Would the Founding Fathers Have Supported LEED Mandates?*

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. 

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Comments (5) Read through and enter the discussion with the form at the end
Christopher Hill - July 22, 2009 12:58 PM

That was quick! Good find Andrew.

Peter Moonen - July 22, 2009 3:37 PM

I find it difficult to accept that any government body would consider requiring compliance to a single third-party, especially one which is subject only to the caprice of those who care to provide input; AND which cannot possibly recognize the diversity of needs in the multitude of jurisdictions requiring the system; AND which may require other third-party compliance which is unable to accept input from the local government mandating the rating tool -- specifically the third-party sustainable forest certification requirement for FSC.

It would be like the government requiring that we all use Crest toothpaste when, in fact, the intent is to ensure people brush their teeth.

Governments need to recognize the complexities and diversity of rating tools and ensure that as many as possible are available which encourage better buildings but which do not impose a single, perhaps narrow, view of the world. If there was one system that was universally acknowledged as perfect...well, there isn't.

As we all know, amending a political initiative like this would be extremely difficult once in place. Well-intentioned but naive approaches to high-profile problems only makes for more problems.

aarchitect - July 22, 2009 4:45 PM

The Founding Fathers would have been silent on this issue. Building codes are the jurisdiction of the States. This would be addressed at the state constitutional level and what would be allowed varies from state to state. Most states--and this is changing--leave building codes entirely up to the municipality.

Another point is that building codes reference private standards all the time for life safety issues, NFPA being one, and no one blinks. The California Building Code incorporates whole sections from ASHRAE. Why should LEED standards be treated any different?

Chris Cheatham - July 22, 2009 10:52 PM

@Christohper Hill - I thought for sure you would win. Andrew was amazing, he called up the Connecticut AG to get the letter.

@Tanner Courrier - I agree. Look for a post on Friday regarding green stimulus projects that could prove problematic.

@Peter Moonen - Thanks for the comment. Once ASHRAE 189.1-P gets finished, you will see a lot of municipalities adopt it instead of LEED. At least, that is what I am hoping.

@aarchitect - Haha, you are probably right regarding the Founding Fathers being silent on the issue. You also make a great point in comparing LEED to other standards like ASHRAE. I have been meaning to do a comparison as I suspect there are differences. Thanks for the thoughtful comment.

Peter Moonen - July 24, 2009 11:02 AM

Yes, ASHRAE is referenced in a lot ogf legislation. However, keep in mind it is a recognized Standard. LEED was not developed under the same internationally approved standards development process. (ANSI, ISO) While it is moving that way, it was developed as a set of guidelines and criteria based o what people thought were important elements. It was not subjected to the same technical and objective rigor as most standards. In fact, it is incorrect to call it a 'standard' until such time as it has been duly recognized as such.
As important as LEED is, it is still developing and is not perfect. My point about legislation is that, when other tools are available -- and there are dozens in the US and scores more around the world -- it is inappropriate for a government to mandate a specific standard. Other tools should be identified and either be deemed equivalent for the purposes of the state, or identified and excluded as insufficient.

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