Green Building Law Update
A Green Building Game of Thrones
"Winter is coming."
This is the common refrain in the popular book, Game of Thrones, in which kings vie to take over lands. As I thought about the green building policy mess of 2012, I couldn't help but draw comparisons to Game of Thrones.
This was supposed to be the year of the USGBC's new green building rating system, LEED 2012. But somewhere along the way, the plan went awry and the USGBC had to retreat.
In assessing the battlefield, I have concluded that the USGBC overextended itself, choosing to fight a two front war without the necessary resources. This is a common tactical mistake and one that has proven costly for the USGBC. Just how costly is yet to be seen.
The Assault on Chemicals of Concern
Before being pulled, the proposed LEED 2012 rating system went through a lengthy, unexpected vetting process, culminating in a fourth draft. One particular section of the fourth draft set the green building world on fire:
New credit for avoidance of chemicals of concern – this credit encourages LEED project teams to specify materials that do not contain chemicals that are known to negatively impact human health (specifically in regards to cancer and reproductive toxicity).
New credit for Environmental Product Declarations - The new EPD credit encourages product manufacturers to engage in disclosure activities that provide specifiers with consistent and complete information about their products enabling specifiers to make more informed decisions.
The negative reaction to this credit was fast and furious.
- More than 50 United States Congressman signed a letter voicing their concern "that the LEED rating system is becoming a tool to punish chemical companies and plastics makers."
- Multiple chemical companies and the US Chamber of Congress formed the American High Performance Buildings Coalition to lobby against LEED 2012.
The timing of these lobbying efforts coincided with the GSA's release of a preliminary report indicating that the Green Globes rating system was better suited for new federal construction. While the report was not tied to the issue of chemicals in LEED 2012, it provided an opportunity for anti-LEED lobbying to push for a new federal green building rating system.
With a pending final report from GSA this winter, and massive lobbying efforts against LEED at the federal level, don't be surprised if other rating systems are adopted by federal agencies going forward.
The Wood Siege
The USGBC has also been stuck in a long standing siege with the wood industry.
On the one side, you have two allies -- the USGBC and the Forest Stewardship Council (FSC). The USGBC long ago selected FSC wood as the anointed certification for wood products. On the other side is the non-FSC timber industry -- those wood providers that can't attain FSC certification. This side prefers the Sustainable Forestry Initiative (SFI) certification.
In July 2011, it appeared the USGBC was willing to negotiate with SFI. In a LEED Pilot Credit, the USGBC recognized SFI as one of four wood certifications.
Then the USGBC shifted its tactics. In the last version of LEED 2012 that was released this past year, the USGBC declared that "(n)ew wood products must be certified by the Forest Stewardship Council or better."
The "Wood Wars" has left the USGBC bloodied. In 2011, Congress passed a Department of Defense Reauthorization bill that effectively banned LEED Gold or Platinum certification. One Senator indicated the LEED ban was in response to the USGBC's failure to adopt non-FSC wood certification.
USGBC Retreats on LEED 2012
As the two battles on chemicals and wood have raged, the unthinkable happened: the USGBC had to retreat on its latest proposed version of its rating system, LEED 2012, before putting it up for a vote. I had been tweeting for a number of weeks that things were looking grim for LEED 2012. If you want to follow the drama, I highly recommend perusing the commentary at the LEED User forum.
It's hard not to draw a correlation between the chemical industry's negative reaction to LEED 2012 and the USGBC's decision to pull it back. USGBC CEO Rick Fedrizzi addressed this issue in an open letter to USGBC members: "To be clear… this change is 100% in response to helping our stakeholders fully understand and embrace this next big step."
Who Will Win the War?
This winter, many decisions will be made that will determine the fate of the USGBC for years to come.
- Will the next proposed version of the LEED rating system include similar Chemicals of Concern and FSC-only credits?
- What will be the GSA's final recommendations regarding green building rating systems?
- How will the presidential and congressional elections impact green building policy?
I hope everyone is ready for a long, interesting winter.
Sustainability & Green Real Estate Attorneys
15 East Chesapeake Avenue
Baltimore, Maryland 21286-5306 USA