D.C. Keeps PACE To Support Energy Efficient Homes

Do you remember Property Assessed Clean Energy (PACE) bonds? If you recall, in a June 2009 post, I proclaimed my undying affection for PACE bonds, which can serve as a financing mechanism to retrofit homes and buildings:

“PACE is a bond where the proceeds are lent to commercial and residential property owners to finance energy retrofits (efficiency measures and small renewable energy systems). OWNERS then repay their loans over 20 years via an annual assessment on their property tax bill. PACE bonds can be issued by municipal financing districts or finance companies and the proceeds can be used to retrofit both commercial and residential properties.”

My hope was that jurisdictions across the country would use PACE bonds to finance retrofits of homes and buildings. Turns out, PACE bonds have been proposed in my own backyard.

In December 2009, District of Columbia Mayor Adrian Fenty announced his "administration is preparing an application for a federal grant to create a $35 million revolving fund that would make loans to District homeowners and commercial property owners for energy efficiency improvements."

There are two basic steps to establish a PACE bond program. First, a state must pass enabling legislation. Second, the state must secure seed money for the revolving fund that will finance the PACE bonds. The D.C. government is proceeding forward with both steps:

"[T]he Council of the District of Columbia is expected to take up legislation that would create not only an administrative mechanism for running the program, but would create a 'property assessed clean energy' (PACE) bond program, that will ensure sustainable funding for this initiative in coming years. The legislation would allow the District to issue a series of conduit bonds up to $250 million. The federal funds would initially seed the fund and future bond sales would be backed by future tax collections.

The average age of a building in the District is about 72 years old, or about 30 years older than the national average. Given the age of the city’s building stock, officials see a greater need for energy efficiency retrofits and program managers expect the property owners could collectively save about $10 million in utility costs during the program’s first three years."

As an owner of a hundred-year-old row house, I am looking forward to the opportunity to apply for a PACE bond.

What do you think of this program?

Related links:

A Green Building Breakup (GBLU)

District Seeks $35M Grant for Energy Efficiency Fund (DC)

PACEnow (PACEnow.org)

Photo:  edwhitaker

Cities Will Soon Regulate Energy Use

The future of green building regulations usually starts in big cities. Cities like San Francisco, Washington, D.C. and New York City were some of the first to incorporate green building certification into regulations and building codes. The next frontier in green building regulations will be energy performance and New York City seems to be at the forefront. The New York Times recently reported this anecdote about future New York City green building policy:

The New York City Council is drafting a law that will dispatch auditors to measure large buildings’ energy use, with potential fines for landlords who fail to retrofit their systems.

There are other examples of regulations focused on energy efficiency:

The United States Green Building Council is also modifying its LEED rating system to reduce actual energy usage. With the launch of LEED 2009, the USGBC now requires the reporting of energy data. As we reported in September, Scot Horst, USGBC executive, has stated that the LEED certification will eventually require buildings to achieve a specified level of energy performance.

The eyes of the green building industry are focused on energy efficiency. You should be too.

Related Links:

In Washington, DC, Energy Star Benchmarking Law Arrives (CoStar Group)

The Future of LEED: Re-certification (GBLU)

So Who Left the Lights On? The System Knows (NYT)

Super Star Green Label Proposed (GBLU)

District of Weatherization

Reminder:  Don't forget to register for Green Building Law Update's Birthday Happy Hour

Sometimes, my fair city of Washington, D.C. can drive me crazy. There is no doubt we have our issues.

But one thing Washington, D.C. has going for it is its push to become more green. D.C. is at the forefront of the green building movement and it is taking full advantage of American Recovery and Reinvestment Act funding:

The District of Columbia will receive $8.1 million in federal funds to support its weatherization programs for low-income residents. The funding is part of a United States Department of Energy grant to the District under the American Reinvestment and Recovery Act. It will allow the District to weatherize an additional 785 homes over the usual workload of about 400 in the same period.

I have received a number of inquiries about the requirements for eligibility under the weatherization program. Here are the income requirements in D.C.:

If you have questions about eligibility for the weatherization program in your region, I would recommend reviewing the website dsireusa.org.

Finally, here is a great video put together by the White House about the D.C. weatherization program. This has me feeling (gulp) hopeful. Watch this and tell me Van Jones is not the coolest environmentalist on the planet.

 

Links:

District To Weatherize Hundreds of Additional Homes (DDOE)

Database of State Incentives for Renewables & Efficiency (DSIRE)

Green Jobs for a Green Future: Weatherization (YouTube)

D.C. Councilmember: Lack of Green Incentives Unfortunate

The Washington D.C. government has recently began incorporating Social Media 2.0 into its public outreach.  Agencies have Facebook pages, some are on Twitter and officials have even taken to participating in online chats with the public

I was very excited to learn that Councilmember Mary Cheh was conducting one of these online chats last Friday.  Cheh is the chairperson of the Committee on Government Operations and the Environment and very interested in the operation of the D.C. Green Building Act of 2006.  You may recall that I spoke at a D.C. Public Hearing on Green Building that was convened by Councilmember Cheh.  During the hearing, Cheh demanded accountability from those responsible for implementing the Act. 

After reading the chat, I am optimistic about the future of green building regulations in the District: 

1:37    [Comment From SG]
How can the DC government incentivize "green roofs" for private citizens to make it extremely cost-effective for average citizens and businesses to install?

1:41    Mary Cheh:  We are moving to do just that. The RiverSmart program, by DDOE, provides grants for mitigation of storm water outflow at residential properties. It could be used for green roofs. Anyone interested should check out the DDOE website at ddoe.dc.gov. Unfortunately, at the moment, for our businesses, we don't have much by way of incentives and we are relying more on a stick approach, which will make it more expensive for businesses if they fail to deal with water runoff. DDOE has a Business Outreach specialist who can offer advice on strategies for green roofs and other environmental initiatives.

Cheh's comment that it is "unfortunate" that there are not more incentives for green roofs has me optimistic that Cheh also supports further incentives for green building development.  The problem Cheh faces, of course, is that Washington, D.C. has very limited funds for incentive programs. 

So here's my proposed plan:  the D.C. Feebate.  Modeled after the Portland Feebate, D.C. could set up a separate green building fund.  If a project fails to achieve LEED certification or equivalent, the project pays a fee into the city fund.  If a project achieves LEED Certified or Silver certification, nothing happens.  Here's the kicker:  if a project achieves LEED Gold or Platinum, the project will get a rebate back from the fund. 

What do you think?
 

D.C. Energy-Efficiency Funds for Solar, Reusable Bags

When you heard that the Department of Energy would be providing $3.2 billion for Energy-Efficiency and Conservation Block Grants to states, what kind of programs did you have in mind?

I imagined weatherization of the leaky, old buildings in Washington, D.C.  I imagined an incentive program to build green in D.C.  I am imagined solar panels on every row house.  The last one is out there, but you get the point.  It appears that D.C. will use its Department of Energy funds for some solar panel development and for an advertising campaign that includes distribution of reusable canvas bags: 
"In D.C., environmental leaders have split the District's pot between $4.8 million for solar panels on 20 schools and curriculum additions to help those students be watchdogs for energy waste in their schools, as well as a $3.5 million advertising campaign that includes distributing canvas bags and compact fluorescent lighting to residents in exchange for plastic bags and incandescent bulbs." 
Funding solar panels on schools is a great idea.  Even better, the District plans to tie the program into school curriculum.  By getting the kids involved, D.C. will now have hundreds of eyes on school energy use and the students themselves can work to reduce their energy usage.  Makes sense to me. 

In order to make sense out of D.C.'s use of stimulus funds for canvas bags, you have to understand broader political issues in the City.  The Washington Post recently reported "a majority of the D.C. Council supports legislation that could tax not only plastic bags, but paper ones" at $.05 a pop.  Opponents are now gearing up to oppose the plastic bag tax.   By using stimulus funds to provide reusable bags to residents, the D.C. Council likely faces less opposition from its constituents.

I have no desire to debate the merits of the plastic bag tax, although you can discuss the issue further in the comments section.  Instead, my question is whether the purchase of reusable bags is an appropriate use of Energy Efficiency and Block Grant stimulus funds.  Thoughts

D.C. Adopts Renewable Energy Rebate

This week, I want to tell you about new green building developments in the D.C. metropolitan area. 

I like incentive programs related to green building.  D.C. recently came out with a solar rebate program that will most definitely increase the installation of renewable energy systems:

Beginning February 23, 2009, the program will provide rebates to eligible applicants to assist in the installation of a solar photovoltaic or wind turbine renewable energy system. Additional technology rebates are forthcoming in the second quarter of 2009 as regulations are adopted. Projects may include but are not limited to the installation of systems on single- and multi-family dwellings, as well as commercial and institutional buildings. 

Of course, I have to discuss some legal implications from this program.  D.C. is relying on a tried and true enforcement mechanism, the lien:  

Rebates will remain active for a period of six months (6 months) from the date of the award. The incentive contract requires installations to be completed in 6 months. If the system is not completed within 6 months, the system owner may request in writing a six-month extension. If an extension is not requested and/or the project timeline exceeds 12 months from the award date, the applicant is to return the rebate to DDOE. Failure to return the rebate will constitute a lien on the owner's real and personal property to secure repayment.

Filing liens on property in Washington, D.C. is not easy.  Releasing liens is even more difficult.  Are property owners and the District prepared for lien battles if problems do arise? 

Photo:  Jared Zimmerman

DC's Green Bond: The Worst Case Scenario

On Wednesday, we looked at the best case scenario that can result from the D.C. Green Building Act "performance bond" requirement.  We assumed that the green building "performance bond" was created.  The scenario was not pretty and involved extensive LEEDigation™ . 

Today we look at the worst case scenario. 
 
Imagine no new construction projects in D.C.  Imagine an emergency meeting with Mayor Fenty, Councilmember Cheh, major developers and the Surety and Fidelity Association of America and the National Association of Surety Bond Producers.  Sound far fetched?  It's not. 
 
I call this scenario the "Vancouver Catch 22." 
 
See, Vancouver went down the same road as Washington, D.C.  Many British Columbia jurisdictions, including Vancouver, began mandating green roofs.  Simultaneously, the Homeowner Protection Office required homeowner's insurance covering roofs for new developments.  A resourceful government official with the Homeowner Protection Office did some digging and sent out a letter emphasizing that insurers would not issue policies covering green roofs. 
 
What was the result? 
 
No coverage means no new residential developments.  This has left developers caught between the possibility of being mandated by city governments on one hand and shut out by insurers on the other. 
In the end, the Homeowner Protection Office had to call a meeting with the insurers, the building industry and government officials to find a solution.  Quite embarrassing.  A similar scenario could arise in D.C. if the City mandates green buildings and requires green building "performance bonds" but sureties refuse to issue the bonds. 
 
I know D.C. is working hard to resolve the bond language so this will be my last post for some time on this issue.  Which scenario do you think is most likely to occur?

 

D.C.'s Green Bond: Best Case Scenario

Today I am speaking once again on the D.C. Green Building Act "performance bond" issues (see slides in this post).  I have a new message for this presentation because, frankly, I am not certain we are getting anywhere.  If you need some background, here are all of the Green Building Law Update posts regarding this hot topic
 
I have come up with a best case and worst case scenario for the D.C. green bond requirement.  Make no mistake, neither scenario is very good.  Here is the best case scenario. 
 
First, the surety industry is able to come up with a bond that works for the Act's bond requirement.  Even better, by mandating green building, D.C. has more green buildings then any city in the nation.  
 
But here is where things start getting bad.  Some projects fail to achieve LEED certification.  The District of Columbia then has to call on the bond.  The Surety has two options at this point.  Either the Surety can forfeit the bond amount to D.C. or the Surety can defend the debtor (in this case the developer) against D.C.  In both scenarios, LEEDigation will ensue. 
 
What will this LEEDigation look like?  The Surety will file a lawsuit against the Architect or Contractor, blaming them for the project's failure to achieve LEED certification.  The Architect will file an additional lawsuit blaming the Contractor, or vice versa.  Oh, and the Architect will also file lawsuits against all of the Engineers.  The Contractor will go a similar route and sue all the Subcontractors. 
 
This is the best case scenario. 
 
When you mandate green building certification and require an enforcement mechanism, you are ensuring there will be failures.  Those failures will lead to LEEDigation.  Bottom line, best case scenario?  D.C. becomes the hotbed of LEEDigation. 
 
Unless of course some other jurisdiction implements another LEED mandate sooner. 
 


 

GSA's Green Stimulus Projects

General Services Administration, I am impressed. 

The American Recovery and Reinvestment Act mandated that the GSA determine projects that would receive $5.5 billion by April 3, 2009.  The GSA beat this mandate, making its list of projects available on April 2, 2009 (hat tip to the Washington Business Journal for breaking the story ).

If you were hoping to benefit from the GSA projects in the D.C. metro area, you have a much better opportunity of working on these projects in the District than in other surrounding localities.  D.C. is set to receive $1.2  billion for GSA projects.  According to the Washington Business Journal, "the amount of work slated for D.C. appears to be more than any other jurisdiction. By contrast, GSA plans to modernize only five buildings for $66 million in Virginia and two buildings for $25 million in Maryland."

A full list of GSA projects receiving funding is available here.  Here's a list of GSA projects in D.C., Virginia and Maryland slated to receive funding:

Washington D.C.

  • Department of Homeland Security headquarters, St. Elizabeths Hospital west campus, Southeast, $450,000,000
  • Department of Commerce Herber Hoover Building (phase II and III), 14th Street and Constitution Avenue NW, $225,638,000
  • GSA headquarters (phase I), 1800 F St. NW, $161,293,000
  • Lafayette Building (phase I), 811 Vermont Ave. NW, $128,827,000
  • Mary Switzer Building (phase II), 330 C St. SW, $68,241,000
  • Department of Interior Building (phase IV), 19th & C streets NW, $63,450,000
  • Department of State Truman Building, 2201 C St. NW, $14,735,000
  • Veterans Administration, $1,499,000
  • Lyndon B. Johnson Federal Building, $4,162,000
  • Elijah Barrett Prettyman Courthouse, $3,662,000
  • IRS Building, $1,506,000
  • Ariel Rios Fed Building, $1,337,000
  • GSA-Regional Office Building, $592,000
  • Wilbur J Cohen Building, $16,701,000
  • Winder Building, $1,865,000
  • Theodore Roosevelt Building, $23,551,000
  • Robert C. Weaver Building, $3,663,000
  • Howard T. Market National Courts, $2,070,000
  • Tax Court, $8,083,000
  • 601 - 4th St, NW, $2,150,000
  • US Secret Service Headquarters, $1,601,000
  • EPA East and West and Connecting Wing, $4,564,000
  • Reagan ITC and Garage, $16,161,000

Virginia

  • Franconia Warehouse, Franconia, $9,512,000
  • Martin V.B. Bostetter Courthouse, Alexandria, $1,699,000
  • Advanced Systems Center, Reston, $690,000. 
  • Poff Federal Building, Roanoke, $50,968,000
  • Robert Merhige Courthouse, Richmond, $3,500,000

Maryland

  • New Carrolton Federal Building, Lanham, $1,647,000 
  • CMS HQ Complex, Woodlawn, $23,723,000

The federal website, www.fedbizopps.gov, should have more information about these projects very soon.  Any luck finding information? 

Wondering how to successfully bid these projects?  My "Getting Green from the Stimulus" slideshow is a good start.

Photo Credit:  JPhilipson

Hawkins: Green Building Performance Bond Requirement is Viable

Last week, I had the pleasure of testifying before the D.C. Council regarding green building policies in the district.  As mentioned in my post last week, the focus of my testimony was the Green Building Act's "performance bond" requirement.  Before my testimony, I had the opportunity to hear George Hawkins, Director of the District Department of the Environment.  During his speech, Mr. Hawkins directly addressed the "performance bond" issue and many of the points I raised in my White Paper last Wednesday.  After you review Mr. Hawkins testimony, I would be very interested in hearing your thoughts. 

---

“Performance Bond” Requirement for Private Projects

I would now like to turn to the issue of performance bonds and criticism of this enforcement tool. Pursuant to the Act, commercial applicants will be required to submit a “performance bond.” If the building fails to meet the LEED certification requirements, “all or part of the performance bond shall be forfeited to the District.” Experts in the area of environmental finance analysis and DDOE’s research on the subject support this approach as an appropriate and sufficient enforcement mechanism to ensure compliance with the Act.

One of the concerns that has been raised is that “performance bonds” do not currently exist in the financial assurance world. There are, however, a number of laws and regulations that have required forms of financial assurance that at the time of the inception did not exist in the market. In each regulatory context, private financial markets have developed to provide the insurance, bonds, and other financial instruments necessary to demonstrate assurance. For example, before there were automobiles, there was no such thing as car insurance. When the law recognized a growing need to insure against harms that may be perpetrated by automobile drivers to others, the market rose to the demand.

The breadth of operations and environmental risks covered by current rules is an additional testament to the market’s ability to conform to and rise to the demand of a new form of financial assurance. For example, the Resource Conservation and Recovery Act (RCRA) requires that financial assurance be provided by the responsible party as proof that adequate funds will be available when needed to undertake the necessary corrective action at a RCRA treatment, storage, and disposal facility. Many states have their own laws requiring financial assurance, including our own DDOE requirement that developers post a bond equal to the cost of stormwater management infrastructure until DDOE verifies proper installation.

A second concern that has been raised is that it may prove difficult and financially burdensome for developers to provide letters of credit, collateral to obtain a bond, or escrow in amounts up to $3,000,000 (the maximum requirement under the Green Building Act). While opposition to new financial assurance rules is common regardless of industry, DDOE believes fears of business disruption from this new assurance requirement are unwarranted. When the District began to require condominium developers to place 10 percent of the cost of construction in an escrow account or provide a letter of credit under the Condominium Act, the same concerns were cited, and yet, this is now common practice.

An additional criticism of the current “performance bond” requirement is that the enforcement mechanism creates an inherent conflict of interest because those that would require forfeiture of the bonds would also directly benefit from the forfeiture. If forfeited, performance bond funds are to be “deposited in the Green Building Fund.” Under the Act, the Green Building Fund is to be used, in part, for “staffing and operating costs to provide technical assistance, plan review, and inspections and monitoring of green buildings.” On the contrary, it is important to note that many legally-required fees, fines, and penalties are used by governments to fund the operation of the program under which they are collected. For example, D.C. Official Code § 7-632 authorizes the establishment of a Regulatory Enforcement Fund to be used by DDOE to finance its regulatory practice. The Council has routinely authorized use of enforcement proceeds to finance future enforcement actions.

In summary, we believe the bond requirement under the Green Building Act is viable and can be implemented. We have already, and will continue to, participate in discussions with our sister agencies and stakeholders as to how this enforcement mechanism should best be implemented.

---

Do you think Mr. Hawkins is right?  Will the financial sector come up with a green building performance bond?

Proposed Revisions to the D.C. Green Building Act Performance Bond

I am very excited for an event taking place today:  the Public Oversight Roundtable on Green Building Practices hosted by the Council of D.C. Committee on Government Operations and the Environment. 

As you may recall, Green Building Law Update has repeatedly discussed the "performance bond" requirement of the D.C. Green Building Act .  As currently written, the D.C. Green Building Act, starting in 2012, will require a performance bond as a guarantee the private development projects will achieve LEED certification. 

Last week, I wrote that no bond, security or insurance instruments exist to guarantee LEED certification.  I have never liked pointing out problems without also providing a solution.  Today, at the Roundtable, I will be speaking about problems with the performance bond and highlighting two potential solutions:

(1) "Financial security" in the form of a fee if a project fails to achieve LEED certification; or
(2) a "D.C. Feebate" similar to Portland's feebate system

In order to crystallize these solutions, I wrote a white paper discussing this complex issue and potential solutions.  You can download "White Paper:  Revisions to Performance Bond Requirement of the D.C. Green Building Act" or read the white paper in its entirety after the jump. 

If you have any critiques or suggestions, please do not hesitate to share. 

Photo:  Echo9er

White Paper:  Revisions to Performance Bond Requirement of the D.C. Green Building Act

Chris Cheatham, Esq., LEED AP

On March 8, 2007, Washington D.C.’s Green Building Act went into effect.  With this Act, D.C. became the first major U.S. city to require LEED certification for private projects.  The key to any regulation mandating LEED certification is the enforcement mechanism.  As currently written, the Act requires that “commercial applicants”  post a “performance bond” that serves as a guarantee of LEED certification.  The “performance bond” requirement is problematic because no security or bond instrument has been created to guarantee LEED certification.  Two options will be proposed for replacing the “performance bond” requirement:  (1) financial security; or (2) a D.C. Feebate.  

I.  The Act’s “Performance Bond” Requirement

Under Washington D.C.’s Green Building Act of 2006, after January 1, 2012, non-residential, privately-owned buildings 50,000 square feet or greater must fulfill or exceed LEED for New Construction 2.2 or LEED Core and Shell 2.0 standard at certification level.   Importantly, the Green Building Act also requires “commercial applicants” who must comply with the LEED certification requirement to also submit a “performance bond.”  If the building fails to meet the LEED certification requirements, “all or part of the performance bond shall be forfeited to the District.”

Unfortunately, as written, compliance with the performance bond requirement of the Green Building Act will be extremely difficult, if not impossible for commercial applicants.  There are two reasons why compliance will be a problem.  First, a “performance bond” is not a security instrument used to ensure compliance with a regulation.  Suretyship is a “contractual relationship whereby one person engages to be answerable for the debt or default of another.”   In terms of a performance bond, a surety agrees to guarantee satisfactory completion of a construction project by a contractor.  If the contractor fails to build according to the plans and specifications, the surety must (1) complete the project; or (2) allow the owner to complete and the surety then pays the related costs to complete. 
The D.C. Green Building Act’s “performance bond” is, instead, a guarantee that the project will achieve LEED certification.  

There is no bond or security instrument that can be substituted for the “performance bond” requirement.  During my review of the Green Building Act performance bond requirement, I spoke with international sureties, the Surety and Fidelity Association of America, the National Association of Bond Producers and bond brokers.  The individuals I spoke with knew of no bond instrument that exists which could be substituted for the “performance bond” requirement.  

Additionally, as part of my work for Green Building Law Update, I have closely monitored major green building regulations.  To my knowledge, no municipality has successfully required a “bond” as a guarantee of certification.  Interestingly, Arlington County, through its bonus density program, requires “financial security (in the form of a bond or letter of credit or other form approved by the County Attorney)” as a guarantee that LEED certification will be obtained.  To date, two developers have had to comply with the Arlington County “financial security” requirement.  A copy of one “financial security” was obtained from Arlington County and clearly is a letter of credit.

II.  Enforcement Mechanism Options

There are two options for replacing the “performance bond” requirement with a new enforcement mechanism.  The first option is to replace “performance bond” with “financial security.”  Under Sec. 6 (c) of the D.C. Green Building Act, two alternative instruments are permitted in lieu of a performance bond:  a letter of credit or cash in escrow.  Thus, if “performance bond” was replaced with “financial security,” then “financial security” can be defined as an “irrevocable letter of credit from a financial institution authorized to do business in the District or evidence of cash deposited in an escrow account in a financial institution in the District in the name of the licensee and the District.”  Additionally, (c) under Sec. 6 can be struck under the proposed rule.

While creating a “financial security” requirement is the easy answer, it may not be the best solution.  Recent economic turmoil has created financing and cash flow problems for many developers.  As a result, it may be extremely difficult and burdensome for developers to provide letters of credit or escrow in amounts up to $3,000,000 (the maximum requirement under the Green Building Act). For comparison, under the current “performance bond” requirement, a developer of a 72,500 square feet privately owned nonresidential building that costs $28,000,000 would be responsible for a $560,000 “financial security” or “performance bond.”

The second option is to replace “Sec. 6 Performance Bond” with a new enforcement mechanism:  the Feebate.  Portland, Oregon is currently in the final stages of implementing a Feebate green building regulation.  Essentially, under the Portland Feebate, projects that do not achieve LEED certification are charged a fee.  The proposed fee will be in the range of $0.51 to $1.03 per square feet.  If a project achieves LEED Silver certification and implements specific green building strategies, the fee is waived.  If a project achieves LEED Gold or Platinum certification and implements specific green building strategies, the project receives a rebate that increases with the level of certification.

A Feebate properly incorporated into the D.C. Green Building Act would resolve two problems.  First, the Portland Feebate fee amount is less onerous then the current “performance bond” fee.  For comparison, under Portland’s proposed fee structure, a developer of a 72,500 square feet privately owned nonresidential building that costs $28,000,000 would be responsible for a fee between $36,975 and $74,675.  

Additionally, a Feebate would contribute directly to green building development.  An additional criticism of the current “performance bond” requirement is that the enforcement mechanism creates an inherent conflict of interest because those that would determine forfeiture of bonds would also directly benefit from the forfeiture.  If forfeited, performance bond funds are to be “deposited in the Green Building Fund.”  Under Sec. 8 of the Act, the Green Building Fund is to be used, in part, for “staffing and operating costs to provide technical assistance, plan review, and inspections and monitoring of green buildings.”  If Green Building Funds are used strictly for the Feebate, or even for a combination of the Feebate and education purposes, the conflict of interest will be eliminated.  

III.  Conclusion

The D.C. Council should be commended for the forward-thinking Green Building Act.  By simply passing this important Act, D.C. has become a leader in the green building industry.  As stricter requirements are phased in over the coming years, certain revisions are necessary to ensure a smooth transition for D.C. and the green building industry.  The D.C. Green Building Act’s “performance bond” requirement, as written, is unworkable.  Simply put, this type of security instrument does not exist and will not exist for some time, if at all.  There are two alternative options:  (1) “financial security” or (2) a Feebate system.  The latter option is preferable because it is less onerous on developers, will lead to more green buildings and removes the inherent conflict of interest in the current regulation.

If you have any questions, I am available to speak on this very important issue.  Thank you for your consideration.

Chris Cheatham, Esq., LEED AP
W: 703-749 1056
C:  202-553 3181
Email:  ccheatha@wthf.com
Website:  www.greenbuildinglawupdate.com

The Green Building Unicorn

I have been working with the D.C. City Council recently on revisions to the D.C. Green Building Act of 2007.  In particular, I have been looking for an enforcement mechanism that can be used to ensure compliance with LEED certification requirements for commercial buildings.  The problem is that the current Green Building Act requires a "performance bond" to guarantee certification.  Green Building Law Update has covered the issued extensively and you can read more about it here
 
My research has led me to one conclusion:
 
A security instrument guaranteeing LEED certification is the unicorn of the green building industry. 
 
Seriously. 
 
First, and most importantly, unicorns are mythical creatures.  A security instrument that guarantees green building certification is also a mythical creature. 
 
Let me make this clear: no bond or insurance instrument has been created that guarantees green certification.  This type of security instrument does not exist.  I have discussed the issue with sureties, surety industry groups, insurance companies and insurance brokers.  None of them know of a security instrument that guarantees green building certification.
 
You know what?  Everyone would love to have a unicorn (maybe not, but bear with me).  Similarly, everyone would love for a security instrument to exist that guarantees green building certification.  This instrument could be used in the hundreds of states and localities implementing green building regulations and the innumerable residential and commercial green building contracts being signed nationwide.  Unfortunately, this instrument does not exist and is years away from being developed. 
 
So if you are drafting a green building regulation, do not include the word "bond," "security" or "insurance" as an enforcement mechanism for a green certification guarantee.  You might as well just include the word "unicorn." 

Photo:  Martyn and Debz

Thank You Mr. Fedrizzi

To start this post, I want to thank Rick Fedrizzi , CEO of the United States Green Building Council.  On February 12, I attended a breakfast hosted by Bisnow at which Mr. Fedrizzi was the guest speaker.  I really appreciated his speech - he did not ignore the current economic climate but talked about the opportunities that will emerge from the green building industry.  
 
Even more important, at least for me, was the positive tone of his presentation.  Right after attending the breakfast, I was scheduled to speak to members of the Metropolitan Washington Council of Governments regarding suretyship.  You can see the slideshow presentation I used below.  After I left Mr. Fedrizzi's presentation, I thought about how I wanted to sound as positive as he did about the green building industry.  
 
Instead of focusing on problematic language in the D.C. Green Building Act surrounding the use of the word "performance bond" (a type of surety bond), I instead tried to emphasize how the Act could be corrected. 
 
Guess what?  It worked.  One of the members thanked me for providing a positive presentation instead of harping on the problematic language.  Another member told me that I had made learning about suretyship fun (or at least bearable). 
 
So Mr. Fedrizzi, thank you. 
 
But wait, there is a post-script for all of the Green Building Law Update readers.  You all have the opportunity to help draft new language for the D.C. Green Building Act.  I am seeking input on what enforcement mechanism should be used instead of a "performance bond."  I have ideas, but I want to hear what you think. 
 
What do you think?  Here are some resources to get started:
 My presentation: 

D.C. Council Delivers Present to Surety Industry

Here at Green Building Law Update, sometimes we wonder if we are just talking to our parents and significant other.  Then we get a comment or a great email from one of our readers and we realize someone is actually paying attention.  With that said, what happened this past week in the green building industry astounded and amazed Green Building Law Update.  

Earlier in the week, your humble author presented a seminar “Green Building Law from a Surety’s Perspective” to a client.  Just prior to the seminar, an article was published in the Washington Business Journal that highlighted the D.C. Green Building Act of 2006 performance bond requirement.  The first few paragraphs were sent to me but I didn’t have time to review the full article before the presentation. 

You may recall that this performance bond requirement drew the ire of the Surety and Fidelity Association of America (SFAA) and the National Association of Surety Bond Producers (NASBP) and Green Building Law Update.  When I first read the performance bond requirement, I literally gasped out loud and realized the green building industry may have some serious legal problems in the very near future.  Basically, the D.C. Council was demanding an insurance instrument that didn’t exist.

During the presentation to the surety client this past week, I highlighted the D.C. Green Building Act performance bond requirement as an enforcement regulation that was going to cause the surety industry problems.  After the presentation, I returned to my office and attempted to unbury myself from hundreds of emails.  With time on my hands, I opened the full version of the Washington Business Journal article and, once again, gasped out loud when I read the following paragraph:

Both trade groups, as well as the Surety and Fidelity Association of America, have met with D.C. officials to air their concerns, one of the first challenges to legislation that is among the first of its kind nationwide.

Alan Heymann, a spokesman for the D.C. Department of the Environment, said his agency has formed a working group with the Department of Consumer and Regulatory Affairs to address the surety industry’s concerns. Both agencies are tasked with implementing parts of the act.

Green Building Law Update is not taking credit for the D.C. Council’s reconsideration of the green building performance bond requirement.  But after writing numerous articles, posts and having discussions with the D.C. Council, I would like to think I played some small part in effecting change. 

Congratulations to the D.C. Council for taking steps to remedy what could have been a problematic regulation.  Congratulations to the SFAA and NASBP for pointing out this problematic provision.  Congratulations to the green building attorneys writing about these issues and helping the green building industry avoid legal problems. 

Of course, there are going to be more green building legal problems.  Green Building Law Update is excited about discussing these issues in 2009 and, hopefully, effecting more change.  

Related Links: 

A Week of Epiphanies: I Don't Mean to Diminish This But. . .

In continuing our week of epiphanies, here’s another one that struck us here at Green Building Law Update:  should governments consider getting out of the green building certification process? 

Yes, I realize this epiphany is out there and that practically every state has implemented some sort of green building regulation.  Over the past few months, we have profiled green building regulations in D.C., Virginia, Indiana and Maryland, to name a few.  But the more I think about these regulations, the more I become concerned that governments should not mandate certification, particularly of public projects.

Apparently, I am not the only one with these concerns.  For example, this article cites an Evanston, Illinois official that is concerned with certification cost:

At the meeting, Evanston residents spoke about the Green Building Ordinance, which was drafted by the Evanston Environment Board. . . .  Ald. Lionel Jean-Baptiste (2nd) cited the need to look closer at the cost of the ordinance.

"It's difficult in this current economic climate for anyone to build," he said. "We need to look more into the cost, and have greater discussion at the committee level." 

And here is another example, this time a LaCrosse, Wisconsin official voicing concern over the costs for green building certification:

“When I think about all this discussion about certification and not certification, I think we’re going to do all this good stuff so let’s just declare it a green building and go home,” Supervisor John Medinger said during the Law Enforcement Center Construction Committee meeting this week. “We say it’s a green building. Who says it isn’t? I don’t mean to diminish this, but I’m trying to see what we’re going to get with this $161,000.”

With the state facing a $3 billion shortfall, Medinger said the county will take a hit and can’t afford to spend money that brings no return.

These officials represent a minority view that government’s should not mandate green building certification due to the associated costs.  But Mr. Medinger drives home the point:  what are governments getting out of certification? 

Green building certification is primarily a marketing tool used to sell a building.  Green building strategies can most definitely be incorporated without obtaining certification and the results can still be confirmed through commissioning.  What benefits are cities and states getting when their public buildings are deemed certified?

Related links: 

Lights Go Out on Green Stadium Litigation

 

Today we are going to take a hiatus from the discussions of green building in the current financial markets and, instead, wrap up what potentially could have been major green building litigation.  On October 17, 2008, the Lerner family and the D.C. Government resolved litigation stemming from the LEED-Silver certified Washington Nationals Stadium. 

 

In previous Green Building Law Update posts, we focused on the stadium's certification and discussed the “green” stadium scoreboard that incorporated “high-definition LED technology that the Lerner family paid to have upgraded beyond the basic specifications called for in the ballpark's design.”  During negotiations over the protracted stadium dispute, it came out that Lerner representatives were unhappy, in part, about the lighting on the scoreboard that they paid for through an apparent change order.

 

Based on the published Settlement Agreement, the dispute over the LED-lit scoreboard remained a sticking point throughout the negotiations.  On page 1 of the Settlement Agreement, the Lerner Family agreed to withdraw and irrevocably waive “its demands for credits . . . for disputed scoreboard change orders.”  What were the final results of the negotiations?  The City will pay the Nationals $4 million to resolve the disputes and, in return, “the team will pay $3.5 million in rent that was due to the city last spring.”

 

With this settlement, the green building industry dodges what would have been the most substantial green building litigation to date.  But the day is coming.  Are you convinced that you need to have a rock solid green building contract?

 

Related Links

Anyone Using Energy Star Benchmarking?

To finish off the week at Green Building Law Update, we are going to attempt to answer another reader question with the help of all the readers out there. In a previous post, Anna MacLeod posted the following question: 

I need to find some DC-based architect, commercial building development companies, etc… Anyone who would be affected by the requirement described in the article below.

 

"Washington, D.C., was among the early cities to require privately owned buildings to meet LEED standards. Now, it is requiring the city government as well as private building owners to benchmark their buildings using the Energy Star Portfolio Manager tool and to submit performance data to the City, which will then publish it for the public.'

           

If anyone can help me by sending me any contacts or websites it would mean a lot to me.

 

I am glad Anna asked about this issue because I have been meaning to post on this topic. Back on July 15, 2008, the D.C. City Council unanimously passed The Clean and Affordable Energy Act of 2008.  Among the provisions in the Act is a requirement for Energy Star benchmarking:

 

Beginning in 2010, it would require commercial property owners to generate an Energy Star efficiency "score" for their buildings using free online tools provided by the Energy Star program. That score would be made available to the public by the District Department of the Environment (DDOE).

 

You may be asking yourself, what is the point of this benchmarking program? According to Cliff Majersik, the program director for the Institute for Market Transformation, the benchmarking program will create “a market-based demand for energy disclosure.” If the D.C. Government’s plan works, there will be increased demand for green buildings. In short, you might want to think twice about developing a non-green building in the District of Columbia. 

 

So can anyone out there help out Anna? If you are currently using the Energy Star benchmarking tool or The Clean and Affordable Energy Act of 2008 will affect you, please drop a note in the comment section below with more details and contact info for Anna. Thanks!  

 

Related Links:

Southern Builders v. Shaw Development: Green Building Damages

Today we are wrapping up our discussion of Shaw Development v. Southern Builders, one of the first examples of major green building litigation.   On Monday we discussed the basic facts of the case; on Wednesday we looked at the contractual green building requirements between the two parties; and on Friday we looked at Shaw Development’s stated causes of action. We conclude our discussion today by looking at the damages alleged by Shaw Development. 

Parties that bring claims or lawsuits based on a green building project’s failure to achieve certification must also prove damages. Often, owners seek green building certification to obtain government incentives or comply with regulatory mandates. In Shaw Development’s counter-complaint, damages were based on the owner’s failure to obtain green building tax credits: 

Shaw Development demands judgment in its favor and against Southern Builders for . . . Six Hundred Thirty-Five Thousand Dollars ($635,000.00) in tax credits for failing to construct the Project in conformance with a (LEED) “Silver Certification . . . .”

The tax credits for which Shaw sought damages were part of a State of Maryland green building tax incentive program. Many cities throughout the country have enacted similar tax incentives to entice developers to build green. Failure to achieve anticipated incentives can result in litigation similar to this case. Additionally, many cities, including Washington, D.C., New York, Los Angeles and San Francisco, have adopted mandatory green building laws and codes that will require the incorporation of green building strategies into all construction projects. Failure to comply with green building laws and codes creates additional liability risks for contractors. 

 

As inexperienced parties undertake green building projects, unmet expectations will result in disputes and lawsuits. Parties must protect themselves from the start by clearly stating all parties’ understanding of the green building certification process and what is to be achieved. Furthermore, parties must fully understand the specific requirements of the green building incentives and mandates that apply in their locality. While Shaw Development v. Southern Builders was apparently settled without a trial, further green building litigation is just around the corner and is unlikely to be as easily settled.   Check back with Green Building Law Update as we continue to discuss how to mitigate your green building risks.   

Stadium LED Lights Strike Out?

Back in August, GBLU discussed protracted disputes between the Washington D.C. Government and the Washington Nationals owners over the construction of the Nationals’ new stadium.  The dispute centers on when the LEED certified stadium was substantially complete.  To date the Lerner family, the team owners, have withheld payment of $3.5 million as a result of the dispute.  It appears the dispute is not going away either: 

In negotiations with the D.C. Sports and Entertainment Commission, which oversaw stadium construction, Lerner representatives have cited problems with the ballpark, including the quality of the sound system and the lighting on the scoreboard, according to sources familiar with the talks who spoke on condition of anonymity because of the dispute. 

What does this have to do with green building?  The lighting on the Nationals’ scoreboard is “made possible by high-definition LED technology that the Lerner family paid to have upgraded beyond the basic specifications called for in the ballpark’s design.”  LED lighting uses significantly less energy than traditional lights and is an increasingly popular green building strategy in stadiums, like the Beijing Olympic Basketball Gymnasium.  In this case, it appears the Lerner family’s expectations of the LED scoreboard lights were not met.  

Could this result in significant green building litigation between the D.C. and the Lerner family?  The City seems to think so:

Matthew Cutts, chairman of the D.C. Sports and Entertainment Commission, which oversaw stadium construction, said the agency is in the process of hiring the law firm Seyfarth Shaw to handle the case.   

Related links:

Congress Drills Down Green Building Regulation

You may remember that in previous posts, GBLU warned that September was going to be a big month for green building regulations in Washington D.C. It was anticipated that the D.C. City Council would vote on new green building codes on September 16 but the codes were tabled to allow for more feedback from affected parties. But there was still significant green building regulations voted on yesterday in D.C.

Late Monday night, H.R. 6899, the Comprehensive American Energy Security and Consumer Protection Act, was passed by the House of Representatives by a vote of 236-189. The big story will be that an energy bill was passed that permits more oil drilling off U.S. Coasts. But as expected, the legislation also included green building mandates. 

 

Among these mandates is Title IV – Greater Energy Efficiency in Building Codes. This section requires the Secretary to update the national model building energy codes and standards at least every three years to achieve specific overall energy savings, compared to the 2006 IECC for residential building and ASHRAE Standard 90.1-2004From prior discussions, you may remember ASHRAE 90.1-2004 is the energy standard used by the USGBC’s LEED rating system

 

But GBI’s Green Globes rating system also found its way into the legislation. Under Title VI – Green Resources for Energy Efficient Neighborhoods, the legislation described requirements for both residential and non-residential projects seeking HUD assistance. Among these requirements, to qualify for HUD assistance projects can comply with one of numerous green building standards:

 

1)      The national Green Communities criteria checklist

2)      The gold certification level for the LEED for New Construction rating system, the LEED for Homes rating system, or the LEED for Core and Shell rating system

3)      GBI’s Green Globes assessment and rating system; or

4)      The National Green Building Standard

 

It seems peculiar that this legislation would require LEED gold certification but not include a similar requirement for Green Globes. Like the LEED rating system, Green Globes awards “globes” for each level of certification. The equivalent of LEED gold certification would be achieving three globes through Green Globes. 

 

Word on Capitol Hill is that the Senate is likely to adopt a different version of energy legislation so it is unclear whether green building mandates will be included in the Senate’s version.   

Green Building an Election Issue?

One factor that has significantly increased demand for green building is government regulation that requires green building strategies. So far, GBLU has focused green building initiatives at the city level. While there has been some federal green building legislation, GBLU anticipated major federal green building legislation would emerge from Congress in 2009.  It now looks like federal green building mandates could be voted on before the 2008 presidential election ever occurs. 

As Congress returns to Capitol Hill today from the two parties’ conventions, one of the primary issues on the table is energy policy and offshore drilling.  A recent Greenwire article detailed how Democrats intend to offer a piece of legislation that includes energy-efficiency standards for buildings in order to counter the congressional Republicans demand for offshore drilling:

Top House Democrats say that shortly after Congress reconvenes, they will put on the floor a piece of legislation that will include an expansion of offshore drilling but also a renewable electricity mandate, energy-efficiency standards for buildings and oil industry tax provisions.

Under the USGBC’s LEED rating system, projects must satisfy a minimum energy performance by complying with provisions in ASHRAE 90.1-2004. The Democrats’ legislation could require compliance with ASHRAE 90.1-2004, or a similar standard, like the EPA’s Target Finder.  

 

GBLU was on Capitol Hill on Friday to discuss what additional Federal green building legislation might look like. The consensus was that Federal green building legislation would most likely come in the form of mandates for specific green building components. For example, Federal legislation could mandate the use of Energy Star compliant appliances. The list of possible green building mandates is long: insulation, certified wood and pervious paving are just a few. 

 

If you think of other potential green building mandates, please submit a comment below. GBLU would like to put together a list and discuss what each mandate could look like.