Green Building Law Update : Green Building & Construction LEED AP, Lawyer & Attorney Chris Cheatham : Washington DC, Virginia, New York City

I continue to be amazed by the lack of litigation stemming from the LEED certification process - i.e. LEEDigation.  There are only two instances of pure LEEDigation - Shaw Development and Northland Pines.  I'm not even sure Northland Pines counts since it has not resulted in a lawsuit.  

What factors have contributed to the non-litigious nature of the LEED rating system so far?

Enforcement 

The recent Northland Pines High School LEED certification challenge was a bellwether as to how the United States Green Building Council plans to enforce the LEED rating system.  The USGBC made it clear that it was not interested in de-certifying buildings.  If the USGBC continues to work with owners, designers, and contractors to remedy green buildings instead of yanking LEED certification, then the chances for LEEDigation remain small.  

Goodwill

Prior to the Great Recession, many building owners developed green buildings for non-financial reasons.  When there were fewer LEED buildings, obtaining certification ensured press clippings and adoring fans.  It is difficult to measure loss of goodwill if a project fails to obtain a certain level of certification.  As LEED buildings have become more common, and green building regulations more prevalent, owners are demanding LEED certification for financial reasons (higher tenant demand, lower operating costs, increased productivity).  As financial reasons increase in importance, the chances for LEEDigation increases.  

The Economy

The Great Recession was certainly not a good thing, and the legal industry was not spared:  "As of April 8, 2010, over 14,696 people have been laid off by major law firms ... since January 1, 2008."  These layoffs occurred because there was a decrease in the demand for legal services, including litigation.  The construction and real estate industries were particularly hard hit by the recession, and demand for litigation from these industries correspondingly dropped.  The green building industry may have avoided significant LEEDigation because parties were less willing to engage in costly litigation. 

Do you have any theories as to why LEEDigation has not developed? 

Photo Credit:  w0ld

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

This blog post has nothing to do with green building.  It has everything to do with you and me.  

Something transformational is going on in the world right now; or at least in my little sliver of the world.  People are changing jobs left and right.  During the last few years of the Great Recession, everyone hunkered down and tried to hold on tight to their existing jobs.  But now that there is a glimmer of economic hope, people are itching to pull the trigger on new jobs or ventures.

I pulled the trigger.  I left my law firm job to launch a consulting firm -- Cheatham Consulting, LLC. 

By launching a own consulting firm, I now have the flexibility to respond to the needs of the construction industry.  Over the last few years, there were so many times that I was contacted by one of you with a great idea or a question.  Unfortunately, my rates and the time demands of my job prevented me from collaborating with many of you.  

I am done with that.  Let's figure out how we can work together to solve the problems that are facing the construction industry.  Eventually, I will introduce you to the services of Cheatham Consulting.  But for now, I just want to hear from you and hear about what you are doing or where you have moved to.  Please send me an email (chris@cheathamconsulting.com) or call me (202-553-3181) or leave a comment or a tweet or head over to the Green Building Law Update Fanpage and let me (and everyone else) know what you are up to. 

What's going on in your world? 

Photo Credit: hownowdesign

• Email This
• Print
• Comments (4)
• Trackbacks
• Share Link

"A Public-Private Partnership (PPP) is a contractual agreement between a public agency (federal, state or local) and a private sector entity. Through this agreement, the skills and assets of each sector (public and private) are shared in delivering a service or facility for the use of the general public. In addition to the sharing of resources, each party shares in the risks and rewards potential in the delivery of the service and/or facility."

But P3 practices are also being used for green building projects.  For example, the General Services Administration recently entered into a P3 lease agreement for a new campus to house the National Nuclear Security Administration's Kansas City manufacturing operations, which are seeking LEED Gold certification:

"The Heartland Region of the General Services Administration on Monday signed the final lease agreement with CenterPoint Zimmer LLC for a new campus to house the National Nuclear Security Administration’s Kansas City manufacturing operations. . . .

CenterPoint Zimmer, a subsidiary of CenterPoint Property Trust of Oak Brook, Ill., will receive annual rent of $61.5 million through the 20-year lease for a total contract amount of $1.23 billion.  Stephen Stanberry, the GSA contracting officer who worked on the lease, said it is a “net of utilities” leasing, meaning the NNSA will pay its own utility costs.

In return for the NNSA lease payments, CenterPoint Zimmer will develop the new campus. . . ."

My friends at J.E. Dunn will be constructing the project.

If you have questions about P3s, please let me know and I will do my best to address them in future posts.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Despite my previous suggestion that the USGBC's Greening the Codes could have done without the history of building codes, I do think it offers an interesting history lesson.  This paragraph caught my attention:   

The energy crisis of the 1970s brought yet another topic to the national stage. The soaring costs of energy and a growing concern about pollution and natural resource conservation caused Congress to pass the Energy Policy and Conservation Act that in 1978 would require states receiving federal funds to initiate energy conservation standards for new buildings. That same year, the State of California led the nation by adopting the California Energy Code, recognizing that energy consumption gone unchecked yields societal costs to consumers, to the economy, to the environment and ultimately to public health. It would take a number of compounding factors in the 1990s to revive this interest in building energy efficiency that ended up otherwise largely lost to other priorities in the 1980s.

The more recent surge in support for green building looks eerily similar to the 1970s.  
I have always thought that the most recent green building trend really took hold in 2008, just as gas prices skyrocketed.

Congress then included billions of dollars for the green building and renewable energy industries in the American Recovery and Reinvestment Act that passed in February 2009.  In order to receive some of the stimulus funds, Governors had to make promises to improve state building codes.  At the state level, California became the first state to adopt a mandatory, state-wide green building code in January 2010.

History teaches us that this combination - the federal government and then California push green building codes forward - tends to repeat itself. 

If history repeats itself, what lessons can we learn from the last cycle of green building support?  The 1970s saw a wave of sick building syndrome cases.  After building envelopes were tightened -- but ventilation remained the same -- the occupants grew ill from the indoor environment.  Concerns are already starting to emerge about indoor air quality in this cycle's green buildings.  

Any other lessons I missed?

Photo Credit: Stuck In Customs

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

The United States Green Building Council (USGBC) recently published a white paper entitled "Greening the Codes" that is simultaneously very helpful and somewhat frustrating.  The most important information is buried on page seven after an unnecessary review of the history of building codes.  But if you can get through the first six pages, you will find that the USGBC has made an important statement, although one that could have been made more boldly:  

"Raising the Floor: While green building rating systems such as LEED have been designed to benchmark above-code leadership for buildings that intend to go beyond the minimum, it is equally important to complement this leadership with stronger, more comprehensive building codes. Safer, healthier, and more environmentally responsible codes are at the heart of sustainability planning for raising the floor for the entire community. These codes are a viable new baseline off which incentives for exemplary leadership and commitments for public buildings to pave the way can naturally be built.

For commercial buildings: Consider adopting the International Green Construction Code and its technically rigorous 189.1 compliance path.

For residential buildings: In addition to adopting and implementing the 2009 International Energy Conservation Code, consider a well-established local green homebuilding program in your area. In the absence of such a program, the ICC-700 compliance path of the International Green Construction Code should be considered as a means for jurisdictional oversight for residential buildings."

I wish the white paper had stated in big bold letters on page one "STOP USING THE LEED RATING SYSTEM FOR BUILDING CODES."  But the statement in the white paper is a good start. 

Based on this white paper, I would suggest that it is time to revisit the D.C. Green Building Act before it's too late.  As you may recall, starting in 2012, all private construction greater than 50,000 square feet will be required to achieve LEED certification in Washington, D.C.  The USGBC's white paper all but states that the LEED rating system should not be used as a de facto building code for commercial buildings.  

And there still remains the issue of the unavailable "bonds" required to enforce the Act, but I won't get started on that.  At least for now.  

What are your thoughts on "Greening the Codes"? 

• Email This
• Print
• Comments (3)
• Trackbacks
• Share Link

This week, I have been morbidly fascinated with stories about the state of the economy and construction.  Not surprisingly, the construction downturn has dramatically decreased the number of projects registering for green building certification in 2010. 

The Business Journal recently came out with an excellent analysis of LEED registrations in 2010 and the results were not pretty:

"Where there were 367 LEED projects registered in North Carolina in all of 2009, only 57 were added to the pipeline in the first five months of 2010. Nationally, there were 10,498 registered projects in 2009, and only 3,071 so far in 2010.

One major cause for the drop is undoubtedly the overall contraction in commercial construction. According to estimates by industry research firm McGraw-Hill Construction, commercial and industrial projects in North Carolina fell by 19 percent in 2009, and are expected to drop by another 16 percent in 2010.

LEED registrations were still increasing in 2009 even as that broader decline took hold, but many of those projects were likely already far along in the planning process by then."

Predictions that the economic downturn would not effect the green building industry are not panning out.

In coming weeks, we will be discussing construction industry statistics and likely recovery scenarios.  Unfortunately, it's not going to get better any time soon.  

Photo Credit: Hillarie

• Email This
• Print
• Comments
• Trackbacks
• Share Link

What Is a "Zero Environmental Footprint"? 

This is an important question for government contractors because the General Services Administration (GSA) recently proposed that the federal government move to a zero environmental footprint.

Unfortunately, I'm not sure anyone has defined this apparently new term.  The GSA's announcement doesn't define "zero environmental footprint."  None of the articles highlighting GSA's proposal defined the term.  The numerous websites that provide greenhouse gas and carbon footprint accounting services do not define zero environmental footprint.  I also couldn't locate a definition through my Twitter, Facebook and LinkedIn friends.  

In the end, I had to rely on a Canadian children's website for a definition.  

The Canadian website Zerofootprint Kids Calculator defines an environmental footprint based on five categories:

(1) Transporation
(2) What you eat
(3) Home & School
(4) What You Use; and
(5) What You Throw Away

If you change "Home & School" to "Home & Work," you actually have a fairly comprehensive list of categories to calculate an adult's environmental footprint.*  

However, contractors will need a better definition of "zero environmental footprint."  The federal government might want to consider defining this important phrase.

*I actually took the YourFootprint quiz and was surprised at my carbon results.  Keep in mind, I live in Washington, DC, I do not own a car, and I live with a environmentally-conscious wife.  Here are my stats:

Carbon Footprint:  Me - 10.4; U.S. average - 9.8
Land:  Me - 1.8; U.S. average - 2.2
Trees:  Me - .3; U.S. average - 4.2
Water:  Me - 1743.2; U.S. average - 1877.9

Photo Credit: isolano

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Executive Order (EO) 13514 continues to have enormous implications for the green building industry.  As you'll recall, EO 13514 requires that federal agencies comply with a number of green building stipulations, including 95% of all applicable contracts meet sustainability requirements.  While the American Recovery and Reinvestment Act (ARRA) invested over $25 billion in green building projects, the Order will have a more long-lasting impact on the industry. 

Why do I say this?  General Services Administration (GSA) Adminstrator Martha N. Johnson's recent statement regarding the GSA's zero environmental footprint goal suggest how far agencies may go to implement the Order:

"Citing the president’s Executive Order 13514, Johnson highlighted the agency’s mission to assist other federal agencies to make greater strides in sustainability, excel at greening initiatives, and increase federal building performance. Johnson proposed that the federal government move to a zero environmental footprint, and she stressed that GSA is setting its sights on 'eliminating the impact of the federal government on our natural environment. . . .'

Johnson outlined a number of areas in which GSA could take the lead toward greening the government. These include cultivating green-centered public/private partnerships, aiming for only green products on the federal supply schedules, and using the federal building portfolio as a green proving-ground for new sustainable building and design technologies. . . ."

Administrator Johnson's statements are a signal of what is to come from GSA and other federal agencies.  Under the Executive Order (pdf), the GSA has broad authority to make recommendations to "green" federal contracting:

"Within 180 days of the date of this order, the General Services Administration . . . shall review and provide recommendations ... regarding the feasibility of working with the Federal vendor and contractor community to provide information that will assist Federal agencies in tracking and reducing scope 3 greenhouse gas emissions related to the supply of products and services to the Government." 

Additionally, under Section 13 of the Order, the GSA has been asked to provide recommendations regarding "using Federal Government purchasing preferences or other incentives for products manufactured using processes that minimize greenhouse gas emissions. . . ."

The GSA is preparing to overhaul the way the federal government purchases services and supplies.  But what exactly is a zero environmental footprint? 

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

That is the green building version of social media. 

What did I miss?

• Email This
• Print
• Comments (3)
• Trackbacks
• Share Link