Suing But Not Because it was Not a Green Building

Haywood Community College

With the maturation of the green building industrial complex it has become clear there is no more or additional liability associated with constructing a green building versus a similar non green structure. But, the claims that have resulted in much of the recent litigation involving green building projects are different from those in other construction disputes.

Typical is the case recently commenced over the construction of the Haywood Community College Creative Arts Building in North Carolina which was pursuing LEED New Construction v2009 certification.

The Haywood Community College’s Creative Arts Building‘s very sustainable design was featured in a 2013 issue of Solar which described the project as pursing LEED Platinum. The architect’s website still highlights the project describing it as “designed to achieve LEED Platinum.”

The project was substantially completed in 2014, late and over budget, but only days ago on October 28, 2016, a complaint was filed against the architect, general contractor, flooring contractor and insurance companies. The complaint enumerates 20 different defects over 22 pages, including describing in great detail the cracking and failure of the building’s floor that has an imbedded radiant heat system in a gypsum floor underlayment. Whether or not that multi layered floor system is the perfect base for the floor covering may be a design issue, but it is not a uniquely green issue nor innovative (.. the 1950s era house I grew up in had a similar radiant heat under terrazzo).

The 25,000 gallon rainwater cistern in the courtyard, that was designed to provide 100% of the potable water for toilet flushing and 90% of that required for the cooling tower, doesn’t function allegedly because of a software programming glitch triggered by a power surge.

The solar thermal based absorption chiller, with 152 solar thermal collectors on the south wing roof, is designed to heat and cool the building, but it is claimed the condensation, evaporation, and pressurization cycle that was to absorb the heat and cool the building in summer hasn’t functioned since 2014 because of a pump failure.

Over 90% of the storm water was to be collected via a bio-swale into a manmade wetland pond, but the complaint says the artificial wetland fails to hold water.

The lawsuit makes other (.. not particularly green building related) allegations but the academic building is occupied and is incredibly energy efficient. According to a published report the building exceeds the energy requirements of the building code by 48% when state law only mandates public buildings exceed that benchmark by 30%.

The problems with the building may involve defective designs, but the complaint reads like a usual and ordinary construction dispute based on warranting the work’s conformance to the contract documents, warranting the quality of materials, and warranting the work is free of defects.

This appears not to be a case about green building despite that the building is registered with GBCI as pursuing LEED and after years is still listed as “certification in progress.” The underlying disputes and differences are not about untested materials or new equipment, as is often the instance with sustainable construction.

It is important to make clear there are very few instances of litigation involving substantive matters of green building.

And curiously the contract did not have a consequential damage waiver so the plaintiff is seeking far more dollars than are simply required to remedy what doesn’t work and such may make any amicable resolution of the disputes and differences impossible.

As with the vast majority of claims involving a green building that this law firm reviews (.. and I see more than a claim a week), this lawsuit has little, if anything, to substantively do with the fact that the building was pursuing LEED Platinum certification. This is a garden variety owner seeking damages from an architect and construction company for a technologically advanced building that does not work as the owner contemplated.

Verdant Checked Cannabis is Coming

Verdant Cannabis

Nearly one quarter of U.S. residents now live in states that allow the recreational use of cannabis.

While we all have been focused on the Presidential election results, cannabis law reform won in eight out of the nine states where it was on the ballot, from California to Massachusetts, on November 8, making clear the that the public is ready to put the harsh prohibitionist pot policies of the past behind us.

The legal cannabis market could triple over the next for years to $22 Billion, according to a pre-election day editorial in The Wall Street Journal.

In this brave new weed world, people care about the cannabis they smoke (and eat).

The fast growing cannabis business could benefit from a voluntary certification system that producers could participate in to show consumers that they employ environmental best practices. But the U.S. Department of Agriculture claims it controls “organic” agricultural and because marijuana is a Schedule I drug under the federal Controlled Substances Act of 1970, federal policy does not permit cannabis, a federally banned substance, to be labeled as organic. In response, this law firm has been working with a cannabis industry group to create a ‘pesticide free, fertilizer free and fungicide free’ Verdant Check third party certification for sustainably produced “organic equivalent” cannabis.

Verdant Check will simultaneously encourage energy and water conservation and will provide a marketing boost to producers that participate in the program. Many cannabis consumers might prefer to purchase a sustainably produced product, and a label of certification would provide these producers a means by which to differentiate their products from others in the market. The USDA reports that consumer demand for organically produced goods continues to show double‐digit growth.

An early reviewer of the standard, observed, “this is like LEED for weed.”

Verdant Check is a voluntary third party program that can be self administered or third party certified. Producers can choose to participate in whole or in part or not, depending on whether it makes business sense to them.

Verdant Check has created a set of protocols for cannabis production. Verdant Check certified operations must demonstrate that they are using only approved substances and protecting natural resources.

Specifically, Verdant Check has established a national standard for the marketing of certain legal cannabis products as sustainably produced including to assure consumers that Verdant Check produced cannabis meets a consistent standard.

To be sold or labeled as a Verdant Check certified cannabis product, the product must:

Have been produced and handled without the use of synthetic chemicals, except as otherwise expressly approved in the program;

Not be produced on land or in growing medium to which any prohibited substances, including synthetic chemicals, have been applied during the 3 years immediately preceding the harvest of the cannabis plants; and

Be produced and handled in compliance with a Verdant Check plan agreed to by the producer and handler of such product.

This program for organic equivalent cannabis was prepared and vetted by a team of experienced scientists and attorneys, and not by some loose coterie of potheads simply looking for consensus.

Verdant Check is currently being piloted both with medical marijuana and recreational cannabis produces with a proposed first quarter 2017 public release.

Note, in the instance of a cannabis product certified under the Verdant Check program, it is intended that the certification will be considered sufficient to make a claim regarding the absence of bioengineering in the cannabis, such as “not bioengineered”, “non-GMO” or other similar claims.

Organic marijuana Verdant Checked cannabis is coming ..

False Advertising Claims over Net Zero and LEED Certified Homes

2500 R Street

Homebuyers are making claims of false advertising over “Net Zero LEED certified” houses in midtown Sacramento – that may be neither.

The website for the architect on the project, today still says, “2500 R Street located on a two acre site along the R Street light rail corridor in Midtown Sacramento, this new single-family home community is designed to be rated LEED Silver for Homes and LEED Silver for Neighborhood Development.”

The application to the Sacramento City Council in 2010 for 34 sewer connection fee credits by Pacific Housing, Inc. (which request was granted) included as its justification, “the project will bring 34, anticipated LEED Platinum rating, infill housing units to the Midtown neighborhood creating a sustainable and livable community.”

Advertising that dates to August 2013 and is still online for “the new 34 unit development of 2500 R Midtown” said, “Home offers 2 master suites, 2 1/2 bathrooms and a 3rd floor loft that is private and perfect for flexible use. Home is a Net Zero LEED certified home that includes solar with electrical storage, smart meter and more.”

A 2012 paper authored by representatives of California’s three investor-owned utilities, including the Sacramento Municipal Utility District (SMUD) stated,

SMUD’s 2500 R Street project is the first net zero energy community in Sacramento’s midtown district. In this project, net zero energy means that over the course of a year, each unit will generate as much energy as it consumes. The combined effort of community partners – Pacific Housing, Sunverge and SMUD – has produced a major achievement in modern, efficient housing. The homes at 2500 R Street are net zero energy, zero carbon, zero emissions, LEED®- certified residences.

But are they?

According to print media accounts, 17 of the 34 homebuyers filed a statement of claim on September 30, 2016 commencing an arbitration proceeding against Pacific Housing, Inc., 2500 R Group LLC, and Pach Sustainable, LLC for falsely advertising that the houses were net zero energy and LEED certified. Counsel for the parties did not reply to a request for information in response to that filing. This blog post is based upon publicly available information.

The easier of the two to address may be the claim that the houses are not LEED certified. They apparently are not. None of the 34 houses were registered with GBCI as pursuing LEED certification. Accordingly none of the houses are LEED certified. The architect also claims this “community is designed to be .. LEED Silver for Neighborhood Development” and it may well have been so ‘designed’ but it was also never registered nor pursued LEED ND. All of that observed, it is key what homebuyers were told?

The other claim of falsely advertising that the houses are net zero energy appears spurious but also requires facts to prove or disprove about how much energy each house generates and consumes each year. Project advertising said, each of the houses comes with a 2-kW solar photovoltaic system on the roof and each house also is fitted with a battery that can store solar energy during the day for use in the early evening. In addition to electricity, “each of the homes has gas cooktops, gas-powered water heaters and gas-fired heat pumps.” Depending upon individual family electricity consumption, a house might be net zero electricity, but not next zero ‘energy’ given the natural gas consumption?

Again, the 17 homeowners, who receive monthly utility bills are claiming in this action that the houses are not net zero energy (which allegation appears buttressed by the data released by SMUD in December 2014 showing that not one of the houses was net zero electricity in 2014). That 2014 release of data included a reference to the fact that homebuyers were presented with a document that explained they would be participating in a research project. Information not publicly available, including what else each homebuyer was told, is required to evaluate this claim.

Watch this blog for information about this arbitration as it moves forward. The process is private and not public, so information may be limited.

Given that most consumer protection laws across the country set a low threshold for what is false advertising to a consumer, these claims arising in Sacramento should be instructive to all marketing the environmental attributes of green homes.

And the disputes and differences about what is net zero energy should be of great interest to many.

Trump Election Can Make Green Building Great Again

Donald Trump

Election day 2016 in which Donald Trump was elected the 45th President of the United States and Republicans control both houses of Congress portends huge business opportunities for green building.

As the Executive and Legislative Branches look to arrest existing environmental and energy policies while driving up growth and lowering taxes, enabling voluntary green building is positioned to be part of the new agenda.

The newly elected President is not a 1960s Barry Goldwater environmentalist who favored “federal intervention with regards to the environment.” To the contrary, President elect Trump is a real estate developer who campaigned on dismantling much of the EPA and repealing executive orders on climate change (e.g., potentially including the Guiding Principles for Sustainable Federal Buildings) and rolling back regulations (e.g.,  power plant carbon emissions, non tidal wetlands, etc.).

That view is consistent with many elected conservatives and land owners who believe that a voluntary, non-mandatory approach to environmental protection is the best hope for stewardship of our planet. And that is the same belief that has led to the broad brand and wide market share acceptance of LEED. Many believe that burdening business and land owners with yet more government mandates is wrong and is not efficacious.

The broad failure of the International Green Construction Code to be enacted suggests a mandatory green building code that goes far beyond life safety is going too far. Further, the fact that ASHRAE 189.1 has only been implemented by the U.S. military is equally damning. Mandatory green codes and energy standards touted by the current Administration when Congress would not enact hyperbolic responses to climate change at the risk of changing our way of life, will not be popular with thought leaders in a Trump Administration.

Additionally, attempting to mandate that a private land owner must build a LEED or Green Globes certified structure misuses the voluntary rating systems. David Gottfried, the U.S. Green Building Council co-founder who unabashedly believes “all building should be green” said in a 2014 interview, “LEED was designed as a voluntary standard” acknowledging that “some governments have grabbed onto it.” And Jerry Yudelson, the former President of GBI (the Green Globes folks), makes clear 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.”

As the transition team for the newly elected President looks for environmental and energy policies that will be no cost to government and not burden business, the environmental industrial complex needs to advocate for government policies that allow and incentivize sustainability and green building (including the resultant reduced electricity use, savings in potable water, less solid waste, eliminating toxics, and more). It is time to stop the intolerant ridiculing of people, who are now in control of Congress and the White House, as climate change deniers (making it a moral issue equating them with Holocaust deniers). And it is time to reconsider the abject failure of the green building community to articulate the advantages of building sustainably that has resulted in green building no longer being the cool kid.

In its post Fedrizzi era, the USGBC might best advantage green building in the United States by being less partisan, including walking back Fedrezzi’s widely criticized Clinton Global Initiative commitment to construct a LEED Platinum orphanage in Haiti to be named the William Jefferson Clinton Children’s Center. And the USGBC might rethink its relationship with United Technologies when on the same day in April the two announced an overseas joint lecture series, Donald Trump was criticizing the company’s Carrier subsidiary for moving jobs overseas. The USGBC gave us the words and terms to describe green building and it is within its control to be great again and at the center of this awesome expansion of green building across the U.S.

But make no mistake, the green building industrial complex has its work cut out for it. In a now widely rewatched 2012 Squawk Box interview, Donald Trump did not have positive things to say about a friend’s green office building, including, “You won’t have enough light in the winter and you’re going to be extremely cold. In the summer you’re going to be sweating at your desk.”

But not only is green building a solution for many of the environmental impacts arising from human activity, from an economic perspective it is clear that green building is profitable. There is nothing wrong with making a profit while saving the planet, whether it needs to be saved or not. George Carlin famously quipped in one of his oft repeated comedy routines, “The planet is fine. People are fucked.”

Apparently the prospect of people moving to Canada drew so much online interest last Tuesday night as election returns favoring Donald Trump were announced, it knocked out the country’s immigration website. And while much of that was no doubt tongue in cheek, it was happening at that same time the President elect was delivering his election night speech, including describing as one of his initiatives for the first 100 days the $1 trillion reconstructing of America’s built environment from airports to roads. This election has presented an opportunity for the green building industry to thrive and be great again.

Green building policies that promote innovation and create an environment rich for investment in real estate can save both mankind and our current way of life; and we all can get wealthy from building green.

Increased Flexibility for LEED Multifamily Residential Projects

Multi Family 1

Dramatic changes have been announced by the U.S. Green Building Council to the LEED v4 Homes Multifamily Lowrise and Multifamily Midrise rating systems with the aim of broadening market share.

Regular readers of this blog will recall that I blogged from Greenbuild last month, when Scot Horst first publicly announced dramatic changes to LEED multifamily were forthcoming.

On October 20, 2016 USGBC published the October 2016 LEED addenda release, including interpretations, corrections, pilot credits and form and calculator updates. LEED addenda updates are issued quarterly in accordance with the Foundations of LEED and there are now a total of 5,226 corrections and interpretations in the Addenda Database. This quarter, seven new LEED Interpretations, seventeen corrections, three pilot credits, and three forms were published.

Again, in this instance seventeen corrections were published for LEED v4 (i.e., 100002112 – 100002128). Specifically, the Rating System Selection Guidance was updated to allow high-rise residential buildings of four stories or more to use New Construction or Multifamily Midrise (Correction 100002128).

Modifying the Rating System Selection Guidance for multifamily residential projects to increase flexibility for users, the correction provides,

Replace the last sentence under LEED BD+C: New Construction and Major Renovation bullet with the following: “High-rise residential buildings 4 stories or more can use New Construction or Multifamily Midrise.”

Replace LEED BD+C: Multifamily Midrise bullet with the following: “Multi-family residential buildings of 4 or more occupiable stories above grade. The building must have 50% or more residential space. These buildings may also use LEED BD+C: New Construction.”

The updated guidance allows any new construction or major renovation multifamily project, four stories or taller, that is seeking certification under LEED v4 to use either LEED BD+C: Multifamily Midrise or LEED BD+C: New Construction.

Accepting that there is no one homogenized multifamily building, one or the other rating system may be a better option for a particular project. LEED BD+C: Multifamily Midrise is tailor made to address multifamily construction and includes the added factor of onsite verification. LEED BD+C: New Construction is of course less specific to residential projects and provides likely lower first costs and additional documentation approaches that are better suited to many, if not most projects including those outside the U.S.

This update only affects projects that are multifamily buildings four stories and higher. For other project types seeking certification using LEED v4: Single-family and multifamily buildings three stories or fewer should still use LEED BD+C: Homes; Existing multifamily buildings should still use LEED O+M: Multifamily; and Core and Shell projects should still use LEED BD+C: Core and Shell.

Additionally, on December 1, 2016, GBCI will launch a new pricing schedule for LEED registration and certification across all active versions, including residential. Key changes include a $300 increase for project registration and new residential pricing and updated options for residential projects pursuing appeals.

The new registration fee for multifamily projects is $1,500. Certification for up to 49 units is $.045 per square foot and for more than 50 units $.040 per square foot. There are discounts for Silver, Gold and Platinum USGBC members. Appeals are now $500 for simple credits and $800 for complex credits.

In recent years LEED multifamily has been getting its clock cleaned including by NGBS Green Multifamily Building Certification. Many more high and low-rise apartment buildings, including high and lowrise condominiums, as well as residential units in mixed use buildings were NGBS registered and certified than pursued LEED in the last two years.

Time will tell if these ‘dramatic’ changes to LEED v4 are enough to broaden the market share of LEED multifamily.

BREEAM for Existing Buildings: The British are Coming

Barry Giles 2

BRE Global Ltd., the 97 year old Great Britain based world’s leading authority on all aspects of the built environment (.. it all started with fire testing for homes), with over 2,247,696 BREEAM registered buildings across 77 countries in its sustainability assessment method, will before the end of the year award its first BREEAM In-Use certification in the United States.

BREEAM USA is the new joint venture between BRE and BuildingWise, the well respected U.S. based LEED certification consultancy headed by Barry Giles. Barry is now the CEO of BREEAM USA and I ran into him some days ago at Greenbuild. We followed up last week and I have edited and condensed our conversations for this blog post.

For those who do not know, Barry is one of the icons of the green building industrial complex. He served on the LEED Existing Building core committee and since his first EB project, the 5th ever certified LEED EBOM building, he has been an advocate for LEED, often saying, “LEED has done a stunning job with new construction, .. but existing buildings have been a difficult thing.” He explains that the prerequisites and tough requirements for an EBOM certification, including the LEED v4 prerequisite of an Energy Star score of 75, keep the vast majority of 5.6 million existing buildings in the U.S. out of the USGBC program.

While not in direct competition, it is useful to note that the 1st version of LEED in 1998 was a knockoff of the 1990 edition of BREEAM.

It is significant that only about 4,630 buildings have been certified as LEED for Existing Building projects, according to GBIG, since the standard was launched in 2008.

Born in large measure out of the belief that the “we are not putting our effort in the huge sector of the market that is not already efficient,” Barry’s new effort is to focus on all those other buildings that “cannot get into the program.”

The joint venture between BRE and BuildingWise that is BREEAM USA happened only months ago in May 2016. The BREEAM USA Technical Manual published August 1st is available free of charge. The BREEAM In-Use program launched in the U.S. on October 1st (.. just 30 days ago) and are on pace to have more than a hundred buildings signed up by the end of November.

When I asked about when the first building will certify, Barry responded that The Bloc in Los Angeles will likely be the first to certify before the end of the year, “but we are not making a race of it. Our biggest goal is not to get buildings certified.”

Barry wants people to register their building with BREEAM USA and complete the online self assessment tool where they receive an instantaneous score. Of course an owner has the option of hiring a BREEAM In-Use Assessor to verify the score and the option to receive BREEAM In-Use certification, but the program is efficacious at “reducing operational costs” and allowing building owners to test and do a cost benefit analysis of contemplated renovations.

There is a great opportunity to add to your suite of services by becoming a BREEAM USA Assessor.

The Technical Manual and underlying algorithm are academic, based on a peer reviewed paper process controlled by the trust that owns BRE, not simply the consensus of some coterie. There are 200 questions in the online tool within nine categories including Energy, Water, Transport, Management, Waste, Pollution, Health and Well Being, Land Use and Ecology, and Materials to create a score. Once completed, the BREEAM In-Use assessment is automatically scored and the building is given an unverified rating based on the final score: Acceptable, Pass, Good, Very Good, Excellent and Outstanding.

BREEAM In-Use is open to all existing commercial buildings of any size, age and in any condition. But currently, the system does not apply to multi family residential buildings.

The overarching aim is that “BREEAM In-Use broadens the market for existing commercial buildings” to engage in a program for improved building performance because there are no prerequisites or other barriers to entry.

To be inviting to large numbers of existing building owners, “we’ve got to keep it simple” and this program does that.

“In the short term there are 5.6 million commercial buildings in the U.S. If we can strike 10% of those in the next 4 years that would be remarkable; we know that is not realistic” but it is a lofty goal. More practically “together with LEED and Green Globes, between the 3 of us we can crack that nut” of existing buildings. “We could move the needle.”

“In the Long term this could instruct the other rating systems that we can’t only look at the Class A buildings.”

“There are a lot of Class B and C buildings out there and we could help them make changes and save money. The byproduct is we will reduce carbon footprint.” And that is the real goal.

We are told that Paul Revere’s midnight ride warning “the British are coming” may not have happened, at least the way we were taught it did, but fortunately Barry Giles is here to revolutionize greening existing buildings across the U.S. with the BREEAM In-Use program.

The Ramifications of this IgCC Enactment are of National Import

Mo Co IgCC

Update. On November 15, 2016, the Montgomery County Council adopted Resolution 18-669, voting to extend time until June 30, 2017 for Council action on Executive Regulation 21-15, Adoption of the 2012 International Green Construction Code (IGCC). A Planning, Housing & Economic Development Committee work session will be scheduled at a later date.

On September 28, 2016, the County Executive of Montgomery County, Maryland submitted Executive Regulation 21-15, which adopts the International Green Construction Code 2012, to the County Council. If the Council does not approve or disapprove the proposed IgCC within 60 days after receiving it, the green code is automatically approved.

What is proposed is the boldest adoption of the IgCC anywhere.

The IgCC as modified by Montgomery County will cover all privately owned and public new building and additions of 5,000 square feet and larger. Single family detached and townhomes are not proposed to be included.

And despite that Montgomery County has long had a mandatory green building law, the IgCC is a great expansion over the prior law that requires newly constructed building or “extensively modified” that has or will have at least 10,000 square feet “must achieve a Certified level in the appropriate LEED rating system.” The County also offers a real property tax credit in varying amount (10-75%) and term (3-5 years) based on the type project and the rating it achieves LEED Silver or better.

The City of Gaithersburg, within Montgomery County, has adopted amendments to that building code that require increased energy and water efficiency requirements that drive building to LEED Gold and better. As a practical matter, throughout the County the market now requires Class A office building be LEED Gold if not Platinum.

But all of that is being repealed and the existing LEED building mandate being abolished, including it is expected Gaithersburg will revise its law migrating to the IgCC.

However, while the existing law captured only extensive renovations, the new Regulation exempts renovation of existing buildings completely when the enactment deletes Chapter 10 of the IgCC.

Note, that Montgomery County is not adopting the current 2015 version of the IgCC.  While the IgCC 2015 was approved 2 years ago, that version is not approved for use by the Maryland Department of Housing and Community Development which requires each jurisdiction in Maryland use the same edition of the same building codes.

It is significant that since July 1, 2015 all building in Montgomery County must comply with the International Energy Conservation Code 2015, with its energy consumption reduction requirements and many of those now existing requirements ameliorate the impacts of the proposed (4 year out of date) IgCC 2012. But the County amended the IgCC to use a zEPI scale score of 50 (the baseline from the more efficient IgCC 2015) for energy efficiency but still approximately 5% below ASHRAE 90.1-2013.

After more than 2 years of seeking public comment, County staff made few if any changes from their first draft and is still proposing a modest number of amendments to the form IgCC. Most are being positively received and if there is a criticism, it is that they do not go far enough when elements of the code are being moved to Appendix A and made electives. Building of less than 10,000 square feet must include a minimum of 2 Appendix A electives, up to 20,000 square feet 3 electives and greater than 20,000 square feet 4 electives.

It is also suggested that requiring diversion of 50% of demolition debris and diversion of 75% on construction debris is below what the marketplace does today.

Others point out the Regulation is internally inconsistent when it deletes all provisions requiring rooftop urban heat island effect mitigation, but leaves in place ‘non roof’ hardscape heat island mitigation (which has been criticized as junk science). To their credit the County attempts to correct some of the industry bias in the form IgCC when, in pursuit of that non roof heat island effect mitigation, when it reduces the IgCC mandated heat island mitigation “for not less than 50% of site hardscape” to “less than 40%”. The State of Maryland which approved the IgCC for use on Maryland capital budget funded projects (that includes Montgomery County public schools) reduced that percentage to 30% and Baltimore City addressed the flaw by permitting the use of “porous asphalt pavement” in addition to pervious concrete.

As bold as this is, some have suggested that Code officials have not gone far enough with the proposed amendments. As amended this enactment of the IgCC is much more restrictive and has higher first costs for most building types when compared to LEED v 2009, but such is likely not the case when compared to LEED v4.

As progressive as this Regulation appears, Montgomery County is one of a very limited number of jurisdictions in this country mandating construction of both private and public buildings must be green. The City of Rockville, within Montgomery County, adopted mandatory use of the IgCC effective July 1, 2015, however, also allows as an alternative ASHRAE 189.1. Montgomery County will be the only jurisdiction in the nation requiring all building comply with the IgCC without alternatives. While Baltimore and DC have similar mandatory IgCC laws, they additionally permit alternative compliance paths, like LEED Silver certification, compliance with ICC 700, and Enterprise Green Communities verification. Recognizing that today Montgomery County requires use of LEED, but under the proposal will in the near future only allow use of the IgCC, this Regulation is controversial.

It is worthy of note that very few jurisdictions have adopted the IgCC with only a handful of IgCC new construction projects having been completed. Not a single IgCC building has yet to be constructed in the City of Rockville, nor under the State of Maryland or Baltimore City IgCC regulatory schemes (i.e., instead each of those two regulations allow alternative compliance paths and most, if not nearly all new construction is opting for LEED). Some are suggesting with this use of the IgCC Montgomery County will increase first costs with little or no improved environmental efficacy.

While on its face strikingly bold, this rehashing of the 2012 IgCC (which was drafted in 2010) fails in terms of outdated technology, doesn’t respond to the market in suburban Maryland that demands Class A building be LEED Platinum, and will not please Mother Nature when it does not in meaningful ways address the pressing environmental matters of the day from health and wellness within buildings to potable water.

Many hundreds of LEED projects have been registered in Montgomery County, putting the county near the very top of the list for green construction in the U.S. by county and within the County, Bethesda and Rockville top of the LEED list for municipalities of less than 100,000 people across the country.

The ramifications of this IgCC enactment are of national import. Montgomery County is not only the most populous county in Maryland, it is one of the most environmentally progressive jurisdictions in the nation. It has also been ranked by Forbes as the 10th richest in the United States and accordingly first construction costs do not have major economic implications. Politically, the County is heavily Democrat with a term limited County Executive. Observers are noting, if this anti-LEED sentiment can manifest it itself here it can happen anywhere.

Organic on the FTC Agenda

organic event

The word “organic” as it relates to non-agricultural products is the topic of the October 20, 2016, roundtable sponsored by the Federal Trade Commission and the U.S. Department of Agriculture.

This is a big deal. The roundtable will explore interpretations of organic claims for products that fall outside the scope of the USDA’s National Organic Program (which potentially includes everything from cannabis to shampoo and building materials to dry cleaning, all of which are outside of USDA’s voluntary Program).

If a business makes environmental claims in its ads or on its products or in its building, the Federal government offers guidance through the FTC’s Green Guides. The Guides have the force of law and articulate how the FTC perceives truth-in-advertising principles as they apply to green marketing and highlights terms often used in environmental ads.

However, the current Green Guides do not include guidance on the term “organic.”

The FTC has said it wanted to avoid proposing advice duplicative of, or inconsistent with, the USDA’s National Organic Program. But, the USDA’s Program does not apply to non-agricultural products.

Interestingly, in response to comments on the regulatory gap, the FTC responded that it “lacked consumer perception evidence relating to claims for these [non-agricultural] products.”

Of course, the Green Guides’ general principles apply to all environmental claims. However, there is a legitimate concern in the marketplace that the FTC perceives all of this too narrowly when it takes the position that a business “must have substantiation for any environmental benefit claims they make, including implied claims,” apparently going far beyond accurately stating that a product is organic.

Earlier this year, the FTC staff conducted a study of more than 8,000 consumers to examine how consumers perceive organic claims. The study focused solely on organic claims for shampoos, mattresses, and dry cleaning services that fall outside of the USDA Program. But the study only investigated whether an organic claim accurately describes a product containing a small percentage of non-organic material. That is, the FTC asked consumers about a product that contained a small, but varying, percentage (i.e., less than 1%; 1% to 5%; and 5% to 10%) of materials “made by a man-made, chemical process.” For all three percentage categories, a significant minority of consumers disagreed that the organic claims accurately describe the product. But none of this really has anything to do with the larger issues of being able to claim a product is organic, when it is and, at best, considered the small space of deceptive organic claims. Despite that, the study concluded that “the organic claims results merit further consideration” thus, the FTC and USDA are holding the public roundtable on October 20.

There are “organic” building materials and products and with increased concern over human health and well being within buildings including improving indoor air quality, reducing volatile organic compounds may be among the fastest growing issues in green building; not to mention the increased emphasis in LEED on materials disclosures in EPDs and HPDs.

And most recently, with the explosive growth of the legal cannabis industry, where the USDA governs what is an “organic” agricultural, federal policy does not permit cannabis, a federally banned substance, to be labeled as organic. In point of fact this law firm has been working with a cannabis industry group to create a ‘pesticide free, fertilizer free and fungicide free’ Green Check third party certification for “organic equivalent” cannabis.

There is no rational basis in the FTC attempting to restrain the use of the term organic when it actually identifies an organic product or material. If it is true, a business should be able to say so.

While there is little hope the FTC will offer positive guidance on organic building materials or cannabis allowing an organic product to claim it is organic, because it is, if you can’t make it to DC on October 20th, watch several panels via webcast. The FTC will post a link on their event page just before the roundtable begins.

The Future was on Display at Greenbuild

Greenbuild 2016

Nearly 20,000 people attended the U.S. Green Building Council’s Greenbuild 2016 convention in Los Angeles last week with more than 600 exhibiters from the green building industrial complex showcasing innovations and new products on the expo floor.

Regular readers of this blog will know that I blogged  from Greenbuild last week, including Top 10 Products from the Greenbuild Expo and Junk Science And Heat Island Effect Revealed at Greenbuild. But for those of you who were not in LA I thought a broader recap of the world’s largest event dedicated to sustainable building might be in order.

Among the highlights, that will positively impact the built environment and create business opportunities are:

The biggest announcement at the convention was the formation of a new USGBC technology organization, arc, led by Scot Horst, incoming chief executive office of arc and outgoing chief product officer of USGBC. Arc will be an online platform that will allow every building to participate and, in one place, immediately start measuring performance in any of a host of rating systems and standards, make improvements and benchmark against the industry.

Scot and soon to be CEO of USGBC, Mahesh Ramanujam, used the International Summit to introduce LEED for Cities, a new initiative “scaling the vision.” Mahesh promised more details by year end teasing, what had once only applied to a single structure can now be applied to a neighborhood, a city, a state, a country, a continent “and, in time, the world.”

GBCI and the U. S. Zero Waste Business Council announced they are joining forces to advance zero waste business practices. Businesses, organizations and communities that divert more than 90 percent of waste from landfills, incinerators and the environment are considered to be successful in achieving zero waste. USZWBC will be integrated into GBCI with GBCI assuming responsibility for the ongoing management and evolution of the Zero Waste Facility Certification and Zero Waste Business Associate programs created by USZWBC. The zero waste principles will be aligned with GBCI’s certifications and arc.

GBCI also announced it will begin working together with the Environmental Defense Fund to develop, deliver and promote the Investor Confidence Project as the premier global underwriting standard for energy efficiency projects. ICP will also join GBCI’s portfolio of credentials and certifications, and the organizations will work together to accelerate investment in energy efficiency.

Scot also said in more than one session that details would be released before year end describing major changes to the requirements for LEED for Buildings Operations and Maintenance allowing many more existing building to participate in LEED O+M.

Similarly and also significantly, those at the convention were told that dramatic changes were imminent to the LEED Homes Multifamily Lowrise and Multifamily Midrise rating systems to broaden the market share of LEED multifamily.

Despite the LEED centric nature of Greenbuild, there may have been more discussion of the WELL Building Standard than of LEED? WELL, administered by GBCI certifying the performance of building features that impact health and well being.

And while possibly a bit of inside baseball, but important to this law firm that gives legal opinions on green transactions, including on green bonds and other financing, updates were announced to the GRESB Green Bond Guidelines for the Real Estate Sector, which adds specific guidance for issuers and investors in green bonds.

With all of that exciting change it is clear that USGBC is fast moving beyond the post Fedrezzi era speeding into a bright green future in which LEED will thrive. For those of us who believe that green building can save the planet, Greenbuild 2016 reinforced that the future of green building is bright and most of that green building will be LEED.

Greenbuild may epitomize the opportunities for making a profit saving the planet. I recommend you join us in pursuing those business opportunities at Greenbuild next year in Boston.

Top 10 Products from the Greenbuild Expo

PSX_20161006_180346

Regular readers of this blog will know that the Greenbuild Conference and Expo is the world’s largest event dedicated to sustainable building. And I believe the real action is on the Expo floor, .. although there was a lot of chatter this year about changing personnel at USGBC.

This week there are more than 500 exhibitors spread across the 150,000 square feet Expo floor in Los Angeles. And while the Expo is “the” target rich environment for green people this year, the latest innovative products and tech services are also on display at the Expo, including nearly 100 first time Greenbuild exhibitors.

Among the most exciting new product of this year is the d-Rain Joint Rainwater Filter Drain. Stormwater running off hardscape is both a real issue and a major first cost for real estate development. The d-Rain Joint Rainwater Filter Drain installs and looks like a standard expansion joint used in hardscape, yet it provides a gap slightly smaller than 1″ wide that allows water to flow through to the subsurface. Available in aluminum or gray polypropylene, it comes in 8′ lengths and can be installed in concrete or asphalt driveways, sidewalks, and other applications. The d-Rain allows drainage at 2 gallons per minute per linear foot, up to a maximum of 5 gpm/linear foot.

Possibly the most innovative product is Aquion’s aqueous hybrid ion “saltwater” battery. If onsite renewable energy is going to go mainstream and be more than an aesthetic feature, the issue of the storage of power will have to be much better addressed. Tesla’s Powerwall was a big hit at last year’s Expo. Aquion has an arguably environmentally safer and much faster charging battery. Whether it is really is ready for prime time and installation in your building may be a question, but this product may be just what is needed to fundamentally change how we address energy in the built environment.

Each year the good folks at BuildingGreen recognize green building products that significantly improve upon standard “business-as-usual” practices. Rather than attempt to repeat their efforts at searching out products helping to transform the green building industry, here is a link to their article, Top 10 Products for 2017.

If the Expo is a good barometer of the state of green building green building is thriving.

LexBlog