Green Building Law Update : Green Building & Construction LEED AP, Lawyer & Attorney Chris Cheatham : Washington DC, Virginia, New York City

I have been hearing rumblings about federal green building policies that are being reduced or axed in Washington D.C.  Now I have a real life example to discuss. 

Kirk Dryer reported on the story last week, but I think its worth discussing further.

The Environmental Protection Agency (EPA) recently announced that it would be relocating its headquarters from downtown Kansas City, Kansas to a more rural location in Lenexa, Kansas.  The General Services Administration (GSA) was ultimately responsible for the real estate decision as it negotiated the EPA lease.  I suggest you read Kaid Benfield's scathing article about the decision if you would like more background. 

In the end, the GSA made a decision based on cost.  It is cheaper to rent in rural Kansas than it is in urban Kansas City.  But for smart growth advocates, the decision was a slap in the face. 

From a legal standpoint, the GSA's decision could actually be overturned in the name of green building policy.  The GSA's decision is being challenged through a bid protest filed by the local government and the Kansas City, Kansas landlord.  A bid protest is a legal challenge to the outcome of a government contract award. 

This appears to be a form of bid protest involving green building policy decisions:  

"The Unified Government of Wyandotte County and the landlord of the property, UrbanAmerica Advisors, have appealed to the GAO to reverse the decision.

...

The GSA submitted a briefing explaining the decision to the General Accounting Office (GAO) on Monday. The details of the motives, however, remain secret."

I am not privy to the bid protest documents, but I imagine the lawyers argued that the urban location should have been selected because it supports the environmental goals of Executive Order 13514.  I doubt the GAO would overturn the GSA decision based on this argument, but we shall see.  The GAO may have to determine whether the GSA can make decision based on cost, when conflicting environmental requirements also exist. 

What do you think? 

Photo credit: Jim Nix

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My first legal case involved "fly ash."  I had no idea what fly ash was so I looked it up in the dictionary.  Fly ash is a "coal-combustion by-product" (CCB) that is often used in concrete as a replacement for portland cement.  When used in massive concrete structures, like dam construction, fly ash can result in a significant cost savings.  

Despite all of my work with fly ash, I had never read or heard anyone mention that fly ash could be the "new asbestos."  That was, until I read an ENR article titled "Fly Ash Looms as the 'New Asbestos":

"Concrete groups are on tenterhooks, waiting for the U.S. Environmental Protection Agency to publish a proposed rule that aims to designate fly ash and other coal-combustion by-products as hazardous waste. The concrete sector is concerned even about the ramifications of a 'hybrid' rule that would allow beneficial uses of CCBs to continue."

"[T]he USGBC has issued a credit interpretation that allows for an innovation credit if 40% less cement is used than in typical construction, or if 40% of the cement in concrete is replaced with slag cement, fly ash, or both."

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