The Destiny USA Debacle: What is Destiny USA?

I am publishing a series of posts on the Destiny USA Debacle -- the federally-sponsored Green Bonds project that has failed to incorporate promised green building features.  To read all of the posts at once, you can select the Destiny USA tag.  

In this post, I planned to describe the proposed Destiny USA project and its many features.

I think you will prefer this video.  



Did that remind anyone of Jurassic Park?  

If you prefer a written explanation, this is how the New York Times described the Destiny USA project in 2005:

Robert Congel, a commercial real-estate developer who lives in upstate New York, has a plan to ''change the world.'' Convinced that it will ''produce more benefit for humanity than any one thing that private enterprise has ever done,'' he is raising $20 billion to make it happen. That's 12 times the yearly budget of the United Nations and more than 25 times Congel's own net worth. What Congel has in mind is an outsize and extremely unusual mega-mall. Destiny U.S.A., the retail-and-entertainment complex he is building in upstate New York, aspires to be not only the biggest man-made structure on the planet but also the most environmentally friendly. Equal parts Disney World, Las Vegas, Bell Laboratories and Mall of America -- with a splash of Walden Pond -- the ''retail city'' will include the usual shops and restaurants as well as an extensive research facility for testing advanced technologies and a 200-acre recreational biosphere complete with springlike temperatures and an artificial river for kayaking.

That is Destiny USA.

GSA Building Underperforms

Something very important popped out at me when I re-read the New York Times article about the green buildings not performing as anticipated.  The green building highlighted for poor energy performance is a General Services Administration building: 
"The building’s cooling system, a major gas guzzler, was one culprit. Another was its design: to get its LEED label, it racked up points for things like native landscaping rather than structural energy-saving features, according to a study by the General Services Administration, which owns the building."
Why would I bring up the New York Times article yet again to point out the GSA's ownership of the building?  The GSA received $4.5 billion from the American Recovery and Reinvestment Act for construction and renovation of federal buildings.  The GSA also requires that all new projects be LEED Silver certified, with a preference for LEED Gold certification.  That means $4.5 billion is being spent on new GSA projects that could fail in the same manner as the building in the New York Times article. 
 
Next week we will look at why design professionals and contractors want to avoid ARRA green building project failures.  My colleagues at Crowell & Moring have done a tremendous job analyzing the ARRA, including funding for the investigation of fraud, waste and abuse.
 
Related Links:
 

Photo: wilkins lee

Happy Labor Day

I hope everyone is having a great Labor Day.  No new post today.  Instead, I would suggest you read or re-read the New York Times article about LEED and energy performance. 

The article is one of my most important to come out on green building in awhile.  As I said on Friday, the most interesting part is the USGBC's suggestion that re-certification will be required in the future. 

What do you think? 

New York Times, USGBC Address LEED Performance Gap

You may have recently read the New York Times article about the gap between LEED building designs and actual energy performance.  If not, I would recommend reading the article.  You may have also noticed a reference to "construction lawyers": 

"Already, some construction lawyers have said that owners might face additional risk of lawsuits if buildings are found to under-perform."

In May 2009, I spoke with Ms. Navarro about legal issues that could arise from under-performing green buildings.  I told her that under-performing green buildings might result in unhappy owners when energy performance promises were not met.  Even worse, owners might interpret a green building energy performance design as a promise and be disappointed when actual performance does not match.  Finally, I pointed Ms. Navarro to Malcolm Lewis of CTG Energetics, who actually corrects energy performance gaps that occur in new buildings. 

A lot has happened since my conversation with Ms. Navarro.  The USGBC has taken big steps to address the energy performance gap, which the article covers.  Remember when we discussed the USGBC's new requirement for reporting of energy data from LEED buildings?  Remember how the USGBC threatened to de-certify buildings that do not report energy savings?  These actions mean the USGBC is addressing the energy performance gap head on. 

Want more proof of how seriously the USGBC is taking this issue?  This is from a June 2009 press release from the USGBC:

The U.S. Green Building Council announced this week that Christopher Pyke, Ph. D. has been appointed Research Director. Dr. Pyke joins USGBC from CTG Energetics in Irvine, Calif., where he was National Director of Climate Change Services.   He brings a strong background of leadership in green building research to USGBC, underscoring its commitment to raising the bar on research related to green building science and technology, including the performance of LEED-certified buildings. This research will be vital to the ongoing development of the LEED green building certification program.

CTG Energetics is one of the leading building energy performance companies.  In hiring Dr. Pyke, the USGBC is investing significant resources into researching energy performance. 

Of course, this is all old news.  Friday we will discuss new information revealed by the USGBC's Scot Horst that has enormous ramifications for LEED.

Photo:  Geoff Livingston

Links: 

Some Buildings Not Living Up to Green Label (NYT)

Malcolm Lewis (CTG)

How I Learned to Stop Worrying and Love LEED De-Certificaiton (GBLU)

This Post is Really Important and Is Not For the Faint of Heart (GBLU)

Some Cities Are Not Ready for Green Stimulus Funding

Back on February 20, 2009, I said the following about the American Recovery and Reinvestment Act:

While Republicans, Democrats and the President argued over the stimulus package for weeks, the real battle may arise when state agencies and officials attempt to divide up the stimulus funding and choose the projects that receive funding.

The real battle is now upon us.

The New York Times has written a fascinating article highlighting the benefits, and potential troubles, associated with clean-energy stimulus funds that will soon begin flowing to cities and towns. The article really paints a picture of potential waste and "headache" that may result from these funds. I was particularly struck by this section:

But the sudden flow of federal funding is raising questions about whether many of these communities are really ready for it.

Some 1,000 cities and counties have direct access to the new entitlement account, the Energy Efficiency and Conservation Block Grant Program. They have until June 25 to submit plans, but that's a challenge, because most haven't received federal grants for energy projects before.

Many communities are having trouble retaining enough police officers, let alone hiring sustainability professionals who understand how to establish energy efficiency programs that will evolve into long-term savings in power and money, experts say.

"Some cities are ready for this, others aren't," said Mark Wolfe, executive director of the Energy Programs Consortium, which helps state energy programs establish efficiency policies.

Many cities are using the stimulus funding for energy efficiency retrofits or even LEED certification:

  • "Las Cruces expects to receive $888,000. Henry said it will help pay for a solar array and "all the green stuff" on an old adobe bank the city is converting into a natural history museum that will be certified under the U.S. Green Building Council's Leadership in Energy and Environmental Design (LEED) guidelines. The project will cost about $6 million."
  • "Take El Paso, Texas. The sprawling city is due to receive $5.8 million in energy efficiency grants. It will use $3 million of that to help finance a $15 million "performance contract" program aimed at cutting energy use 30 percent in 52 public buildings."

According to the article, in a recent meeting, the DOE also suggested that cities and towns could use the funds to create "carbon trading markets." I don't know about you, but municipal officials new to environmental policy might be better served retrofitting existing buildings instead of creating a complicated, regional carbon trading market.

New York Times, Green Building Law Update Agree

Green building liability issues are starting to hit the mainstream, as reflected in the New York Times' Green Inc. blog last week
 
Sadly, Green Building Law Update was not quoted or linked to.  However, Green Inc. did cite to two instances of potential green building litigation that have previously been discussed on Green Building Law Update.  From Green Inc.: 
Other interesting examples include a “green cement” controversy in Dallas and (though this is not a legal case) a delay in opening a Maryland elementary school that was partly due to changes in state environmental requirements.
You may recall my previous posts "Green Regulation Not Set in Stone" and "Maryland Green School Causes Delay, Extra Costs" that cover the Dallas and Maryland green building legal issues.   
 
It is great that the mainstream press is starting to pick up on the important legal implications from green building projects.  If any journalists out there want to discuss other story ideas (I have a ton!), just drop me an email (chris@greenbuildinglawupdate.com) or give me a call (703-749-1000) and we can set up a chat.

Freed: I Find Myself More Hopeful Than Ever

Today, we run Part II of the Eric Corey Freed interview.  I divided up the interview into two posts because the interview was long and Eric does a great job illuminating green building legal issues in Part II:   "Architects would not be able to guarantee LEED certification because the architect is not the one providing the LEED certification. . . .  I also don't think given the science of building technology that we can guarantee anything about energy usage."    
 
Eric's thoughts on green building blogs are also very interesting.  A few weeks ago, Eric got in a dust up with a blogger over an interview he gave to the New York Times.  Below, Eric provides some thoughts and lessons from the controversy. 
 
Finally, Eric concludes with one of my favorite interview quotes:  "I find myself being more hopeful now than ever."  Read on to find out why Eric is so hopeful.  

Chris:  When architect's are designing green building projects and they are going through the contract process, do you think architects should be guaranteeing energy usage reductions or LEED certification?

Eric:  Architects would not be able to guarantee LEED certification because the architect is not the one providing the LEED certification.  The certification is provided by the United States Green Building Council and they have been quite slow at fulfilling the demand that has occurred.  In my own office, on most of our LEED projects, we have received a letter saying we will have to wait another four weeks because the USGBC is backlogged.  So the idea of guaranteeing LEED certification is a slippery slope.  Especially, given that we have some clients who go pretty far in the LEED certification process, but when they find they have to wait another four to six weeks because of the USGBC backlog, the client says forget it and they walk away, because they can't wait. 

I think what a design team can provide is a guarantee that the building will be built safely and meet building codes.  I don't think they can guarantee anything subjective.  I also don't think given the science of building technology that we can guarantee anything about energy usage.  If you really think about it, we are not making the computer models detailed enough so that we can analyze them and say you are going to get 43.2% above the minimum energy standard.  We could but that has not been what is happening the world.  I think what we can provide is more of an anecdotal idea that you will get around 40% of the baseline.  Maybe that is fine.  At this point we are in the adolescent stage of building truly sustainable buildings.

Chris:  Have you been tracking the stimulus and the opportunities for the green building industry?

Eric:  I think it is a great thing to set aside billions of dollars for improving the efficiency of our existing buildings.  I am an old school, green building guy in that I believe the conservation and inefficiencies of our existing buildings are the low hanging fruit.  The trouble is they are not that sexy to anybody.  It is not that glamorous to say we are going to go into these thousand homes and add insulation to the attic.  Those things don't usually get into papers or the cover of architectural magazines.  I am excited the stimulus is drawing peoples' attention to our existing building infrastructure.  I don't know how the stimulus is going to trickle down to my clients, or our firm, or anything we are doing.  I know there are a lot of people clamoring to get a piece of the action.  So far I have been sitting on the sideline, and I am excited to finally see that we are talking about these things after nearly a decade of being in the dark ages.

Chris:  Last question, you were recently interviewed for a New York Times article.  Afterwards, I saw you commented on a blog post that criticized your interview and the five steps you gave for greening a home.  Do you think blogs are helpful to the green building community or are they proving a problem?

Eric:  I love blogs.  I am an avid reader of blogs.  I find blogs can be timely and responsive and if you look in the last five years, blogs have been responsible for breaking some of the more interesting stories that occurred, politically and otherwise.  But I also think that because blogs don't fall within the journalistic standard, it comes with a great responsibility that some people might not be paying attention to. 
 
In the case of Joseph Romm's blog that is read by so many people, my initial comment was why didn't you just call me, why didn't you just email me, I am a pretty easy guy to find and you could have gotten the whole story.  He was very nice and handled it quite well.  He apologized and wrote a follow up on his blog and on Grist.  In the New York Time article we only had room for five items and in truth we went through twenty one.  Joe was nice enough to post all twenty one so that way everybody could learn. 
 
In my mind, there is so much information out there that it is hard to know what to listen to and what to trust.  If you start to contradict good information simply because you don't feel it was the best information, then you start to really confuse people.  As I said to Joe, in that situation, I think we both lost because if people read my article and your article, they are going to say "forget both of them."  By doing that follow up that we did together, at least people can now walk away saying well now I know even more than I did before, I know why Joe and Eric were arguing.  Plus, look at the responsiveness of it:  the New York Times article came out, the very next day Joseph's article came out, the following day my rebuttal came out.  So we have this wonderful quick response to everything.  People can go back and look at the entire exchange. 

Chris:  Final thoughts?

Eric:  I get to travel all over the country and speak about green building and what I have discovered is that everyone shares the same concerns, more or less.   Everyone wants healthy buildings, energy efficient buildings, and that everyone seems in agreement that we need to find better ways to produce our energy.  We might disagree with the politics behind it, or how we go about it, but we have really decided that importing 70 percent of our oil from some, in some instances not so savory countries, is not a good thing. 
 
And this idea of red states and blue states, which has been so prevalent for the last eight years now seems to be fading away.  I think the recent election helped that along, but even before that, what we had were people that fell at the mercy of building developers, that didn't realize there were other options.  Now people are realizing they can get an energy efficient building, a healthy building, and it doesn't cost anymore and in a certain sense they are entitled to getting that.  That to me is exciting.  I find myself being more hopeful now than ever.