You may be relieved to learn that I am temporarily done discussing LEED de-certification. The USGBC will be releasing an addenda to the Minimum Project Requirements, at which time we will discuss this issue anew. Until then, lets move on...to another LEED legal discussion.
One green building legal development that I, and others, have been concerned about is the inclusion of LEED into government regulations, particularly when applied to private projects. Is it constitutional to require private parties to comply with a third party rating system, namely the USGBC's LEED rating system? What other legal issues arise from LEED mandates?
Brad N. Mondschein's green energy blog raised an interesting case study regarding Connecticut's recently passed LEED mandate. Under the regulation, the State Building Inspector is required to revise the State Building Code to incorporate LEED standards.
Turns out, the State Building Inspector is very concerned about revising the State Building Code to incorporate LEED:
The state Department of Public Safety is still trying to write building-code language that reflects the new requirements for commercial projects.
“We don’t have the framework in place to implement it properly,” said Lisa R. Humble, the state building inspector.
After the law was passed, the State Building Inspector asked for an opinion from the Attorney General regarding the legality of the mandate.
Andrew Falk did a great job finding a copy of the Attorney General's informal opinion letter (PDF) to the State Building Inspector. From Janet Ainsworth from the Connecticut Department of Public Safety:
The attached is the informal advice (PDF) received from the Office of the Attorney General. The AG opinion does not address the constitutionality of the legislation. Rather, it discusses whether the statutory provisions may be enforced in the absence of applicable language in the State Building Code. The Department of Public Safety is engaged in the development of the applicable language to be added to the State Building Code. At this time, I am unable to estimate when the amendment to the State Building Code to address the green building requirements of the Connecticut General Statutes will be enacted.
Check out the letter (PDF) as we will be discussing it in future posts. What's your take on the letter?
*Turns out, the Attorney General letter does not address constitutionality of LEED mandates, as originally thought. We will save this issue for another day.