Stuart Kaplow

I spoke to a gathering of construction industry attorneys the other day about that the changing environment of Federal government regulation portends huge business opportunities for green building. This blog post is my prepared remarks for that talk.

While much of the mass media hyperbole has focused on the new Administration’s 2018 “skinny” budget request of $5.7 Billion for the Environmental Protection Agency, a reduction of $2.6 billion, or 31%, from the 2017 level of funding, the bigger story is likely how the changing environment of Federal government regulation portends huge business opportunities for green building, including for construction attorneys who advise the sustainable building industry.

In a time of a changing national environmental agenda, it is an ideal moment to articulate how green building is “the” ideal means of voluntarily mitigating the negative impacts that human activity has on the planet.

While the construction of buildings provides countless benefits to human beings far beyond mere shelter, voluntary stewardship of the environment through green building can save the planet, whether it needs to be saved or not. More correctly, as stated below, green building can save mankind and our current way of life.

It is that belief that has led to the broad brand and wide market share acceptance of the LEED green building rating system. [1]

Given the broad environmental impact that buildings have on the planet, it is not necessary to go down the rabbit hole of a political debate with the EPA Administrator over global warming. Moreover, today in most business circles the debate about climate change has shifting away from a discussion of costs and risks toward the question of how to capitalize on exciting opportunities.

The 45th President of the United States is not a 1960s Barry Goldwater environmentalist who favored “federal intervention with regards to the environment.” To the contrary, President Donald J. Trump is a real estate developer who campaigned on dismantling much of the EPA (e.g., rolling back EnergyStar, WaterSense and other programs that can be transferred to the private sector) and repealing executive orders on climate change (e.g., including those associated with the Guiding Principles for Sustainable Federal Buildings) and rolling back regulations (e.g., Clean Power Plan, non tidal wetland expansion, etc.).

While there is no one homogenized building type, green buildings can significantly reduce energy use, water use, solid waste and greenhouse gas emissions.

By way of example, compared to the average commercial building, an oft quoted study found the LEED Gold buildings in the U.S. General Services Administration’s portfolio generally: Consume 25% less energy, use 11% less potable water, have 19% lower maintenance costs, 27% higher occupant satisfaction, and emit 34% lower greenhouse gas emissions. [2]

But at a time when many in society describe environmental matters apocalyptically, as if human existence on the planet is at risk, a real and currently available response is a built environment reducing energy use, water use, solid waste and greenhouse gas emissions.

And green buildings do so much more.

It is time to refresh our recollection that the first version of LEED allocated points based substantially upon the U.S. National Institute of Standards and Technology “Building for Environmental and Economic Sustainability” (BEES) environmental impacts. [3] An updated version of BEES is expected in 2017.

Later, LEED version 2009 reweighted the solutions to environmental impacts using the U.S. EPA “Tool for the Reduction and Assessment of Chemical and other environmental Impacts” (TRACI). [4] Such was not a leap because (the previously utilized) BEES was based upon TRACI. The current TRACI impacts are: Ozone Depletion, Global Climate, Acidification, Eutrophication, Smog Formation, Human Health Particulate, Human Health Cancer, Human Health Noncancer and Ecotoxicity. Articulating the positive outcomes from those impacts is how the green building industrial complex will remain relevant in this changing environment.

Driven by building owners in pursuit of those positive environmental externalities, green building has all but exploded onto the scene with a 3200% growth in share of the U.S. non-residential construction activity since 2006. [5] That Dodge Data & Analytics statistic, in and of itself, should cause every construction attorney to turn green.

Moreover, the well being of building occupants is in 2017 and increasingly being described as a key driver of sustainability. In the in the U.S. alone there are more than 120 million employees who spend an average of 8.1 hours at work within a building each day. And that staff costs broadly account for 90% of business operating costs, the health and wellbeing of those employees and the resultant increased productivity of the building occupants makes this emergent trend in sustainability very real. [6]

The aims for a sustainable building have shifted in the U.S. from green buildings that were “high performance” because they had a low carbon footprint to, now, occupant well being and the resultant increased productivity. This dramatic shift may mean fewer need LEED buildings (although 1.85 million square feet being is being LEED certified every day) [7] and more WELL projects and Fitwel building, two emerging building standards that center on considerations around protecting occupant health, wellness, and productivity.

That view, including the voluntary shift in priorities, is consistent with those that control the White House and Congress as well as many land owners who believe that a voluntary, non-mandatory approach to environmental protection is the best hope for stewardship of our planet. They believe that burdening land owners with yet more government mandates is wrong and is not efficacious.

The broad failure of the International Green Construction Code to be widely 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 last Administration when Congress would not enact hyperbolic responses to climate change at the risk of changing our way of life, are not popular with the current thought leaders in control of the Federal government.

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.”

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.” [8] But his observation that Earth is 4.5 billion years old, so “The planet isn’t going anywhere. We are,” belies the comedic wisdom of this very real fact.

Once the dust settles from the ideological Armageddon over the 2018 Federal budget, it will become clear that 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.

[1] http://www.usgbc.org/

[2] https://www.gsa.gov/graphics/pbs/Green_Building_Performance.pdf

[3] https://www.nist.gov/services-resources/software/bees

[4] https://www.epa.gov/chemical-research/tool-reduction-and-assessment-chemicals-and-other-environmental-impacts-traci

[5] https://analyticsstore.construction.com/smartmarket-reports/2016WorldGreen.html

[6] See, Fitwel may be the Future of Building Sustainability, http://www.greenbuildinglawupdate.com/2017/03/articles/sustainability/fitwel-may-be-the-future-of-building-sustainability/

[7] http://www.usgbc.org/leed

[8] Watch a YouTube video of “George Carlin – Saving the Planet” (1976) http://www.youtube.com/watch?v=7W33HRc1A6c