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

I have spent just over a year thinking about the International Green Construction Code (IgCC).  I know it has been one year because I received my first copy of the code at Greenbuild 2010.  My conclusion today about the code is no different than it was one year ago: 

The IgCC is unnecessarily confusing. 

Take, for instance, the IgCC's basic setup -- it's two codes in one.  Apparently, trying to figure out one set of building codes is not enough.  Within the IgCC, jurisdictions have the option of adopting either the IgCC code or ASHRAE 189.1.  Yes, I know that that sentence does not make sense, but it is correct. 

Other aspects of the IgCC create more confusion.  Not only does it include mandatory code provisions, but it also contains electives that can be selected by a jurisdiction and a project team.  Why would the code writers have included electives in a mandatory building code?  One theory I have heard is that the code writers wanted to mimic the elective credits in the LEED rating system.

I support the creation of a green building code.  Too many jurisdictions were mandating the LEED rating system as a de facto building code.  The IgCC was an attempt to fill that void with a system more appropriately suited to a building code.  However, the current version of the IgCC will create unnecessary confusion that will result in the following: 

• Building inspectors will struggle to learn to enforce a complicated building code that changes with each project depending on the electives selected.  This will result in inconsistent building code rulings.
• Design and construction professionals will have to comply with different building codes depending on the jurisdiction.  This means that professionals may have to learn more than one building code to do work in two adjacent communities. 
• Insurance and surety companies will struggle to ensure the risks associated with confusing green building codes.  I have already heard one large insurance company state that the adoption of green building codes will change the standard of care for design professionals going forward. 

What do you think of the International Green Construction Code?  

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I was recently forwarded an interesting article written by Helen Mason regarding the International Green Construction Code.  She did such a good job reviewing the state of green codes that I wanted to make it available for download (PDF) to my readers and ask her a few follow up questions.  Enjoy! 

Chris: I was fascinated to read in your article that many Florida groups and cities already have indicated support for the IGCC.  Do you anticipate jurisdictions in Florida will start adopting IGCC soon?  

Helen: Yes, I do think the IGCC will be adopted by jurisdictions in Florida. The state has a long history of being a leader in promoting all areas of sustainability. In fact, the Florida legislature has mandated incremental increases in energy efficiency up to 50% by the 2019 Edition of the Florida Building Code and has required the use of the most current version of the International Energy Conservation Code (IECC) as the foundation code. The IECC is also a fundamental component of the IGCC. 

Further evidence that Florida residents are committed to sustainability is shown by the adoption of “ Miami 21 Code” in May of 2010 which requires new buildings greater than 50,000 sq. ft. to be certified “at a minimum” LEED Silver. In addition, the developer must post a performance bond of 2% to 4% of the cost of construction which “shall” be forfeited if the building does not meet LEED Silver within a year of the Certificate of Occupancy. How “soon” the IGCC would be adopted will likely be controlled by the statutory provision that Florida building codes are revised on a three year cycle, generally six months after publication of International Code Council revisions. This would mean that adoption of the IGCC would likely not occur until the 2013 Edition of Florida Building Code.

Chris: Some jurisdictions are adopting IGCC as a "voluntary" code.  What do you think of this development? 

Helen: For many individuals, understanding and implementing the IGCC as a minimum standard will require a dramatic change in approach to their work. Therefore, I think it is reasonable for a jurisdiction to initially adopt the IGCC as a voluntary code to allow adequate time for parties to become educated and to discover any unique issues to a specific jurisdiction. However, the only way to achieve significant, predictable environmental benefits on a large scale is for jurisdictions to adopt the IGCC on a mandatory basis.

Chris: You raise a number of legal issues that may arise from the IGCC.  Which do you think is the most significant and why?  

Helen: When one is asked what “legal” issues may arise, typically you would think who is going to sue whomever; but I think the most significant legal issue arising from the IGCC is that it imposes obligations on owners to improve the energy efficiency of existing buildings. As part of our national security, particularly with the wide unrest in the Middle East, the U.S. must reduce the energy consumption of existing buildings which accounts for 72% of total electricity consumption.

These IGCC mandates for existing buildings can be a first, but important, step in achieving this goal. In addition, these obligations can produce significant public and economic benefits. Requiring periodic improvements will reduce the deterioration of existing building stock; maintain overall quality and value of all construction and thus help to preserve neighborhoods. The public will benefit by maintaining its tax base and having less strain on utility infrastructure. Finally, these provisions can help to create a stable construction job market to meet the retrofitting and compliance obligations of building owners.  

Photo credit: davesag

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Many of you have been asking about the availability of the webinar on the International Green Construction Code (IGCC) that I completed with Bob Kobet, and Basic Gov.  The webinar is now available online, although you will have to sync the powerpoints and audio.  If you listen closely, you can hear the panic in my voice as we tried to resolve technical difficulties that were blocking Bob from joining.  

• Powerpoint slides
• Audio

I have been thinking about the complexities of the IGCC since public version two was released at Greenbuild.  To me, the most interesting and unusual aspect of the IGCC is that it is two codes in one.  The IGCC includes both a model code and ASHRAE 189.1:  

The IGCC was developed with the intent to be consistent and coordinated with the ICC family of Codes & Standards: the I-Codes. . . .

The IGCC also allows jurisdictions to choose ASHRAE Standard 189.1 as an alternative compliance path. ASHRAE Standard 189.1, Standard for High-Performance Green Buildings Except Low-Rise Residential Buildings, is an American National Standards Institute (ANSI) standard developed by the American Society of Heating, Refrigeration and Air-Conditioning Engineers (ASHRAE) in association with the Illuminating Engineering Society (IES) and the U.S. Green Building Council (USGBC). 

It will be interesting to see whether the majority of jurisdictions adopt the model code or ASHRAE 189.1.  If I was a betting man, I would put my money on the model code.  The nature of human beings is to seek the most simply solution.  Many jurisdictions will simply rely on the model code because ASHRAE 189.1 is an entirely different document. 

What do you think will be the result? 

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If the International Green Construction Code (IGCC) is successful, green buildings will soon become the rule instead of the exception.  By codifying green building standards, the IGCC has the potential to make major strides to advance green building practices on a scale that has been unattainable through LEED and other similar voluntary green building standards.

We are currently in the period for public commentary on the proposed International Green Construction Code (IGCC), we at Green Building Law Update have decided to do a series highlighting some of the proposed IGCC provisions.  Most of you do not have time to read the entire 243 page proposed code but that is what interns are for.  

If your city decides to adopt the IGCC, Green Building Law Update wants you to be prepared and know what it means for you and your business.  Each Wednesday we will post a proposed code section and a short analysis.  Please feel free to discuss the pros and cons of the proposed code in the comments.  Please also note that if you are especially passionate about a certain provision of the IGCC that the public commentary period runs until August 12, 2011.  The IGCC is expected to be finalized by January 2012.

Photo Credit: International Code Council

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I have been amazed at the immediate interest generated by the International Green Construction Code (IGCC).  

Despite the fact that the IGCC is still in its infancy, there are a number of states and municipalities closely studying it for adoption.  We have already discussed Rhode Island’s adoption of IGCC for public buildings.  More significantly, legislation was introduced in Maryland just a few days ago to allow statewide adoption of the IGCC.  

Based on the interest in IGCC, I have teamed up with BasicGov and Bob Kobet to present a free webinar related to green building code adoption:

“The Reality of Implementing Green Building Programs in Your City”

The webinar is FREE and will take place on February 23 at 2 pm eastern.  During the webinar we will cover the following topics:

• The basics of IGCC
• Best practices for implementation of green building codes
• Problems that have arisen in jurisdictions that have adopted green building codes

I hope you can join us.  And please pass on the webinar information to your favorite city official or planner.  

Disclaimer:  I am being paid to speak at this webinar. 

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I continue to ponder the importance of the release of the International Green Construction Code public version 2.0 (IGCC).  I recently asked Bob Kobet, LEED Faculty member, to provide his thoughts on IGCC.  It's good to see that I am not the only one who thinks the new code is a big step for green building.  

For the last 31 years my professional life as an architect and educator has been linked to codes. Through it all my core beliefs about codes, why we have them and how they get developed and enforced have been reinforced. They include:

1) Architecture is complex, no matter now simple the project may seem. It is very difficult to write codes that apply with equal rationale to a variety of building types in different geographic locals and climate zones.

2) Codes do not lead the technology parade. They follow it.

3) Code officials are generally not known for taking risks or being overly creative in their role as authorities who essentially interpret and enforce the law. Most “go by the book” for a reason, so what is in the book is critically important to the advancement of building performance and environmental stewardship.

From this perspective the International Green Construction Code (IGCC) provides a much needed alternative for advancing environmentally responsible architecture combined with the ability for municipalities to adopt what they believe is most appropriate and important to them.

The IGCC was developed to be consistent and coordinated with the ICC family of Codes & Standards. These are the I-Codes, which include ASHARE 189.1. ASHRAE Standard 189.1, Standard for High-Performance Green Buildings Except Low-Rise Residential Buildings, is an American National Standards Institute (ANSI) standard developed by the American Society of Heating, Refrigeration and Air-Conditioning Engineers (ASHRAE) in association with the Illuminating Engineering Society (IES) and the U.S. Green Building Council (USGBC). The IGCC allows jurisdictions to choose ASHRAE Standard 189.1 as an alternative compliance path. The IGCC is applicable to commercial buildings, including existing buildings undergoing alterations and additions. Traditional and innovative construction practices are addressed.

The IGCC does not replace existing codes or force municipalities to make wholesale administrative changes. Instead it allows jurisdictions to use their administrative powers to exercise the flexibility inherent in the IGCC. This is possible because the IGCC contains a new regulatory framework that allows choice and adaptation to local or regional conditions. Through the use of Baseline requirements, Projective Electives and Jurisdictional Requirements, the IGCC has achieved a balance between traditional safety issues and sustainability. The balance is a result of collaboration between the International Code Council, ASHRAE, ASTM, The AIA, and the US Green Building Council.

Overall I favor the approach the IGC and its partners have taken with the IGCC. I am hopeful it will meet the expectations of those who have worked so hard to make it available. Finally, there is a code emerging that supports renewable energy systems, rainwater harvesting, grey water reclamation, nontoxic design and straw bale construction. There will be those who view the IGCC as just another code to confront. I embrace it is a significant step in the right direction.

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Back in October 2010, Doug Reiser and I co-presented on the topic of substituting LEED for traditional building codes.  As we were finishing our presentation, I reiterated our primary theme that LEED standards should not be used as a building code.  One of the audience members raised her hand and asked why weren’t we discussing the International Green Construction Code (IGCC).  

That audience member was right--states are beginning to consider the adoption of IGCC as a state-wide green buiding code in lieu of LEED certification requirements.  

The IGCC is available for a free download.  I suggest you take a look at it.  At the front of the code is a “Roadmap to the International Green Constructon Code” that I found to be helpful:

“Chapter 3 is the core of the (IGCC).  It is formatted to: facilitate the customization of this code to address local issues; provide options for construction which exceed the minimum requirements of this code; and provide for the implementation of best practice. . . .

All of the provisions of this code, other than those selected by the jurisdiction in Table 302.1 and those designated as project electives, are mandatory as applicable.”  

Rhode Island was one of the first states to adopt the IGCC.  Interestingly, Rhode Island adopted the code as an “‘equivalent standard’ to meet requirements that all new major facility projects by state agencies be constructed as green buildings.”  

Do you see other states adopting IGCC as an “equivalent standard” to other green building rating systems? 

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