conservation, water efficiency, building owner responsibilities, site impacts, building waste, and materials” and other matters. 

It is surprising to some that adoption of the IgCC across the country has not been faster and broader. It may be that mandatory green building codes are controversial and fly in the face on the tenets of green building as voluntary stewardship of the Earth; which would explain the large market share that LEED has, as a voluntary third party green building rating system. But a better explanation may be that the IgCC needs to find its place among standards, rating systems and codes; which is a balancing act between the hard left environmental extremists and the conservative engineering based code officials? And that is what is going to happen in Memphis.

The ICC’s new cloud based code development system “cdpACCESS” will be used for the first time for offsite comments to the 2015 IgCC, but the action will be on the ground in Memphis.

Proposed IgCC changes submitted have been posted online since March 10th for public review. The changes will be heard at two Committee Action Hearings conducted April 27th through May 4th in Memphis. The hearings will also be webcast live.

There are more than 900 changes proposed ranging from clarifying confusing text to updating requirements to reflect the best science evolved since 2012. By way of example, one positive change is GC 159-14, being advanced by the National Asphalt Pavement Association, to revise IgCC section 408.2.4. Pervious and Permeable Pavement, to now refer only to permeable pavements defined as having an air void of at least 15% versus the current measure of a percolation rate of 2 gallons per minute per square foot. Recent research describes how permeable pavements can not only manage stormwater but also mitigate urban heat island effect due to the high air void nature.

NAPA is also proposing GC 156-14 to delete IgCC section 408.2.1 describing site hardscape material as having a solar reflectance value of not less than 0.30. This is significant because the IgCC mandates heat island mitigation for not less than 50% of site hardscape, including that the hardscape materials meet that requirement. Given the growing body of evidence of unintended consequences associated with reflective pavements and the potential negative impact they may have on energy usage, it is time ICC members accept the code may have gotten ahead of the science and be prepared to eliminate provision.

The results of the hearing (to accept, reject or accept with modifications) each IgCC change proposal, will be posted online. A public comment period will then be conducted until July 16, 2014, where any member of the public may provide written comments.

Public Comment Hearings will be held in Ft. Lauderdale between October 1 and 7, 2014.  Voting on the final action on the public comments will be done by governmental ICC members both at the hearing and for a two week period afterward with cdpACCESS.

The resulting document, the 2015 IgCC will be released for use in the calendar year 2015 and will offer a more robust and greener Green Construction Code.

Zoning Laws Stop Wind

The application of zoning laws, many of which date to the 1920s are bringing alternative energy projects to a halt in 2014.

In a recent New York case, the Town of Allegany issued a special use permit to a landowner on July 11, 2011, allowing it to construct a wind farm. The Town notified the landowner that its permit would “expire if construction has not commenced within a year of approval.” On June 11, 2012, the Town extended the deadline “until the earlier of” one year or 90 days after the “conclusion of the” lawsuit commenced against the Town by a citizens’ group, Concerned Citizens of Cattaraugus County, which opposed the project.  

By letter dated August 3, 2012, petitioner advised the Town that it was “considering use of alternate turbine models” for the project. Petitioner thereafter requested a second extension of the special use permit, but the Planning Board denied that request at its October 15, 2012 meeting.

The Supreme Court of the State of New York, in Allegany Wind LLC v Planning Board of Allegany, 2014 WL 1099718 (NYAD 4 Dep. 3/21/2014), concluded that, contrary to the landowner’s contention, there was a material change in circumstances since the special use permit had been issued, and that the Planning Board’s refusal to extend the special use permit for a second time was not arbitrary or capricious. When the special use permit was granted, the landowner was going to use Nordex N1000 turbines. It was undisputed that, by the time landowner requested its second extension of the permit, it proposed using alternate turbine models because that model was no longer being produced and less expensive more energy producing turbines had become available during the pendency of the lawsuit. The Town determined that a change in turbine models would constitute a change in circumstances sufficient to warrant reconsideration of the project.

The landowner also argued the time period should be tolled because, until the litigation was resolved, it could not obtain necessary financing and could not commence construction of the wind farm. The high court rejected that further contention that the expiration date of its special use permit was tolled during the pendency of the lawsuit.

Most zoning laws, including those in New York, do not provide for or otherwise recognize an equitable doctrine that would allow for the tolling of the time period of zoning approvals. Such is a bar to large and expensive projects that require special zoning approvals, as many alternative energy projects do. Interestingly, most Dinasaur electric utilities’ projects ‘are permitted as of right’ in all zoning districts, while zoning laws require special exceptions or special use permits or the like for many alternative energy projects. 

Historic zoning laws need to be brought into the contemporary era. Electricity in the 1920s, when many of today’s zoning laws were written, powered the Edison light bulb. Today, that light bulb is illegal and electrons drive our socio-technological trends powering the information age. Modern alternative energy projects must not be allowed to be halted by old fashioned zoning laws.

Why You Care About the Revision to OMB Circular A-119?

The U.S. Office of Management and Budget is seeking comments, no later than May 12, 2014, on proposed revisions to Circular A-119, “Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities.”

“Green Globes and LEED are voluntary, consensus based standards” according to Kevin Kampschroer, director of the office of federal high-performance green buildings at the U.S. General Services Administration, referring to the March 2012 U.S. Department of Energy, Green Building Certification System Review.  

That is, both of those green building programs are the very type of “voluntary consensus standards” that will be impacted by the revised Circular A-119.

By way of background, in the National Technology Transfer and Advancement Act of 1995, Congress provided that federal agencies “shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards means as a to carry out policy objectives or activities,” except when such use “is inconsistent with applicable law or otherwise impractical.” In response to the enactment of the 1995 law, OMB prepared Circular A-119. In light of changes that have taken place in the world of regulation, standards, and conformity assessment since the Circular was last revised in 1998, it is now being updated.

The revised Circular A-119 proposes to “maintain a strong preference for using voluntary consensus standards in Federal regulation and procurement.”

The reliance on nongovernment standards is not without controversy. That is, created by a particular interest group (arguably a small group of people with shared interests that is exclusive of most people) for a limited purpose at a specific time, be it an ISO, ANSI, ASHRAE or other, standards offer efficacy to a process or product, but can be problematic when the limits of the standard are not appreciated.  

Within the green building coterie much is made of the fact that the Green Building Initiative is an ANSI accredited Standards Developing Organization and that its Green Globes 2010 rating system for new construction was ANSI approved. The LEED ratings systems do not pursue ANSI approval and the U.S. Green Building Council points to the fact that “The Foundations of LEED” allows for a flexible and faster adoption of each new version of LEED than the ANSI Essential Requirements permit. Additionally, the ANSI process doesn't contemplate nor accommodate the participation of thousands of people in a voting consensus body. USGBC expresses pride in offering all its members the right to participate in and vote for each proposed version of LEED.

That ‘inside baseball’ debate within the green building community over the relative merits of ANSI is apparently lost on the federal government that in the 2012 DOE study (described above) determined, Green Globes 2010 and LEED 2009 both contain “the attributes of a voluntary consensus standards body defined in OMB Circular A-119: openness, balance of interest, due process, an appeal process, and consensus.”

Much of the controversy over the emergent Environmental Product Declarations is that most are based on dated European ISO standards originally conceived for other purposes.

Given that the federal government is the largest owner of buildings in North America and is also the owner of more certified green buildings than anyone else, it is of critical importance that any revision to Circular A-119 continue to allow agencies to recognize LEED and Green Globes as voluntary consensus standards.  

All are encouraged to review the Federal Register notice and comment here.  

The Single Most Significant Change in LEED

By Jacqueline Lusk and Stuart Kaplow

The newest version of LEED, with the designation LEED v4 is not simply another step in the continuous improvement of the third party verified green building rating system, and while not paradigm shift equal to a Neil Armstrong “giant leap for mankind,” LEED v4 is an all but an entirely new green building certification program.

Among the many modifications from the previous version, LEED 2009, there is a single change that is the most significant, bar none.

The change is buried deep within the LEED Operations and Maintenance Existing Buildings program and is not even in the printed reference guide. 

The quick explanation is the change is an alternative method of satisfying the prerequisite that an existing building achieve an Energy Star Portfolio Manager tool energy performance rating of at least 75. Prior to the availability of this alternative compliance path, an existing building that could not achieve an Energy Star rating of 75 was excluded from participating in LEED.

There are nearly 4.9 million existing non-residential buildings in the U.S. If green building is going to save the planet, the huge impact that existing buildings have on the natural environment must be addressed.

Launched in 2004, as of February 1, 2014, more than 2,700 existing buildings are LEED Existing Building –Operations and Maintenance certified, and more than 6,500 buildings are registered pursuing certification. And while that is a respectable number, it is also a ridiculously small percentage of those nearly 4.9 million existing buildings.

As a practical matter the LEED EB-OM Minimum Energy Performance prerequisite is the gatekeeper determining if an existing building can even be a LEED candidate. LEED v4 requires a minimum Energy Star rating of 75. (This is more significantly stringent than LEED 2009 requiring an Energy Star score of 69.) An Energy Star score of 75 means the building is performing better than 75% of similar buildings nationwide. The prerequisite of a minimum score of 75 arguably excludes 75% of all existing buildings from participating in LEED.

David Gottfried, the cofounder of U.S. Green Building Council has often been quoted saying, “USGBC decided that the minimum bar for the ‘L’ level for LEED [i.e., L for Leadership] certification would begin with the top 25% of buildings.” And the very real application of that philosophy is that the maximum potential market for LEED is 25% of existing buildings (as limited by an Energy Star score of 75).

Even with that cap LEED EB-OM certified more than half of all the domestic floor area in the LEED rating system in 2013.  So, any change to EB-OM is of paramount import to LEED itself, not to mention the implications for the millions of existing buildings.

In LEED v4, the “Existing Building – Operations and Maintenance” rating system was renamed “Operations and Maintenance: Existing Buildings” and is known as O+M: EB.

LEED O+M: EB encourages owners and operators of existing buildings to implement sustainable practices and reduce the environmental impacts of their buildings, while addressing the major aspects of ongoing building operations, including: exterior building site maintenance programs, water and energy use, environmentally preferred products and practices for cleaning and alterations, sustainable purchasing policies, waste stream management, and ongoing indoor environmental quality. LEED O+M: EB is popular with building owners concerned about costs because it identifies and rewards current best practices and provides an outline for uncovering operating inefficiencies.

The monumental change in O+M: EB is there is an alternative for satisfying the EAp2 prerequisite that an existing building achieve an Energy Star rating of at least 75. There is a pilot credit known as “EAp2 Energy Jumpstart” which is that alternative compliance path.

Existing building that reduce energy consumption by 20% are now LEED eligible. The pilot credit text provides,   

Demonstrate energy efficiency improvement, measured by source energy use intensity (EUI), of at least 20%, normalized for climate and building use. The percent reduction is determined by the project building’s energy reduction over the most recent 12 months, and data from three contiguous years of the previous five represents the baseline period. Buildings without four consecutive years of energy data are ineligible.

That is, a building that improves its Energy Star score by at least 20% is LEED O+M: EB eligible! And that is huge.

There are a few limitations on use. This pilot alternative compliance path is only available to projects from Energy Star eligible building types. Today, when Energy Star rating are available for building types from bank branches and barracks to wastewater treatment plants and warehouses, such is not a significant limitation. And there is a 500 project cap on participation in this pilot credit. Which is also not a significant bar to entry when it does not appear any project has yet been certified using the pilot credit.  

This is a pilot credit and will no doubt be revised over time, including providing other options for providing energy consumption data to USGBC.

By way of background, USGBC did test this idea. The little used (and still available for LEED 2009 EB:OM buildings) Pilot Credit 67, was the precursor to Energy Jumpstart, offers the same “alternative compliance path requiring projects to achieve an energy improvement of 20% over a 12-month period.”

Available for use now, the single most significant change to LEED O+M: EB, and to the entire LEED v4 green building certification program, is the alternative method of satisfying the prerequisite that an existing building achieve an Energy Star rating of at least 75. LEED certification is now possible for the over 3.6 million buildings (of the nearly 4.9 million existing non-residential buildings in the U.S.) that would otherwise be excluded.

The new pilot credit provides expanded opportunities for USGBC.

Pilot credit EAp2 Energy Jumpstart may be “one small step” for LEED, but it is “a giant leap” for reducing energy use on the planet.

Jacqueline Lusk is a sustainability consultant at Lorax Partnerships and can be reached at Stuart Kaplow is a sustainability and green building attorney and can be reached at  

LEED Reaches 3 Billion Certified Square Feet

The U.S. Green Building Council is about to announce that there are more than 3 Billion square feet of LEED certified commercial and institutional building.

Three Billion! That is a three followed by nine zeros or three thousand millions.

In a sense of scale, the Earth is only 4.67 Billion years old. The distance to the moon and back is less than 3 Billion feet (actually 2.66 Billion feet at apogee). It is very hard to comprehend how many 3 Billion is. The word Billion may not be as unfathomable as it once was, but 3 Billion square feet of LEED building is nothing less than a market transformation of real estate. 

USGBC does acknowledge that 10.5 Billion square feet of construction space is “participating in LEED” and admittedly that number does add another zero.

It was publicly reported that “more than 2.8 Billion square feet” of building space was certified as of January 1, 2014. Then the organization released that 2.9 Billion square feet had been LEED certified, buried in a February 18, 2014 press release. And senior staff at USGBC have at least twice in public comments during the last week hinted that 3 Billion was approaching.    

Many folks are aware that USGBC reports each and every day, more than 1.6 million square feet of space is certified using LEED.

Based solely upon the publicly available information it is clear USGBC is within hours of announcing that there are now more than 3 Billion square feet of LEED certified building (not including residential construction). That milestone is significant because LEED has transformed the way we construct buildings and holds the promise of green building mitigating the negative impacts that human activity has on the planet

Platitudes aside, what does that 3 Billion look like? USGBC tells us that as of February 1, 2014, LEED for New Construction & Major Renovations, the first rating system launched in 2000 has more than 19,000 buildings registered and nearly 10,000 certified. But today LEED is much more than new construction ..

LEED for Existing Buildings: Operations & Maintenance launched in 2004 has more than 6,500 registered buildings and nearly 2,700 have been certified. Significantly, the square footage of certified existing buildings has surpassed certified new construction on a cumulative basis. Last year the existing building rating system accounted for approximately 48% of total square footage certified.

LEED for Core & Shell launched in 2006 has more than 4,800 registered buildings and more than 1,450 have been certified.

LEED for Schools launched in 2007 has more than 1,400 registered buildings and more than 640 have been certified. But that number does not take into account projects with K-12 or Higher Education designated as the “space type” (e.g., LEED New Construction or others) which adds nearly 4,000 registered and more than 3,300 certified.

LEED for Retail: New Construction launched in 2010 has more than 550 registered buildings and more than 375 have been certified.

LEED for Healthcare launched in 2011 has more than 200 registered buildings and 2 have been certified. But that number does not take into account projects with healthcare designated as the “space type” which adds nearly 1,460 registered and more than 600 certified.

LEED for Commercial Interiors launched in 2004 has more than 4,100 registered projects and nearly 3,900 have been certified.

LEED for Retail: Commercial Interiors launched in 2010 has nearly 600 registered projects and nearly 300 have been certified.

The use of LEED internationally continues to grow rapidly. At the beginning of 2014, approximately 42% of all square footage pursuing LEED certification existed outside the U.S.

There is much to celebrate. LEED is now a global movement. But the impact of green building is still very small. For those who believe green building is the ideal means of mitigating the negative impacts that human activity has on the planet, it is time to work on the more than 7 Billion square feet registered but not yet certified.

Photo Credit. Members of City of Sunderland College's Human Rights Group displaying the number of people in the world who subsist on less than 2 dollars a day.

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LEED Law Intersects Miracle on 34th Street

On March 18th the Tomkins County legislature enacted a new local law providing for up to a 10 year property tax abatement for construction achieving LEED certification.

Tomkins County, New York which includes the Ithaca area, was named for Daniel Tomkins. Tompkins may be best known because he was mentioned by Kris Kringle in the 1947 film Miracle on 34th Street. The onscreen line was incorrect, however, in that Kringle said Tompkins served as Vice President of the United States under John Quincy Adams when in fact he was elected on the ticket with James Monroe in 1816 (.. but you knew that). 

In 2012, New York enacted NYCL RPT § 470 enabling local governments to exempt green buildings from real property taxes. For the exemption to apply, the local government must adopt an appropriate ordinance. The state statute describes new construction or improvements and that a project must meet the LEED, Green Globes, American National Standards Institute, or substantially equivalent green building certification standards.

Tomkins County, desiring “to encourage sustainable practices,” enacted Local Law A of 2014, effective on the date of enactment, providing for up to a 10 year property tax abatement for building achieving LEED certification (and the law does not include the other permissible green building rating systems). The amount of the exemption permitted varies by year and by the certification level achieved. LEED Silver, Gold and Platinum projects each are exempted from 100% of property taxes for 3 years and then taxes are re established with a sliding scale over 10 years, with the most generous tax incentives being awarded to Platinum building.

The maximum taxable value to be abated under the proposed law would be $100,000.

The local law was one of the ‘Top 22’ priority projects in the Cleaner Greener Southern Tier Plan, which was developed with input from community residents, businesses, and government to develop a regional sustainability plan to improve the economic and environmental health of the area.

The County is home to Cornell University, Ithaca College and Tomkins Cortland Community College, and these institutions have LEED buildings on campus, but there are no other LEED certified buildings in the Ithaca area.

A real property tax exemption is the most common local government incentive for Green building. In a recent survey of local government green building laws across 100 jurisdictions, overwhelmingly the most often granted incentive for a LEED certified building was an abatement of real property taxes.

All are invited to the symposium “Can Green Building Law Save The Planet?” at the University of Baltimore School of Law this Wednesday, March 26 at 5:30 p.m.  Susan Dorn, general counsel of the USGBC, Abbey Hopper, director of the Maryland Energy Administration, and others will be presenting with me. For details and to RSVP .

Photo 20th Century Fox 1947

EPDs are New and Untested but in Short Order will Dominate

An environmental product declaration (EPD) is a method of quantifying the environmental impacts of a product in order to provide a sound basis for making decisions about the use of that product. As explained in my recent blog post, EPDs are Among the Hottest Topics in Green Building. Most simply put, an EPD in analogous to a nutritional label on a box of cereal. But beyond that explanation nothing is simple ..

As a threshold matter, EPDs have been a European construct in part to comply with the European Union Integrated Product Policy. There is no similar U.S. law. Credits in LEED v4 related to EPDs are rapidly heightening interest in the U.S.   

But just as Metric measurements have not overtaken the English measurements used in the U.S., it is not clear what success those ISO based country specific varied EPDs will find in the U.S.

Among the loudest critics of the LEED v4 Materials & Resources credits related to EPDs is Perkins+Will architect Douglas Pierce, who authored a White paper, “LEED V4 Should Lead On Material Health Transparency By Accepting Only Environmental Product Declarations (EPDs) That Comply With the Federal Trade Commission’s (FTC) Truth in Advertising Law”. Pierce highlights that EPDs and their use in LEED V4 “have a large loophole related to toxicity”. The White paper argues that toxicity must be detailed or risk violating the Federal Trade Commission Green Guides.

The White paper is legally not correct, .. but who would seek legal advice from architects (even a well respected architecture firm like Perkins+Will)?  However, the White paper is useful in identifying the shortcomings of EPDs and in particular ISO based EPDs.

It is troubling that ISO 14025, specifying the procedures for developing Type III EPDs, was published in 2006, a long time ago in the realm of science and years before the current widely accepted ESEtox toxicity tool even existed.

USGBC has responded to the controversy:

USGBC believes that the coordinated use of EPDs, HPDs and raw material sourcing data – the path that’s been established in LEED v4 – generates information that can be practically acted upon in a way that USETox data reported in an EPD currently cannot be. However, the two paths are not mutually exclusive and USGBC applauds manufacturers who include USETox information as part of an EPD in addition to those that generated EPDs and HPDs.

The reliance on standards created by others, that is by a particular interest group for a limited purpose at a specific time, be it an ISO, ANSI, ASHRAE or other standard offers efficacy to a process or product, but is greatly problematic when the limitations of the standard are not appreciated.     

Of note, the federal government is moving toward EPDs not based on the ISO standards, but rooted in TRACI, as described in my recent blog post, EPA Seeks Comment on Ecolabels and Product Environmental Performance Standards thru February 25th.

USGBC has since the first version of LEED referenced third party standards and, on balance, it appears that LEED v4 has the bleeding edge materials disclosure ‘stuff’ just about right. And possibly of greatest import, many believe building product and material disclosure and optimization will, in short order, be a bigger business than LEED itself. Our law firm is working with a broad breadth of manufacturers and material suppliers, including their trade groups in this new era of EPDs.

All are invited to the mini symposium “Can Green Building Law Save The Planet?” at the University of Baltimore School of Law on March 26 at 5:30 p.m.  Susan Dorn, general counsel of the USGBC, Abbey Hopper, director of the Maryland Energy Administration, and others will be presenting with me. For details and to RSVP

EPDs are Among the Hottest Topics in Green Building

An environmental product declaration (EPD) is a method of quantifying the environmental impacts of a product. It is analogous to the nutritional label on a box of cereal. In the context of green building, EPDs will provide a way describing the environmental impact of a building material or product.

EPDs articulate the conclusions of a life cycle assessment. The aim of an EPD is to facilitate the comparison of the range of environmental effects attributable to a product in order to provide a sound basis for making informed decisions. 

Life cycle assessment is widely accepted to encompass 5 stages: raw material acquisition, manufacturing, transportation, use, and end of life.

U.S. EPA developed TRACI, the “Tool for the Reduction and Assessment of Chemical and other environmental Impacts” that assists in impact assessment for life cycle assessment. TRACI requires consideration of the 5 stages described above. And TRACI facilitates the characterization of environmental impact categories that have potential effects, including: ozone depletion, global warming, acidification, eutrophication, photochemical oxidation (smog), ecotoxicity, human health: criteria air pollutants, human health: carcinogenics, human health: non-carcinogenics, fossil fuel depletion, land use, and water use.

In the U.S. TRACI can provide most of the information required for an EPD. Product and company information would be added.

ISO 14025 (produced by the International Organization for Standards, the world’s largest developer of voluntary standards) describes an “environmental declaration”, as quantified environmental data for a product with pre set categories of parameters based on the ISO 14040 series of standards, but not excluding additional environmental information. The ISO standard establishes the principles and specifies the procedures for developing a Type III environmental declaration. Type III environmental declarations “are primarily intended for use in business-to-business communication, but their use in business-to-consumer communication under certain conditions is not precluded.”

In contrast to TRACI that was created specifically for the U.S. using input parameters consistent with U.S. locations, ISO 14025 was created to play a role in “regional eco-label programmes, such as the European Union Integrated Product Policy”. That observed, ISO 14025 is becoming the early benchmark for EPDs (possibly because Europe is ahead of the U.S. in this arena?).

This post is about Type III EPDs, which require an independent agency to oversee the EPD process, Of note, Type I environmental labels are multi criteria third party programs that award environmental labels to products meeting a set of predetermined requirements. And Type II environmental labels specify requirements for self declared environmental claims made by manufacturers, importers, distributors, retailers or anyone else likely to benefit from such claims.

All of this is new, in particular in the U.S. where EPDs are soon to be crucial in green building because LEED v4 and Green Globes both recognize EPDs. The new versions of IgCC 2015 and ASHRAE 189.1-2015 are each considering the use of EPDs. And while EPDs most directly contribute to LEED v4 point in the MRc1 and MRc2, they potentially have some role to play in 21 different LEED credits.

Not only are EPDs key in LEED v4, but EPDs are among the hottest topics in green building.

Some weeks ago I blogged, EPA Seeks Comment on Ecolabels and Product Environmental Performance Standards thru February 25th. And later this week I will continue the discussion of EPDs. 

All are invited to the symposium “Can Green Building Law Save The Planet?” at the University of Baltimore School of Law on March 26 at 5:30 p.m.  Susan Dorn, general counsel of the USGBC, Abbey Hopper, director of the Maryland Energy Administration, and others will be presenting with me. For details and to RSVP .   

You Can Participate in Updating the ICC 700 National Green Building Standard

With nearly 128 million residential housing units existed in the U.S., if green building is going to mitigate the negative impacts that human activity has on the planet, green building must include houses.

Preparations for the development of the 2015 version of the ICC 700 National Green Building Standard are underway and there are opportunities for you to participate. 

The ICC 700 applies to the design and construction of the housing units, including the residential portions of buildings. Today there are more than 30,000 ICC 700 certified homes and lots. By comparison there are over 50,000 LEED for Homes certified residential units; and in an earlier post I blogged that beginning February 1, 2014, LEED for Homes v2008 Update to be Balloted .

Home Innovation Research Labs has issued a call for Consensus Committee applications and proposed changes to the current ICC 700-2012. Home Innovation Research Labs is an affiliate of the National Association of Home Builders and will act as the secretariat of the code development process. While self titled a “standard” the ICC 700 is actually a code that can also be used as a rating system for third party verification of greenness.    

The 2015 version of the ICC 700 National Green Building Standard will be the third iteration of this residential code. It was originally developed by a Consensus Committee and approved in January 2009. The ICC 700 was updated in 2012 and approved in January 2013.

Home Innovation Labs has issued a call for members of the Consensus Committee that will be charged with developing the update, which will ideally include government officials, advocacy groups, home builders, product manufacturers, and other affected industry stakeholders in residential construction. The committee members and other interested parties will be assigned to task groups, each specializing in a different area such as energy efficiency, indoor environmental quality, or lot and site development. Those who would like to apply to serve on the Consensus Committee or a Task Group must submit their applications online by March 16, 2014.

Home Innovation also announced a call for proposed changes to the 2012 edition of the ICC 700. Individuals and groups can submit their proposed changes to the NGBS online by March 24, 2014. Task groups will review the proposed changes and develop committee proposals in early 2014.

The Consensus Committee will hold two hearings in Washington, D.C., in 2014. At the end of the second hearing, Consensus Committee members will take formal action on all proposed changes. Once the committee has completed its work, the newly updated ICC 700 will be submitted to ANSI for approval in early 2015.

In an earlier post I described how ICC 700 Residential Green Certifications Will More Than Double in 2014 creating huge opportunities. You can learn about those opportunities by participating in the new and updated ICC 700.

All are invited to the symposium “Can Green Building Law Save The Planet?” at the University of Baltimore School of Law on March 26 at 5:30 p.m.  Susan Dorn, general counsel of the USGBC, Abbey Hopper, director of the Maryland Energy Administration, and others will be presenting with me. For details and to RSVP .

Do Not Sell the RECs and Claim the Building Uses Renewable Energy

Owners of buildings that generate onsite renewable energy, with solar panels or otherwise, and sell the renewable energy credits (RECs) should not claim the building “uses renewable energy.” The term may be deceptive in that circumstance.

Similarly, building owners should not should not claim they have purchased RECs if the law already requires the activity that is the basis of the renewable energy. 

The uncertainty of the solar panel market and the fast changing industry that is in large measure supported by RECs, constantly raises questions about what marketing claims a building owner can make about renewable energy installations on their property.

The Federal Trade Commission issued revised “Green Guides”, 16 CFR Part 260, in late 2012 that are designed to help ensure that claims made about the environmental attributes are truthful and non-deceptive under Section 5 of the FTC Act, 15 U.S.C. 45.1. The Guides are administrative interpretations of the law. Therefore, they do not have the force and effect of law and are not independently enforceable. The FTC, however, can take action under the Act if a marketer makes an environmental claim inconsistent with the Guides. In a recent post to this blog I wrote FTC To Ramp Up Enforcement of Environmental Claims.

The Guides include specific language with respect to carbon offsets,  .. 

(a) Given the complexities of carbon offsets, sellers should employ competent and reliable scientific and accounting methods to properly quantify claimed emission reductions and to ensure that they do not sell the same reduction more than one time.

(b) It is deceptive to misrepresent, directly or by implication, that a carbon offset represents emission reductions that have already occurred or will occur in the immediate future. To avoid deception, marketers should clearly and prominently disclose if the carbon offset represents emission reductions that will not occur for two years or longer.

(c) It is deceptive to claim, directly or by implication, that a carbon offset represents an emission reduction if the reduction, or the activity that caused the reduction, was required by law.

The Guides offer an example:

An online travel agency invites consumers to purchase offsets to “neutralize the carbon emissions from your flight.” The proceeds from the offset sales fund future projects that will not reduce greenhouse gas emissions for two years. The claim likely conveys that the emission reductions either already have occurred or will occur in the near future. Therefore, the advertisement is deceptive. It may not be deceptive if the agency’s website stated “Offset the carbon emissions from your flight by funding new projects that will begin reducing emissions in two years.”

As onsite renewable energy, including solar installations, become more common so too will questions become more common about what can be claimed about those installations.

All are invited to the University of Baltimore School of Law symposium “Can Green Building Law Save The Planet?” on March 26 at 5:30 p.m.  Susan Dorn, general counsel of the USGBC, Abbey Hopper, director of the Maryland Energy Administration, and others will be presenting with me. For details and to RSVP.



The Wild West of Solar Renewable Energy Credits

The closing of the doors last week at a mid-Atlantic states solar installer highlights the uncertainty of the photovoltaic market and brings to the fore the vagrancies of renewable energy credits (RECs) and in particular solar renewable energy credits (SRECs).

Renewable energy credits are tradable, non-tangible energy commodities that have value and are creatures of state law. Given that this most recent failed solar installer was based in Maryland, one of thirty states that created a RECs market, Maryland law is a good place to start. 

Maryland's Renewable Energy Portfolio Standard law, originally enacted in 2004 and revised almost every year since, requires all electricity utilities use renewable energy sources to generate a minimum portion of their sales. Currently being phased in, the law requires that 2% of the energy come from solar-photovoltaic by 2020.

Under Maryland law, an SREC represents the generation attributes of 1 megawatt-hour (MWh) of electricity generation from a solar installation. Electricity suppliers must purchase and retire SRECs in order to meet their compliance obligations under the law, or pay a Solar Alternative Compliance Payment (SACP) for any shortfalls in SREC purchases. The SACP operates as a theoretical ceiling on the price that a supplier would pay for SRECs to fulfill their obligations. (In Maryland the SACP is set at $400 per MWh though 2014.)

All net metered utility customers and solar on site generators in Maryland own SRECs produced by installations unless or until they choose to sell or otherwise transfer SRECs to another party. A Maryland SREC has a three year lifetime during which it is valid for compliance. SRECs represent a significant source of revenue for owners of solar installations, with a value determined by demand in the trading market.  

In order to begin producing SRECs, a solar installation owner must apply for a one time certification from the Maryland Public Service Commission. In general, a photovoltaic installation must be connected to the distribution grid serving Maryland in order to meet a utility's obligation. Owners of photovoltaic systems of 10 kilowatts or smaller (Level 1 solar facilities) may use an approved engineering estimate in lieu of metering and providing annual generation data.

Unique to Maryland, solar generators in Maryland are required to offer SRECs for sale to Maryland electricity suppliers prior to offering them for sale to any other buyer. In order to help generators comply with this requirement, the PSC operates a web site where generators can post SREC offers. Since October 1, 2010, SREC purchase contracts directly between a solar generator and a Level 1 solar facilities, must take the form of a single, up-front payment arrived at by calculating the net present value of SRECs over the life of the contract using a standard SREC value of 80% of the SACP and federal secondary credit interest rate in effect as of January 1 of that year as the discount rate.

But that is it. There are few, if any other laws in Maryland or elsewhere about SRECs, including the sale of SRECs by third party marketers. There is no national registry of RECs issued. This law firm has given opinions on RECs transactions that RECs are properly accounted for and no double counting has taken place, but it is the Wild West out there.

As government increasing seeks to implement energy policy by requiring utilities purchase more renewable energy and with the ASHRAE Standard 189.1 requirement that every building be designed to be ‘renewable energy ready’ coupled with that standard’s prescriptive energy path requiring on-site renewable energy, photovoltaic installations will become significantly more common.   

The Best Kept Secret in Green Building - a Conversation with Jerry Yudelson

I had a conversation with Jerry Yudelson last week, six weeks after he became the President of the Green Building Initiative, .. the non profit with the rights to distribute Green Globes in the United States. 

Jerry is known to many in the green building world. He was a cofounder of the first USGBC chapter. And  in the room when the Greenbuild convention and expo was conceived. He served on the USGBC national board of directors and he has been a prolific author and speaker about all things green building, including LEED. So, some were surprised when he assumed the helm of the Green Globes organization.

But any shock at Jerry’s new job is resoundingly suppressed when you hear him say that with more than four and a half million commercial buildings in the U.S., we have certified less than one percent of them as green. He describes his job as “not to get you to change from Protestant to Catholic, but rather to convert those with no religion to green building.”

Jerry readily acknowledges with less than 1,000 Green Globes certified projects in the U.S. such is less than a five percent market share. He confidently says his goal is to increase certification to more than 10,000 in the next five years.

He suggests that expanded brand acceptance and market share will be lead by Green Globes’ independent onsite assessor model, something that differentiates his rating system from others. Not to mention that that his rating system is better, faster and cheaper.

Jerry sounds cautiously optimistic about both the changes in GSA and DoD policy in recent months to allow government projects to pursue Green Globes, but he points out that now individual agencies must see a benefit. And he sees the real benefit being GBI’s standalone software feature providing an assessment of the federal government’s Guiding Principles for new construction, with a report detailing compliance.

Touting his motto, “It is green building for practical people” Jerry sees the larger growth opportunity in the private sector, from retail to healthcare. And while the certification system is weighted heavily toward energy performance (390 of 1,000 possible new construction points), the new version of Green Globes launched in 2013, allows a project the flexibility to select between four paths for demonstrating energy compliance. He doesn’t disagree that some will be drawn to the fact that the cost of pursuing Green Globes is half the cost of LEED, in large measure because there is no need for specialized consultants, but Jerry wants to talk about the value added of Green Globes’ independent assessors who bring their professional judgment when visiting each site.

He does not advocate mandatory green building laws for private building and he sees a benefit of allowing the freedom of the marketplace to control this rapidly changing field, where performance counts.

Jerry makes clear the number one issue in green building today is the value added proposition. Green building must provide value or the whole industry will be out of business in ten years.

And while he has only been on the job since January 6th, it is clear the recent announcements of Whole Foods stores and Fidelity Investor Centers pursuing Green Globes are representative of perceived value he is pursuing in retail.     

It is clear that Jerry wants us all to know about “the best kept secret in green building.” 

And you can do that for free. The Green Globes Professional Credential online training program is available without charge through April 15, 2014.

Pollution Legal Liability Insurance More Valuable as a Result of High Court Ruling

Insurance companies cannot recover environmental cleanup costs paid to their insured under the federal Comprehensive Environmental Response, Compensation and Liability Act, commonly known as Superfund, from another Potentially Responsible Party (unless their insured had first pursued a separate claim to recover the cleanup costs from that PRP). 

CERCLA was enacted in the wake of the discovery of toxic waste dumping such as Love Canal and Times Beach in the 1970s, The CERCLA process can be complex and toxic waste cleanup costs commonly run into the Millions of dollars, but the aim is the cleanup of toxic sites.

Insurance has become a mechanism for managing the risk of unanticipated costs incurred to clean up a property that an owner may have acquired not knowing it was contaminated or that may later become contaminated from migration of toxics onto the property. Among the most common of the insurance coverages is a pollution legal liability policy.

In this potentially far reaching case, the U.S. Supreme Court declined to review a decision of the Ninth Circuit Court of Appeals in Chubb Custom Insurance Company v. Space Systems/Loral, et al, leaving that decision in place.

Chubb had issued a pollution legal liability insurance policy to Taube-Koret Campus for Jewish Life covering, among other things, possible remediation costs related to certain pollution incidents on its property.

Pursuant to the policy, Chubb ultimately paid Taube-Koret $2.4 Million as reimbursement for Taube-Koret’s cleanup costs of contaminants that migrated onto its property. The gravamen of Chubb’s complaint was that Loral and others should be held jointly and severally liable for Taube-Koret’s costs because they released the toxic substances that migrated to Taube-Koret’s property from surrounding land that they owned and operated at various times.

The Ninth Circuit held that the insurance company lacked standing to bring suit under CERCLA § 107(a) because “it” did not incur any “costs of response” related to the cleanup of a polluted site, and because the common law principle of subrogation does not apply to § 107(a). The court held that the insurance company could not bring a subrogation claim under CERLCA § 112(c) because the company did not allege that the insured was a “claimant,” or that it had made a claim either to the Superfund or to a potentially liable party.

This is clearly among the most definitive CERCLA decisions in recent years. And the Supreme Court’s denial of certiorari review makes certain that the CERCLA statute allows recourse to recover money spent on environmental cleanups as expressly authorized by Congress when creating the law; and, having the result of making environmental insurance more valuable.   

Model Sustainability and Green Building Initiatives for a More Verdant City and Town

A package of local government bills introduced on January 29th aim to ensure that Montgomery County, Maryland remains at the sustainability forefront. The legislation submitted by Councilmember Roger Berliner is a model for local government environmental and energy initiatives, at a time when there is an anti-LEED v4 bill in the Maryland legislature, and we provide a link to each bill with the thought that these may inspire other cities and counties: 

Bill 2-14 would require owners to benchmark the energy use of certain buildings and retro-commission certain building systems to improve their energy efficiency. Modeled after laws in New York, Chicago, and the District of Columbia, this bill is designed to work with the County’s recently enacted PACE program to create market based incentives for building owners to increase energy efficiency.

Bill 3-14 would require newly constructed buildings of 10,000 square feet or more or extensively modified buildings to achieve a Silver certification in the appropriate LEED rating system. Current laws require those buildings to achieve a LEED Certified certification. 

Bill 4-14 would require any contract that the County enters into to maintain street lights to be with a company that will install LED lights that are more energy efficient and requires less maintenance.

Bill 5-14 would require the County government to submit an analysis of “the social cost of carbon” with certain capital projects in the County capital budget. The bill articulates that the “external” costs of conventional fuels, particularly coal, extracts a cost on society and that those costs should be factored into the cost/ benefit calculations that the County uses.

Bill 6-14 would create an Office of Sustainability.

Bill 7-14 would create a preference for a certified green business in the County's procurement of goods and services.

Bill 8-14 would require new or extensively remodeled buildings for which County government finances at least 30% of the costs, to generate at least 1 kilowatt of renewable energy for every 1,000 square feet of floor area.

Bill 9-14 would require that 50% of the County's electric power usage be supplied with renewable energy by Fiscal Year 2015 and 100% by 2020.

Bill 10-14 would require the County to implement an expedited review process for permits to install rooftop solar photovoltaic systems and charge reduced fees for those permits.

Bill 11-14 would require the County to implement an expedited review process for permits to install electric vehicle charging stations and charge reduced fees for those permits.

The County has also been discussing adopting the International Green Construction Code as an option in addition to the use of LEED, but that legislation is not part of the package introduced.

This local effort needs to be viewed against the backdrop of pending HB 207 in the Maryland legislature, a bill with legs, that would repeal the existing statewide requirement that state funded construction be LEED Silver certified, including schools in Montgomery County (which school community is supporting the bill).  

Appreciate also that Montgomery County, situated just north of Washington, DC,. is the 11th wealthiest county, by household income, in the country. The County Council in all Democrat and very Blue. It may have the highest concentration of LEED projects per capita of any local jurisdiction. It is already a very green place and this legislative package, that admittedly would not (.. and possibly should not) be politically possible most places in the country, will only make Montgomery County more verdant.

If Green Building is Going to Save the Planet it Will Have to Include Green Roads

There are 3,980,817 miles of roads in the United States. Roads are the largest built structures we come into contact with and yet they are so ubiquitous and familiar that they have become an impervious given, the dark matter of the motor vehicle cosmos.

The amount of impervious roads is equivalent to the size of the state of Ohio. And the negative environmental impacts associated with those impervious surfaces are daunting. 

Additionally, road building consumes a lot of energy. Building a one mile long single road lane uses as much energy to build as 50 American households in a single year.

But when society thinks about green building, those thoughts are almost universally of buildings (be it offices or schools or homes) and not of infrastructure like roads and bridges. As sustainability increasingly becomes a mainstream concern, one of the strategies some government departments of transportation have adopted for providing a more sustainable approach is a “green streets and highways rating system.”

Similar to LEED certification for buildings, emerging sustainability initiatives for roads are just beginning to pick up speed across the nation and there is no current widely accepted standard or practice for rating green roads.

Established in 2010 and gaining traction today, Greenroads Foundation is an independent nonprofit advancing sustainability education and initiatives for roads. As the developer of the Greenroads Rating System, the foundation manages the review and certification process for sustainable roadway and bridge construction projects in the U.S. and internationally.

The Greenroads rating system was the first third party, point based system available to certify sustainable roadway and transportation infrastructure projects. The system provides metrics to measure the effect of design and construction practices implemented on a project to earn points toward one of four awards, called "Ratings."

The Greenroads Rating System is a collection of sustainable roadway design and construction best practices that encompass water, environment, access, community impact, construction practices and materials. Each practice is assigned a point value according to its contribution to road sustainability.

At a minimum, there are 11 "Project Requirements” that must be completed in order for a road to be considered a Greenroad. There are also 37 "Voluntary Credits" that a project team can choose to pursue. Greenroads assigns a project score based on the number of points amassed by meeting the requirements and achieving credits. This score translates to one of four certification levels: Bronze, Silver, Gold and Evergreen. The Greenroads Manual is available without cost.

It is applicable to all types and sizes of road projects, including new, rehabilitation, reconstruction, preservation, overlay and bridge projects.

Greenroads provide environmental and economic benefits. In terms of lifecycle costs, a Greenroad costs less because the materials, technologies and systems used make it more durable, so it requires less and less environmentally damaging maintenance.

More than 100 projects of various types, sizes and stages of design and construction have been used as case studies to test and refine the Greenroads Rating System.

If green building is going to save the planet, society will have to think with a broader mindset than only buildings and Greenroads need to be at the forefront.