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

Last week, we looked at Air Conditioning, Heating, and Refrigeration Institute (ACHRI) v. City of Albuquerque, a case in which a federal court struck down portions of the Albuquerque Energy Conservation Code based on the doctrine of federal preemption.  In a construction code context, federal preemption often means that products and appliances are regulated at the federal level but states regulate building codes.  The decision in the Albuquerque case was not all that surprising as the code clearly went beyond federal efficiency standards for heating, ventilation, and air conditioning (HVAC) products. 

But a more recent case involving similar claims of federal preemption is not so clear. 

On May 25, 2010, the Building Industry Association of Washington (BIAW) and nine HVAC manufacturers and installers, filed a lawsuit in federal court against the Washington State Building Code Council.  The lawsuit alleges that one portion of a new Washington State Energy Code related to single-family residential energy efficiency is preempted by federal law.  The plaintiffs have asked for an injunction against the code. 

Changes to the State Code were passed on November 20, 2009 and the new code went into effect July 1, 2010.  Plaintiffs are particularly concerned with residential energy efficiency requirements under Chapter 9. I would suggest you download a copy of the complaint (PDF) and take a look at the chapter, which is attached as an exhibit starting on page 16.  Here is sample of the table from Chapter 9: 



In order to comply with Chapter 9, a home must achieve one credit from the entirety of Table 9-1.  On its face, the table appears to provide a variety of options for compliance, which would not infringe on federal efficiency requirements.  For example, option 3b in the table requires an efficient building envelope, and does not require specific efficiency for any product. 

According to the plaintiffs, though, the effect of Table 9-1 is that in order to comply, a number of options must be combined with the result that the code mandates product energy efficiency: 

"[T]he menu of 'options' in Table 9.1 is not extensive enough and in effect forces homebuilders to install high efficiency HVAC, water heating and plumbing equipment with performance standards in excess of those set by federal law."

Essentially, the plaintiffs are arguing that all compliance paths under table 9 require the installation of HVAC equipment that is more energy efficient than federal law. 

What do you of the builders associations' challenges of various state energy codes? 

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

This week, we are going to be looking at an issue near and dear to me: guarantees of LEED certification.  Two publications from last week made clear to me the wide variety of views on the issue:

(1) Washington Business Journal's On Site, "Hot Potato" by Vandana Sinha (print only):

For the most part, these players have come together time and again to score a LEED designation and plaque.  But what happens when one of the parties comes up short, and the project misses its LEED goal?  Who's at fault?
...

Green building mandates make the question even more important. . . . "As more LEED mandates come out that require certification, this becomes a bigger deal," says Cheatham, a LEED-accredited D.C. construction attorney with Watt, Tieder, Hoffar & Fitzgerald LLP, where his primary job is to worry about risks associated with green building and things like the D.C. performance bond.  "That's actual cost.  That's money.  The owner will recognize that risk and more likely want to hold somebody accountable at the end."

(2)  CoStar, "Guaranteeing LEED Certification" by Andrew C. Burr:  

Energy Ace Inc., an Atlanta-based energy services and LEED consulting firm headed by Wayne Robertson, is offering what it calls the industry's first LEED certification guarantee.

At a time when many cities and states have begun mandating LEED-certified buildings, “We can offer clients a certainty that their project is going to be certified and remove that anxiety,” Robertson said.

...

“One of the senior architects was saying that these mandates are putting us in a position to offer a guarantee, and we can’t do that,” Robertson said. “And I’m thinking, yes we can.”

Who is right?  Is my concern about LEED guarantees warranted?  Or are companies like Energy Ace Inc. able to avoid issues surrounding LEED guarantees?  Are we both right?  

Photo: Wade Roush

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    When people ask me about green building lawsuits and legal issues, I usually start with Washington D.C.'s Green Building Act of 2006. 
  
    The Green Building Act is a very progressive Act that requires both that private and public projects comply with specific green measures.  I have written more extensively about the Act in the article "What's Your Green Construction Strategy" available here. 

    The biggest problem with the Green Building Act is the green performance bond requirement.  When I read this performance bond requirement I literally gasped so I am going to post portions of it word-for-word.  Please note that "section 4" details green building requirements for privately-owned construction projects: 

    (b)  On or before January 1, 2012, all applicants for construction governed by section 4
shall provide a performance bond, which shall be due and payable prior to receipt of a certificate
of occupancy.

    (g)  All or part of the performance bond shall be forfeited to the District and deposited in
the Green Building Fund if the building fails to meet the verification requirements described in
sections 3 and 4.

Did you gasp?  If not, make sure you catch my later posts detailing the potential problems with this green performance bond.
 

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