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

forestry usda gov

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.

and

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.

and

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) (www.treefarmsystem.org), the Canadian Standards Association Sustainable Forest Management Standard Z-809 (CSA-SFM) (www.csasfmforests.ca), the Forest Stewardship Council (FSC) (www.fsc.org), the Programme for the Endorsement of Forest Certification schemes (PEFC) (www.pefc.org), and the Sustainable Forestry Initiative (SFI) (www.sfiprogram.org).

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

aia x

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.

Wipe Out Zika Virus Carrying Mosquitoes with Pesticides

mosquito cdc dead

“Mosquito borne diseases are among the world’s leading causes of illness and death today. The World Health Organization estimates that more than 300 million clinical cases each year are attributable to mosquito borne illnesses. Despite great strides over the last 50 years, mosquito borne illnesses continue to pose significant risks to parts of the population in the United States.” Those words are not hyperbole from a pesticide manufacturer, but are the opening words of the joint statement on mosquito control from the U.S. Environmental Protection Agency and the Centers for Disease Control and Prevention.

Zika virus, that is spread to people primarily through the bite of an infected Aedes species mosquito, has become a matter of real concern.

Local mosquito borne transmission of Zika virus has recently been reported in Puerto Rico, the U.S. Virgin Islands, and America Samoa. No local mosquito borne Zika virus disease cases have yet been reported in continental U.S., but there have been travel associated cases.

In response to my recent blog post, LEED Buildings and the Zika Virus, I received numerous inquiries about pesticides and determined to post this general explanation about pesticides. Pesticides for mosquito control in the curtilage of buildings generally fall into three categories:

Controlling mosquitoes at the larval stage, in water on the property before they can mature into adult mosquitoes and disperse is considered by many professionals to be ideal. Liquid larvicide products are applied directly to water (e.g., storm water management ponds, landscaping features, etc.) using backpack sprayers and truck mounted sprayers. Tablet, pellet, granular, and briquet formulations of larvicides can also be applied. While there are a number of active ingredients used in larvicides, among the most popular is methoprene.

Controlling adult mosquitoes is most common in the U.S. Adulticides are commonly the organophosphate insecticides malathion and naled and the synthetic pyrethroid insecticides prallethrin, etofenprox, pyrethrins, and permethrin (although, despite that permethrin has been among the most widely used in the Americas it appears of dubious efficacy in killing Aedes mosquitoes today). Mosquito adulticides are applied as ultra low volume (i.e., the sprayers dispense very fine aerosol droplets that stay aloft and kill flying mosquitoes on contact), typically less than 3 ounces per acre, which minimizes exposure and risks to people and the environment.

Typical of government in this arena, EPA action has had the practical effect of banning the effective and inexpensive insecticide temephos, when the agency required new safety testing that would have cost Millions of dollars forcing the manufacturers to stop producing it. But for immediate use, there are large stockpiles.

Misting systems are becoming increasingly popular. Popular in recent years for residential use, timed release outdoor misting systems well control mosquitoes at specific locales. The insecticides most often used in outdoor misting systems contain the same pyrethrins and permethrin.

EPA, as well as the CDC and many mosquito control professionals, believe that a combination of approaches is most effective at combating mosquito populations in the built environment. For example, mosquitoes breed in water, so the elimination of standing water around buildings is an essential part of any approach to controlling mosquitoes. Because mosquitoes may travel miles as adults, any management efforts, including still theoretical genetic modification of male mosquitoes, may provide only temporary control.

Make no mistake, mosquitos kill more people than any other animal, annually, and in the history of humans.

And such does take into account Zika virus babies born with malformed brains or adults suffering the progressive paralysis of Guillain Barre syndrome.

Even E.O. Wilson, the well known evolutionary biologist and a champion of biodiversity, argues that the Aedes mosquito should be targeted, its DNA preserved and the species wiped out.

With Zika virus sweeping through South and Central America and the warm weather of Spring coming to North America, the outbreak requires an immediate response by building owners with pesticides.

Across the continental U.S. and certainly now in locales like the counties in Florida that are subject to Governor Rick Scott’s Executive Order 16-29, and expressly including LEED buildings with insect management plans, building owners should  make certain those plans are appropriate and correctly implemented given what we know about Zika and other mosquito borne illnesses, including applying pesticides to kill mosquitoes.

There are federal, state and local laws that vary across the country about pesticides, but government has failed to protect people from mosquitoes. EPA’s required labeling admonition is prudent, “Pesticide labels provide instructions about proper handling, use, and application rates of the product, and precautions to protect people and the environment.” Read the label. And then, do the right thing (.. yes, there is much more than only mitigating risk for landlords), apply pesticides to wipe out Zika virus carrying mosquitoes.

USGBC Making Significant Change to LEED 2009

LEED 2009

The U.S. Green Building Council has just announced that all new projects registering for LEED 2009 beginning on April 8, 2016 will need to satisfy increased minimum energy performance thresholds.

USGBC reported the results of the balloting with 78.6 percent of the consensus body voting in favor of this change to the 7 year old rating system. By the Foundations of LEED rules, a minimum of two thirds approval was needed for any balloted measure.

With this change, projects must now earn a minimum of four points in the Energy Performance credits. The referenced energy standard and modeling requirements in LEED 2009 will not change; buildings falling under the proposed change can use the same methodologies and referenced standards, but will need to earn additional points in order to achieve certification.

This change is significant both in that it will no doubt increase first costs of most LEED projects when those projects will have to satisfy increased minimum energy performance thresholds and in that it is a change to a longstanding approved rating system that is the benchmark in green building laws, construction contracts, and more.

Recall that Rick Fedrizzi, retiring USGBC CEO, announced on October 29, 2014 that users would be able to register projects under the LEED 2009 rating system until October 31, 2016. That extension was occasioned by the delay in LEED v4. Thus, this change will apply to LEED 2009 projects registering between April 8, 2016 and October 31, 2016 (the last day to register a project under LEED 2009).

Today, the Minimum Energy Performance prerequisite, using Option 1, Whole Building Energy Simulation, requires that the applicant,

Demonstrate a 10% improvement in the proposed building performance rating for new buildings, or a 5% improvement in the proposed building performance rating for major renovations to existing buildings, compared with the baseline building performance rating.

The changed credit language is,

For projects that register after 04/07/16 and are subject to the four point mandatory minimum, demonstrate an 18% improvement in the proposed building performance rating for new buildings, or a 14% improvement in the proposed building performance rating for major renovations to existing buildings, compared with the baseline building performance rating.

As indicated above, the referenced energy standard and modeling requirements do not change and still require the applicant to calculate the baseline building performance rating according to the building performance rating method in Appendix G of ANSI/ASHRAE/IESNA Standard 90.1-2007 (with errata but without addenda 25) using a computer simulation model for the whole building project. That is, this is not a move to the newer 2010 version of the ASHRAE 90.1 standard.

You can read the specific changes in the Rating system document.

Note, also new point thresholds are provided for different building types (e.g., health care) to align the effective percent increase in performance. Each of those is best identified in the Summary of changes.

It is difficult to argue against increasing energy efficiency, but this change to LEED 2009 may have a destabilizing effect from changing a rating system midstream, with little advance notice, cutting against the certainty that the real estate industry craves (.. even in this instance when the window will only be for those projects registered with GBCI through October 31, 2016). Given that most building projects are budgeted, programmed, planned and designed over a period of years, to propose a substantive change that will have significant first cost impact, to be effective in a matter of weeks, will reverberate throughout the building industry and, no doubt, expose participants to increased liability for this not programmed change. Additionally, projects attempting to comply with governmental mandates or contractual obligations for LEED certification may create jeopardy.

You are urged to consider the impact this may have, and in particular will have on projects not yet registered, with the thought that all projects contemplating pursuing LEED 2009 should now be registered by April 7, 2016, in advance of the effective date of the change.

Everyone involved with LEED projects should promptly review their contracts to determine the implications from this change in LEED and additionally what amendments to contracts may be necessary and proper

Sustainable Agriculture Standard Announced

Agriculture

Recent foodborne illness outbreaks at Chipotle despite use of ingredients that are “organic, responsibly raised meats, pasture raised dairy,” and “non GMO” have left consumers looking for better and other standards for agricultural products. Almost on cue (despite being in the works for more than 4 years), Leonardo Academy has announced that its LEO 4000 National Sustainable Agriculture Standard is now available for use.

Leonardo Academy is well respected, including for its work on the LEED Existing Building standard, for its non-profit model of “leveraging the competitive market to advance sustainability.”

Because today there is no single widely used sustainable farm product standard, it is not possible to know if Chipotle’s safety record is better or worse than any other major chain restaurant. Just as it is not possible to characterize Whole Foods drop in store sales as because other grocers are offering natural and organic products. Balancing the obvious desire not to be sickened by an agricultural product against the negative externalities of the large industrial agricultural complex, Leonardo reports 76% of Millennials say it’s important that the food products they purchase and consume are produced in a sustainable way.

While Rainforest Alliance Certification, Fair Trade Certification, Certified Organic and many more are already in the market, there is little if any standardization as to what is a healthy and sustainable food. LEO 4000 responds by defining “what constitutes sustainable agriculture.”

After a more than 4 year ANSI development process, LEO 4000 provides sustainability guidance to agricultural product producers (now plants and in the future animal products) including metrics for levels of achievement and third party verification.

The goal is to strive for performance based methods rather than practice based metrics. For example, set a target by requiring that water use per acre be less than X gallons (or acre feet) per acre (i.e., a performance based metric) as opposed to requiring that only irrigation equipment from an approved list of low water use equipment can be used (i.e., which would be a practice based metric).

LEO 4000 has 4 levels of performance: Bronze, Silver, Gold, and Platinum. The Standard has perquisites, general indicators (of which 80% must be achieved), and optional indicators (of which 20% must be earned), each of which are organized into categories: general, environmental, social and economic. Key is preparing a Producer Sustainability Plan that documents all of this.

Among the environmental issues addressed are agrochemicals, water resources, biotic resources, energy resources and use, and waste management. The social issues are likewise quite broad and include wages and benefits, work agreements, child labor, health and safety, worker housing, and the like.

One knock on the new standard is that a Leonardo Academy licensed third party verifier must be used except that for an initial year producers can self certify at the Bronze level.

While the obvious users of LEO 4000 are producers, from family farmers to corporate producers, the standard will also allow for simplified specification in procurement, including a streamlined system for maintaining traceability by food processors and suppliers, including retailers, food service suppliers and restaurants.

The public wants sustainably produced agriculture. The private sector can do more and better than the government has done or is capable of doing. So is it too farfetched to envision a shopper asking for sustainable carrots?

LEED Buildings and the Zika Virus

mosquito cdc

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

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

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

As of February 11, 2016, the Centers for Disease Control and Prevention advises Zika is not currently found in the U.S.; however, the mosquitoes that can carry Zika are found in some areas of the U.S.

While removing standing water is useful and window screens have some limited productiveness, the only truly efficacious control of the deadliest creatures on the planet is the application of mosquito killing insecticides.

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

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

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

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

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

It is not that a LEED certified building has an increased likelihood of liability arising from Zika, but rather it is that any building owner with an announced insect management plan may trigger liability. Moreover, without taking a position on whether aedes mosquitoes should be wiped off the face of the Earth with only their DNA kept for future research, building owners can do the right thing in protecting building occupants by applying mosquito killing insecticides.

Across the U.S. and certainly in locales like the counties in Florida that are subject to Governor Rick Scott’s Executive Order 16-29, building owners with insect management plans should  make certain those plans are appropriate and correctly implemented given what we know about Zika and other mosquito borne illnesses and consider the application of insecticides, including evaluating the need to apply insecticides to kill mosquitoes.

More Robust Enforcement of SEC Climate Change Disclosures

SEC Headquarters

A great deal of attention has been paid in recent days to a 5 year old Securities and Exchange Commission guidance, “Commission Guidance Regarding Disclosure Related to Climate Change,” which seeks to provide transparency to investors on the material risks posed by climate change.

Recently The Los Angeles Times reported Exxon Mobil is under investigation by California Attorney General Kamala Harris over claims that the company “lied about climate change risks” in statements the company made to investors.

Last November, in a settlement with New York Attorney General Eric T. Schneiderman, Peabody Energy said that it would disclose more about climate change risks in its regular filings with the SEC. That same month the same attorney general’s office confirmed it sent Exxon Mobil a subpoena for climate change information. And while oil companies and the coal industry have been targets of activists, this is not a fossil fuel industries issue.

In a recent letter 35 members of Congress wrote to the SEC expressing concern “about the level of scrutiny the SEC is utilizing to robustly and effectively enforce” the 2010 guidance. Adopted by the SEC commissioners in a 3 – 2 split vote, the 2010 guidance made clear SEC disclosure requirements for public companies on the impact that “climate change may have on its business.”

I wrote in a blog post last August that our law firm had at that time received more inquiries than in all recent years combined about those SEC climate change disclosure requirements. That level of inquiry is across a broad breadth of public companies and actually peaked in late 2015 (even continuing in early 2016) in anticipation of 10-K filings.

The 5 year old guidance is taking on new politically charged significance where students at the Columbia University Energy and Reporting Fellowship, in concert with The Los Angeles Times, last year published stories about Exxon Mobil’s disclosures, which media sources were heralded by both the New York and California attorneys general.

While data culled from filings of public companies listed on U.S. stock exchanges reveals that last year nearly one third of companies made an SEC climate change disclosure, it is clear that a much larger number of companies undertook “management discussion and analysis” of these requirements.(.. arguably all public companies should have untaken the analysis).

A variety of public companies have expressed concern that some state laws, like New York have a lower threshold than the SEC (i.e., not requiring an intent to misrepresent or withhold information) which makes more urgent corporate discussion and analysis of possible disclosures about climate change.

And it is anticipated by commentators that the SEC will in the future more robustly enforce the climate change guidance.

Climate change has become a topic of intense public discussion in recent years. Scientists, government leaders, regulators, businesses, investors, and the public at large continue to express heightened interest in the subject. Existing disclosure requirements as they apply to climate change are concomitantly evolving and broadening. We continue to assist corporate counsel, both through our law firm and non law subsidiary, in satisfying their environmental disclosure obligations under federal and state laws and regulations.

TSCA on the Cusp of being Overhauled by Congress

LEED Materials and Resources credits LEED Materials and Resources credits

The federal Toxic Substances Control Act (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 TSCA has not kept pace with the marketplace and Congress is on the cusp of overhauling the law and affecting a very large number of industries and business not currently regulated under the law.

The current abstract impressionism of a regulatory scheme exits because of the perception that TSCA is no longer an adequate tool for providing protection against chemical risks, includes a patchwork of state laws that vary from the restrictive Washington state Children’s Safe Products Reporting Rule to no regulation in some states, is made more complicated by non governmental programs like the USGBC’s LEED green building rating system that incorporates Materials & Resources credits including building product and material ingredient disclosure and optimization.

Seeking greater certainty and predictability business has by and large supported the current Congressional efforts.

Some perspective is likely appropriate because 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 actually been banned under the law.

On December 17, 2015 the Senate, in a move that surprise many, voted unanimously to approve the legislation approved by the House of Representatives on June 23, 2015 by a 388 to 1 vote.

Specifically, the Senate did not vote on SB 697, but rather passed HR 2576 after amending that House bill “to strike all after the enacting clause and insert” the text of SB 697. Approved by voice vote, without a printing of the amendment, the text appeared in in the Congressional Record daily edition of that date.

Appreciate that the House passed version is 46 pages in length while the Senate passed bill is 211 pages long. And despite that the Senate version offers much more detail and provisions absent in the House bill, the House bill does contain several provisions not found in the Senate version.

The House could now vote to accept the Senate version. Also possible, an amendment exchange could take place between the two bodies to resolve the differences (arguably the Senate has already commenced that process) but the Congressional leadership has not announced a schedule for moving forward. However, it is more likely a conference committee will be empaneled to seek reconciliation.

Substantively, it appears the Senate bill as amended does not address EPA’s expressed concerns about the preemption provision that allows states to regulate a chemical while EPA evaluates it for safety. Given the length of time it may take for such an EPA assessment (proposed to be “only” up to 5 years under the bill), this is more than a dormant Commerce Clause theoretical Constitutional issue to businesses that may be impacted.

The bill broadens prioritization for screening chemicals to give a preference for chemicals scoring high for persistence and moderate or high for bioaccumulation as well as certain subsequently identified chemicals that are known human carcinogens and have a high acute and chronic toxicity ( .. think asbestos). The amendments also made a preference for broad categories of chemicals stored near a significant drinking water source (.. think Elk River, West Virginia chemical spill).

The new TSCA greatly expands EPA’s already broad chemical regulatory authority and all businesses should determine how they may be impacted. It should also portend revisions to LEED materials credits and other nongovernmental standards pegged to federal and state laws. If we can assist your business in appreciating and taking advantage of federal and state regulation of chemicals, do not hesitate to give Stuart Kaplow a call.

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