Green Building Law Update

The Intersection of Real Estate, Science, and Law

Sky Wars – What FAA Drone Delivery Rule Challenge Means for Commercial Real Estate

The promise of drone package delivery – swift, efficient, reduced energy intensity, protection from porch pirates, and cost reducing last mile logistics – offers compelling opportunities for commercial real estate, from office parks and flex parks to multi family.

Battery powered delivery drones typically use no fossil fuel directly during flight. For light parcels, they can consume more than 94% less total energy than traditional delivery trucks, with corresponding reductions in greenhouse gas emissions.

Yet this vision of aerial innovation now faces turbulence.

A group of 15 states and Harris County, Texas, has launched a legal challenge against the Federal Aviation Administration’s nationwide environmental review for drone delivery operations, a move that could reshape the regulatory landscape and impact your real estate strategies.

The Looming Legal Battle: States vs. FAA on Drone Delivery

On September 28, 2026, petitioners filed a lawsuit in the Second Circuit, seeking to overturn the FAA’s July 28, 2026, Final Programmatic Environmental Assessment and Finding of No Significant Impact/Record of Decision for drone delivery operations. While the initial filing is procedural, the 17 states’ previous comments to the Environmental Assessment outline their probable arguments: the FAA’s broad, programmatic approach fails to adequately assess the cumulative, location specific impacts of potentially high volume, low altitude drone flights.

FAA’s Vision: A National Baseline for Drone Operations

The FAA’s Environmental Assessment aimed to streamline the environmental review process, establishing a national baseline for future drone operator authorizations. Recognizing that exact hub locations and operating areas are unknown until an operator applies, the FAA “Finding of No Significant Impact” under the National Environmental Policy Act would support later approvals, while retaining discretion to require additional project or operation specific NEPA review where needed.

This Environmental Assessment included reviewing the noise impacts ⁠of 1,150 average drone deliveries from a single hub flying at an altitude of less than 400 feet.

Indeed, the FAA has continued conducting site specific Environmental Assessments for major operators like Amazon Prime Air and Zipline, demonstrating a tiered approach. Congress, in the FAA Reauthorization Act of 2024, explicitly directed the agency to develop programmatic approaches for advanced aviation operations.

And drone delivery operations are already ‌happening ⁠in states including Texas, Arkansas, Florida, and Michigan, under an FAA waiver process.

In the near term, a suburban office or flex park or multi family project will designate a drone receiving station a/k/a drone ports, serving as an amenity to large numbers of tenants, if not also surrounding businesses.

States’ Counter Argument: Challenging Programmatic Environmental Review

But the Democrat Attorneys General from Maryland, New York, California, Massachusetts, Wisconsin, Michigan, and ten other states contend that a nationwide programmatic Environmental Assessment is insufficient for evaluating the localized and cumulative environmental effects of drone delivery. Their concerns span the gamut:

Scope and Forecasting: Aggregating impacts nationally, they argue, masks significant local issues and relies on an insufficient picture of future growth. They urge a programmatic Environmental Impact Statement and site specific Environmental Assessments for each location.
Noise and Overflights: A primary contention is the failure to adequately consider nonaviation “noise” sources, cumulative low altitude overflights, and impacts to noise sensitive land uses. Public opposition often cites noise and visual pollution.
Safety and Environmental Risks: Challenges extend to lithium battery fire risks, hazardous materials, wildlife exposure, powerline interactions, and cybersecurity vulnerabilities.
Alternatives and Mitigation: Petitioners also question the FAA’s consideration of alternatives and the enforceability of proposed mitigation measures, seeking objective triggers for supplemental review.

FAA’s Defense: Procedural Deference and Tiered Review

The FAA will likely respond that NEPA is a procedural statute and its review warrants deference consistent with recent Supreme Court decisions. They will emphasize the Environmental Assessment’s role as a foundational document, enabling subsequent tiered, site specific reviews as applications for drone delivery logistics hubs come forward. This flexibility, they will contend, balances national integration and country wide reduced fossil fuel use for deliveries with local environmental considerations.

Beyond the Courtroom: Local Concerns and Development Realities

The partisan Blue States legal challenge is a stark reflection of irrational opposition to drones. Local governments typically retain authority over land use and zoning, regulating ground infrastructure like drone “nests” or “hubs” where delivery drones take off from (as opposed to locations where they make deliveries). This means even if the FAA’s Environmental Assessment stands, developers may still navigate a complex patchwork of local ordinances.

Strategic Considerations for Commercial Real Estate Developers

For commercial real estate owners, this lawsuit underscores the critical need for proactive engagement and robust advocacy now.

Site Selection: Evaluate potential drone delivery hub locations not only for operational efficiency but also for community sentiment and existing or potential local land use restrictions, noise ordinances, and environmental sensitivities.
Protection from Porch Pirates: Thieves who steal delivered packages are a nationwide problem that can be mitigated in office and flex parks as well as multi family real estate; centralized drone delivery hubs that can in part address the issue for local government police and can mitigate community opposition.
Environmental Diligence: While the Environmental Assessment provides a federal baseline, anticipate the need for granular, site specific environmental assessments, especially concerning noise and potential cumulative impacts.
Market Opportunity vs. Regulatory Risk: The market for drone delivery infrastructure is emerging, but regulatory uncertainty remains a significant factor. Monitor this litigation closely, as its outcome will clarify the necessary environmental review burden.

Navigating the Airspace: A Call for Proactive Engagement

The states’ challenge to the FAA’s programmatic drone delivery environmental review highlights the current political tension between federal mandates aimed at fostering innovation and local concerns about community hue and cry. The Luddite challenge ignores the paramount environmental benefit that battery delivery drones consume exponentially less energy than a delivery by truck.

For commercial real estate owners, successful integration of drone logistics will depend not just on technological feasibility, but on navigating this complex legal and social airspace with foresight and a commitment to offering an amenity to many and an economic benefit to other stakeholders. Proactive environmental due diligence is no longer optional but essential for building the drone delivery infrastructure of tomorrow.

My prediction: Routine drone delivery in commercial office parks and flex parks will become common and a market differentiator before widespread residential drone delivery.

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Join us for the next in our webinar series at the Intersection of Business, Science, and Law, “Phase I Environmental Site Assessments “Just Changed,” on Tuesday, November 10 at 9 am. The webinar is complimentary, but you must register here.

Your House’s Roof Is Not a Free Solar Platform

By Stuart Kaplow on October 25, 2026 Posted in Energy, Environmental, Solar Panel

We are often asked about installing residential rooftop solar panels, which should not be surprising given that as of early 2026, more than 5 million single family homes (i.e., around 5.8% of roofs) have rooftop solar panel systems. That is meaningful early adoption, but it also means rooftop solar remains a property specific decision, not a universal home improvement, given that more than 94% of U.S. single family homes do not have solar panels on the roof.

There is much we do not yet know about this subject because more than 70% of U.S. rooftop solar installations have been installed since 2019, with the average age of a rooftop solar installation being a relatively young three to seven years old, with a useful life often described as 25 to 30 years.

If the objective is to maximize financial return and minimize risk while ‘saving the planet,’ there are several legitimate reasons not to install rooftop solar on a residence. The answer depends heavily on the roof condition, electric usage, expected length of ownership, and views on regulatory risk.

Net Metering Economics Are Becoming Less Favorable

One of the strongest economic arguments for rooftop solar has historically been net metering. Net metering, the credit for power exported to the grid, has been a major part of rooftop solar dollars and sense. A potential concern is regulatory change. The rules vary by state and are evolving. California’s net billing regime now compensates most new customers differently from its former retail rate net metering structure; and Maryland, meanwhile, is moving toward a successor program scheduled for July 1, 2027, where new customers with future exported electricity are expected to receive less favorable compensation than current retail rate credits.

The practical implication is that the payback period for a system installed in the future will be longer than past projections.

Roof Replacement Becomes More Expensive

If the roof has less than about 15 years of life remaining, solar can create significant future materials and labor expenses.

When a roof is replaced, the panels must be removed. Racking systems may need modification. And panel systems must be reinstalled and recommissioned.

The cost of removing and reinstalling solar panels can add thousands of dollars to a future roof replacement project.

Solar Complicates Home Sales

Although solar can arguably add value in some circumstances, complications often arise in a contemplated sale of the house when:

Panels are leased rather than owned.
There is an outstanding solar equipment loan.
Buyers are unfamiliar with solar contracts.
Roof condition becomes a concern.
Technology improvements make even a few years old panels less desirable.

Some buyers see rooftop systems as an asset, but most see them as another item requiring inspection and maintenance.

We blogged about some of these environmental externalities in 2022, at Selling the Sun: Sale of a House with Solar Panels is Fraught with Peril | Green Building Law Update

Risk of Roof Damage or Water Intrusion

A properly installed system should not leak. However, the majority of rooftop installations require roof penetrations and mounting hardware.

Consumer protection organizations have cited complaints of roof damage during installation to systems installed on roofs that were poor candidates for solar, and improper workmanship.

While the risk is initially an installer quality issue rather than a solar technology issue, there are today few installations that are more than five years old, and it is not clear what the implications will be when chemical sealants dry out, crack, or degrade from UV exposure and thermal expansion over the decades long period that panels are expected to remain in place.

Fire and Electrical Risks

The overall risk of a well installed residential system catching fire is low, but it is not zero.

Industry fire safety experts have identified concerns involving faulty wiring, DC arcing, connector failures, and improper installation practices. But similar to water leaks, over the decades, wires may fray, and equipment may fail, resulting in fire hazards. The reality is that greater fire hazards and thermal risks exist from batteries that may be installed as part of the solar system. The Panels themselves are not going to catch fire.

Insurance and Liability Considerations

Most homeowners can insure rooftop solar under their existing homeowner’s policy at a modest increase in rates (but many of those policies exclude most solar panel related claims). Home replacement cost may increase, but there has been very little claims history arising from solar panels.

Panels Reduce Roof Access

Solar arrays can make chimney repairs harder, gutter cleaning more complicated, and future roofing work more expensive.

For many, this is an issue, not a problem, but often overlooked during consideration.

Limited Financial Benefit for Many Homes

If the household has low electricity consumption, if a downsizing in the number of occupants is anticipated, or if residents are planning significant time away from the property, the economic return may be weak.

Many of the industry projections are based on two adult, two children households, so a two person household using less electricity will see a much slower payback than a larger household charging electric vehicles and the like.

Tree Shading Can Make Solar a Poor Investment

Many suburban properties, especially in older neighborhoods, have mature tree canopies. And over the more than two decade life of a solar installation, trees are going to grow.

Even partial shading can significantly reduce production. If large shade trees are important to you for aesthetics or cooling (.. urban heat island effect), solar economics may not work well.

Better Alternatives Exist

Homeowners can obtain equivalent, and usually better, saving of dollars and saving of the planet through community solar without putting any equipment on the roof.

For most homeowners, alternatives can provide environmental benefits with fewer complications:

Community solar subscriptions.
Utility scale renewable energy purchases (.. buy green power).
Energy efficiency upgrades to household equipment.
Improved insulation and air sealing.

In most homes, the first dollars spent on efficiency improvements produce far greater savings than the first dollars spent on solar.

There is no single homogeneous residential building type in the United States, but rooftop solar does not make sense in the vast majority of instances.

It should be lost on no one, that a recent poll of homeowners in Maryland with current rooftop solar reported that more than 68% would not install solar again.

Utility scale solar installations win over residential installations in raw generation costs and not only have a lower cost per kilowatt hour, but installation and maintenance logistics make more sense, although the biggest advantage may be grid and voltage control with direct connections to high voltage lines.

Conversely, if you have a newer south facing roof, high electric bills, plan to remain in the home for 15+ years, and can purchase (rather than lease) the system, charge your electric vehicle, many of these concerns become less significant.

All of that said, this is not to suggest solar installations are dead. In fact, it was reported earlier this year that in China solar panels are being installed at the rate of 100 panels per second. Although for several years each of those panels installed is at a dollar loss and, maybe most important for this post, in China few, if any, of those panels are ever installed on a residential rooftop.

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Join us for the next in our webinar series at the Intersection of Business, Science, and Law, “Phase I Environmental Site Assessments “Just Changed,” on Tues., November 10 at 9 am. The webinar is complimentary, but you must register here.

Scope 3 GHG Emissions Are Not Dead – Australia Says They Are A Global Liability for U.S. Businesses

By Stuart Kaplow on October 18, 2026 Posted in Environmental, GHG, greenhouse gas

Many American businesses welcomed the SEC’s retreat from proposed Scope 3 greenhouse gas emissions reporting. But an Australian High Court decision shows why value chain emissions remain a material legal risk. The court invalidated a coal mine expansion approval because the planning authority failed to consider conditions addressing substantial downstream emissions.

While from afar and not binding on U.S. businesses, the ruling adds significant Scope 3 emissions legal precedent with implications for domestic corporate accountability and commercial real estate risk.

What the Australian Court Actually Held

In a 3-2 decision, Australia’s highest court invalidated approval of an expansion of MACH Energy’s Mount Pleasant coal mine in New South Wales. The court focused on the statutory duty requiring the planning commission to consider Scope 3 greenhouse gas emissions stemming from the extracted coal, nearly all of which would be burned overseas.

The expansion would double output through 2048 and generate an additional 870 million metric tons of carbon pollution, with almost 98% classified as Scope 3 emissions arising from the eventual combustion of exported coal.

The High Court held that the commission breached a statutory obligation to consider whether its approval should include conditions “aimed at ensuring .. that greenhouse gas emissions are minimized to the greatest extent practicable.”

Beyond Borders and ‘Someone Else’s Problem’: The Court’s Reasoning

The court rejected the notion that emissions generated outside Australia or by third parties are “someone else’s problem.”

This decision was not a radical new mandate but rather a reinterpretation of existing statutory duties in light of evolving climate science and global climate law. The court likely correctly affirmed that a planning authority’s statutory responsibility to minimize emissions must encompass the full environmental footprint, including indirect but foreseeable impacts.

It should be lost on no one that Australia is the world’s second largest exporter of coal.

A Converging, but Not Uniform Global Trend

The ruling aligns with a growing body of international legal precedent. The International Court of Justice’s advisory opinion on the obligations of states in respect to climate change, issued in 2025 shortly before the underlying Australian appeals court ruling, expressly stated that fossil fuel production, consumption, the granting of exploration licenses or the provision of subsidies “may constitute an internationally wrongful act” attributable to the state involved.

Courts in Norway and the United Kingdom have required authorities to consider downstream emissions when approving fossil fuel projects. The Dutch courts, in the context of Milieudefensie v. Shell, have emphasized a duty of care for companies to reduce value chain emissions.

Where U.S. Real Estate Exposure May Arise

This global trend creates U.S. risks even without a federal Scope 3 disclosure mandate. And yes, California does have a Scope 3 disclosure law phasing in 2027 that applies to companies with more than $1 billion in annual revenue that do business in California. Implementation remains subject to regulatory and legal developments.

Consider the parallels: just as an Australian coal mine exporting its fossil fuel product faces scrutiny, a U.S. oil company exporting its fossil fuel gasoline could similarly encounter legal challenges. For commercial real estate risk, the implications are also broad:

Development & Construction: Emissions from the production of steel, concrete, glass, and other materials (upstream Scope 3) are increasingly under scrutiny. Developers’ due diligence should extend to their procurement.
Operations & Leasing: The energy consumption and waste generation of tenants can constitute downstream emissions for building owners, influencing asset value and attractiveness to environmentally focused investors.
Financing: Lenders are being pressured to account for “financed emissions” related to their real estate portfolios, adding another layer of transition risk.

Ignoring indirect emissions no longer appears viable. And while the lesson is not to build a comprehensive inventory immediately. In a marketplace where commerce regularly crosses borders, regulators across the world, and increasingly, courts globally, are demanding a broader view of environmental responsibility.

A Proportionate Risk Management Approach

The Australian High Court’s ruling is a powerful reminder that focusing solely on direct emissions (Scope 1 and 2) or taking cover behind the fact that there are no federal mandates is an incomplete strategy. For commercial real estate owners and businesses with international tenants and customers, proportional engagement with Scope 3 risk is no longer just about theoretical future compliance; it’s increasingly a strategic imperative.

In domestic jurisdictions with greenhouse gas emission laws directed toward commercial real estate, including Maryland and California, consider that if a tenant leases space and pays its own utilities (triple net leases or direct submetering), that energy consumption is technically Scope 3 (downstream leased assets) for the landlord.

Practical Takeaway: U.S. businesses and real estate owners need not adopt costly and speculative Scope 3 accounting programs merely because foreign courts or activist regulators favor them.

Outright dismissal is equally shortsighted. While federal command and control is halted, private capital markets and administrative litigation are quietly enforcing their own standards. Project opponents are already using the logic of the Australian decision to weaponize environmental review statutes (like NEPA and CEQA). Concurrently, institutional equity and cross border lenders increasingly price indirect carbon risk into their underwriting and asset level diligence.

Sophisticated businesses should consider commercially focused measures:

Protecting entitlements: Ensure state and local approvals consider reasonably foreseeable indirect environmental impacts to survive judicial review.
Modernized Lease Covenants: Update commercial lease forms with ‘green’ provisions that secure contractual rights to tenant energy and utility data, satisfying government disclosures, apportioning new capital costs, and avoiding assuming operational liability for conduct the landlord does not control.
Pragmatic Procurement Diligence: Focus supply chain scrutiny where international tenants and stakeholders demand it, such as identifying embodied carbon in structural steel and concrete, without creating open ended corporate exposure.

The objective is to protect approvals, portfolio liquidity, balance sheets, and defensible business decisions in an increasingly litigious and market driven climate landscape. The absence of a federal Scope 3 mandate does not eliminate indirect emission risk; it only changes where that risk appears.

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From Emergent to Enforceable – PFAS, CERCLA, and the New Era of Real Estate Due Diligence

By Stuart Kaplow on October 11, 2026 Posted in Codes and Regulations, Environmental, Federal

For commercial real estate owners and business professionals, the landscape of environmental liability continues to shift. The recent decision by the U.S. Court of Appeals for the D.C. Circuit in Chamber of Commerce of the United States of America v. EPA has unequivocally affirmed the U.S. Environmental Protection Agency’s authority to designate PFOA and PFOS, constituents of the PFAS group of “forever chemicals,” as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (the Superfund law).

This ruling, issued on August 18, 2026, by a unanimous three judge panel, is not merely a legal footnote; it reshapes risk assessment and transactional strategy for these synthetic chemicals that have been widely used since the 1940s and are highly persistent in the body and in real estate.

A practical takeaway is that this immediately changes how Phase I Environmental Site Assessments are ordered.

A Deeper Dive: Why the Court Affirmed EPA’s Authority

Industry groups challenged the EPA’s 2024 rule designating the two forever chemicals as hazardous substances, arguing, among other things, that the agency misinterpreted the statutory standard for hazardous substances and failed to assess costs adequately. However, the D.C. Circuit rejected the challenge, siding squarely with the EPA. The court upheld the EPA’s interpretation that “may present substantial danger” under CERCLA Section 102(a) signifies a possibility of harm, not a certainty, thereby affirming the scientific basis for the designation.

The court also found EPA’s cost benefit analysis and adherence to administrative procedure to be legally defensible. In essence, the court recognized EPA’s prerogative to designate substances posing potentially significant environmental and health risks under the existing legal framework, even if the financial implications are substantial.

And the costs of this public policy shift will be substantial, as we blogged in PFOA and PFOS Now Hazardous Substances Under Superfund Law, where we pointed out, “this is a true bete noire where a peer reviewed 2020 study cited approvingly by the EPA describes 99.7% of Americans having detectable PFAS in their blood!” That is, PFAS is so widespread that, locking the barn door after the cow has bolted, solutions will be hard to find.

The CERCLA Net Widens: Understanding Strict and Retroactive Liability

The D.C. Circuit’s decision activates CERCLA’s powerful liability scheme for PFOA and PFOS. This means CERCLA Liability is strict, retroactive, and joint and several. Current and past property owners, operators, generators, and even transporters can be held liable for cleanup costs, regardless of fault or whether their actions were legal at the time. This broad net can ensnare parties with even tangential connections to properties where PFOA or PFOS are found, creating significant Superfund implications far beyond traditional polluters.

Redefining Due Diligence in Commercial Real Estate Transactions

The ruling mandates a profound shift in environmental due diligence. Standard Phase I Environmental Site Assessments, which historically excluded emerging contaminants like PFAS, are no longer sufficient to provide comprehensive risk assessment or potential CERCLA liability protections.

Moving forward, commercial property risk assessments must explicitly expand the ASTM E-1527-21 scope of Phase I ESAs to include PFAS considerations. Where warranted, Phase II subsurface investigations will become critical to confirm the presence and extent of PFAS contamination, providing a baseline for potential liabilities. This will inevitably increase the complexity and cost of preacquisition due diligence.

Navigating Transactional Agreements and Proactive Risk Allocation

The newfound CERCLA implications elevate the importance of robust property transaction indemnities and contractual risk allocation. Buyers and sellers must meticulously negotiate representations, warranties, and indemnification provisions to address potential PFAS liabilities explicitly. Indemnities should anticipate future regulatory changes and potential claims, going beyond current regulations. Sellers may be hesitant to permit preacquisition sampling due to the risk of triggering reporting requirements, demanding creative solutions for deal structuring.

EPA’s Enforcement Discretion: A Limited Shield Against Liability

While the EPA has issued an EPA Enforcement Discretion Policy, aiming to focus its efforts on “major PRPs” (manufacturers, industrial users) and exercise restraint with “passive receivers” (e.g., municipalities, farmers), this offers only partial comfort. This policy does not eliminate statutory liability under CERCLA, nor does it preclude private parties from pursuing cost recovery or contribution claims against any potentially responsible party. Businesses must understand this discretion is a shield against government action, not a blanket immunity from all environmental law liability.

The Inescapable Cost of PFAS Management and Remediation

The designation of PFOA and PFOS as hazardous substances will inevitably lead to an increase in site remediation obligations. The EPA’s low maximum contaminant levels for PFAS in drinking water will drive expensive and technically challenging cleanups. Properties with historic industrial uses, firefighting foam application, or waste disposal activities are particularly vulnerable. Even sites previously deemed “clean” or “no further action” may face reevaluation and new cleanup requirements, adding significant, often unforeseen, costs.

Practical Takeaway for Commercial Real Estate Professionals

The D.C. Circuit’s decision creates an era of heightened PFAS scrutiny under CERCLA. For commercial real estate owners and business professionals, proactive engagement is paramount. The innocent landowner defense and other defenses under CERCLA remain available, but the decision increases the importance of demonstrating that PFAS contamination could not reasonably have been discovered; something that has not been included within the scope of ASTM E-1527-21 Phase I Environmental Site Assessments. Consultants have in the past evaluated PFAS as a “non-scope consideration,” but now it needs to be added to the scope of each assessment.

We have already modified our bespoke AI agent, which we use to conduct and to review a Phase I environmental site assessment, to now take PFAS into consideration.

Additionally, it is now necessary to integrate PFAS specific evaluations into environmental due diligence processes, negotiate robust indemnities that look beyond the immediate transaction, and understand the full scope of potential CERCLA liabilities. Ignoring these evolving risks is no longer an option; prudent management demands strategic foresight and a thorough understanding of this expanding legal and financial exposure.

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Join us for the next in our webinar series at the Intersection of Business, Science, and Law, “Phase I Environmental Site Assessments “Just Changed,” on Tues, November 10 at 9 am. The webinar is complimentary, but you must register here.

No, the White House Didn’t Just Kill Maryland’s “Rain Tax” – What EO 14428 Actually Means

By Stuart Kaplow on October 4, 2026 Posted in Codes and Regulations, Environmental, Federal, State

On September 16, 2026, President Trump issued Executive Order 14428, revoking President Obama’s 2009 Chesapeake Bay Executive Order (EO 13508) and directly taking aim at what Mid-Atlantic lawmakers have long derided as the “rain tax.” However, before commercial real estate owners celebrate the death of local stormwater fees, they should take a hard look at the regulatory mechanics. The federal policy framework has shifted, but real estate owners should not expect their stormwater bills to disappear.

What Executive Order 14428 Actually Changed (and What Didn’t)

The core impact of Executive Order 14428 is clear: it removes the federal mandate that municipalities once cited as justification for imposing stormwater fees. This is a significant shift in federal policy and rhetoric. However, it is crucial to understand what the order did not do. It did not eliminate local stormwater fees. It did not dismantle stormwater utilities. And critically, it did not absolve states or municipalities of their legal obligations under the Clean Water Act.

This nuance is paramount. Many counties, like Baltimore County, Howard County, Montgomery County, and Prince George’s County, use this revenue to fund their CWA Municipal Separate Storm Sewer System (MS4) permit obligations. The White House stripped away the federal excuse for the fee, but the underlying statutory liability remains fully intact.

Maryland’s Enduring Stormwater Obligations of SB 863, TMDLs, and MS4 Permits

To truly understand the landscape, we must also look to Maryland state law. In 2015, Senate Bill 863, a compromise under the prior Governor Hogan, already eliminated the statewide mandate to charge a stormwater fee. However, SB 863 explicitly did not eliminate stormwater obligations. Under this state law, each jurisdiction must still:

Demonstrate adequate funding to meet Chesapeake Bay Total Maximum Daily Load (TMDL) and MS4 requirements.
Maintain a dedicated fund, financed either by a fee or other revenues (e.g., general fund, utility charges).

This means Maryland’s special purpose tax to fund stormwater management (c.f., this is not how we fund clean air?) was designed to ensure continued government stormwater management efforts, even without a federal or state level fee mandate. The Chesapeake Bay TMDL, established by the U.S. Environmental Protection Agency in 2010, remains a legally binding “pollution diet” that dictates specific reductions in nitrogen, phosphorus, and sediment. EO 14428 did not seek to rescind this foundational regulatory requirement.

Maryland Counties: A Varied Approach to Stormwater Funding

The practical outcome for businesses is a patchwork of local approaches.

Continuing Fees: Baltimore City, Baltimore County (“Stormwater Remediation Fee”), Howard County (“Watershed Protection Fee”), Montgomery County (“Water Quality Protection Charge”), Prince George’s County (“Clean Water Act Fee”), and Anne Arundel County all continue to operate stormwater utilities and charge fees.
Varied Structures: These fees are structured differently, ranging from tiered systems based on housing type or impervious area (e.g., Montgomery County with seven impervious area tiers) to flat residential fees.
Alternative Funding: Counties like Carroll County (no general fee) and Harford County (no separate fee) address their MS4/TMDL obligations through other revenue sources, demonstrating that while the funding mechanism changes, the financial commitment does not vanish. Frederick County, historically with a symbolic fee, now applies it to some non-municipal properties. Charles County utilizes a fee/utility structure, with details set locally.

These funding approaches address compliance costs, but none addresses the potential to capture stormwater for future use.

A Shift in Federal Strategy: Focusing on ‘Impactful Water Quality Improvements’

Of import, while the environmental industrial complex rushed to criticize the new executive order, the text describes only a refocusing of federal efforts. EO 14428 calls on federal agencies to direct resources to “more direct on the ground projects in areas of highest need that would result in the most impactful water quality improvements.”

This signals a federal preference for “getting more bang for the buck” in environmental restoration, potentially moving away from what was perceived as a widespread tax that burdened homeowners and small businesses without demonstrating clear efficacy. This shift could lead to a future where federal funds are deployed more strategically, potentially leading to more efficient, targeted infrastructure projects, including those that capture drinking water, rather than blanket regulatory requirements.

Beyond Fees: Where Does the Rainwater Go?

There is an underappreciated connection between stormwater policy and drinking water supply. Far more residents are concerned about Historic Low Levels at Reservoirs Reveal Flaws in Modern Maryland Stormwater Management. That recent blog post highlights the complex, interconnected nature of environmental regulations; something not appreciated in most modern stormwater regulatory schemes.

The future of stormwater management in the Chesapeake Bay watershed likely depends on recognizing a simple but profound reality (paraphrasing the CalEPA secretary): The rain we rush away during storms will be the same water we later wish we still had to drink.

Strategic Implications for Commercial Real Estate and Business Professionals

For commercial real estate owners and businesses in Maryland, the federal shift toward “impactful water quality improvements” may open avenues for more cost effective, performance based solutions that demonstrate tangible environmental benefits, potentially fostering innovation in stormwater infrastructure, including considering the capture potential of the rain.

What Should Maryland Businesses Do?

Do not assume the President’s executive order eliminates your stormwater bill. It does not.

The practical takeaway is simple: The White House order changes the federal policy direction, not local stormwater bills. Maryland businesses should use this moment to demand more than another government fee. They should seek a demonstrable connection between stormwater spending, quantities of potable water captured, and water quality results achieved.

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Maryland’s New Recycling Tax? Packaging EPR Moves From Law to Reality

By Stuart Kaplow on September 27, 2026 Posted in Codes and Regulations, recycling, State

Maryland’s latest environmental mandate is no longer just a legislative concept. It is becoming an operating program.

In 2025, Maryland enacted Senate Bill 901, establishing an Extended Producer Responsibility (EPR) framework for packaging and paper products. Governor Wes Moore signed the legislation on May 13, 2025.

Now the Maryland Department of the Environment is moving from legislation to implementation. The first regulations under COMAR 26.04.14 became effective May 25, 2026, establishing definitions, registration requirements, covered materials, reporting obligations, producer requirements and an implementation timetable.

For commercial real estate owners, however, the most important question is not whether recycling is a good idea. It is much more practical: Who is responsible and who ultimately pays?

What Is Extended Producer Responsibility?

EPR shifts some of the cost of managing products after their useful life from local governments and taxpayers to companies that put those products into the marketplace.

Maryland’s program covers packaging and paper products, with the stated objective of improving recycling, reuse and waste reduction. The theory is straightforward: if producers have to pay for end-of-life management, they have an economic incentive to use less material and design packaging that is easier to recycle.

That is the theory.

The practical question is whether those incentives actually produce better environmental outcomes, or simply move costs and create another layer of regulation and administration.

Maryland has designated Circular Action Alliance as the approved Producer Responsibility Organization. Producers can participate through CAA or, subject to MDE approval, establish an individual producer responsibility plan. The regulations impose registration and reporting requirements and provide enforcement mechanisms for noncompliance.

This Is Broader Than “Recycling”

The statutory and regulatory definitions matter.

Covered packaging can include primary, secondary and tertiary packaging intended for the consumer market, service packaging such as carryout bags and takeout food packaging, beverage containers and labels. Covered paper products can extend into residential, industrial, commercial and institutional sectors.

But there are significant exemptions and exclusions.

And this is where commercial real estate owners should pay attention.

A building owner is not automatically a “producer” simply because a building generates cardboard, paper or other recyclable material. The regulatory definition generally follows the manufacturer, brand owner, importer or first distributor responsible for putting covered materials into commerce. De minimis producers, those introducing less than one ton of covered material into Maryland or having global gross revenues below $2 million, are excluded.

A shopping center owner, apartment owner or office landlord therefore should not assume that EPR makes the property owner responsible for every package passing through the property.

But the real estate industry is not entirely outside the program.

Maryland’s definition of a “covered entity” includes multifamily residences and certain commercial, industrial and institutional buildings that source separate paper products for recycling. Covered services include collecting, transferring, transporting, sorting, processing and otherwise managing covered materials for recycling, reuse or composting.

In other words, the building can be part of the system even when the building owner is not the producer.

That distinction matters in leases, operating agreements, property management contracts and waste hauling arrangements.

The Rulebook Is Still Being Written

The May regulations are not the end of the story.

MDE describes them as establishing the framework for implementation, while additional rulemaking remains necessary. Issues still include definitions, covered materials, collection systems, fee structures and potentially “ecomodulation,” adjusting producer fees based on the environmental characteristics of particular materials.

That makes the Packaging and Paper Products Advisory Council worth watching.

MDE has scheduled Advisory Council meetings for September 10, October 8 and December 8, 2026. Stakeholders may have an opportunity to influence how the statutory mandate actually operates.

And seemingly technical definitions such as “Majority Component,” “Service Packaging” and the “Minimum Compostable or Recyclable List” can have very real economic consequences.

What Should Real Estate Owners Do?

For most commercial property owners, this is not a reason to create an EPR compliance department.

It is a reason to understand the allocation of responsibility.

First, identify the producer. For products and packaging associated with the property’s operations, the producer may be a manufacturer, brand owner, distributor or retailer, not the property owner.

Second, review waste and recycling contracts. Who pays for collection? Who owns recyclable materials? Who bears increases in hauling or processing costs? Does the contract provide enough flexibility to accommodate changes in Maryland’s recycling requirements?

Third, review leases. Retailers, restaurants, industrial tenants and multifamily residents can generate substantial volumes of covered packaging and paper products. Lease provisions addressing operating expenses, trash and recycling services should be reviewed before EPR begins generating material costs.

Fourth, watch the fees. The economic consequences of EPR will depend less on the label “producer responsibility” than on how fees are calculated and how those costs ultimately move through the supply chain.

That is the part of the program worth watching!

A Mandate With a Market Test

There is an arguable environmental justification for EPR. Municipalities have historically borne substantial waste management costs while manufacturers and consumers make many of the decisions determining how much packaging enters the waste stream.

There is also a legitimate economic concern: transferring costs does not eliminate them. It changes who pays them.

If EPR produces better packaging, more efficient recycling markets and less material entering landfills, Maryland may lead the way, demonstrating that regulation can change market behavior in productive ways.

But if the program produces layers of reporting, fees and administrative complexity without materially improving recovery rates, Maryland residents will reasonably question the increased dollar costs.

Maryland has made its policy choice. It is different than the past and different from nearly all places in the country, if not the world. It is not clear at all how this will work when most producers are out of the state of Maryland? The market will now test it.

For commercial real estate, the prudent approach is neither to ignore EPR nor to overreact to it.

Know where your property sits in the chain. Know who bears the increasing cost. Monitor and lobby the rulemaking.

The law has been passed. The more interesting part, the implementation, is just beginning.

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Exposomics – The New Environmental Risk That Will Change Real Estate

By Stuart Kaplow on September 20, 2026 Posted in Environmental

For decades, environmental risk focused on the visible and catastrophic: spills, smokestacks, contaminated properties, while doling out punishments after the damage was done.

Now a quieter and potentially far more consequential ‘ecological meets human health’ issue is moving to the center of scientific and commercial attention: exposomics.

Businesses should pay attention because exposomics changes the question. It is no longer simply whether a company discharged a regulated pollutant. Increasingly, the question is whether the cumulative environmental conditions surrounding employees, tenants, customers, and communities contribute to disease, and whether those exposures can be measured, reduced, and ultimately connected to economic and legal consequences.

What Is Exposomics?

The exposome is the totality of environmental influences an individual experiences over a lifetime, together with the body’s biological responses to them. Exposomics is the science of studying those exposures.

It encompasses chemicals and pollutants, diet, physical activity, infections, medications, socioeconomic conditions, and other environmental influences.

Think of it as the environmental counterpart to genomics.

That matters because genetics alone does not explain most human disease. A 2025 Oxford study of nearly half a million UK Biobank participants found that environmental factors explained about 17% of variation in mortality risk, compared with less than 2% attributable to genetic predisposition.

The business lesson is simple: where people live, work and spend their time matters.

Parkinson’s Is a Warning

Parkinson’s disease illustrates why exposomics deserves attention.

Researchers are investigating environmental contributions to Parkinson’s, including air pollution, pesticides, and solvents. The National Institute of Environmental Health Sciences identifies trichloroethylene, a solvent historically used for industrial degreasing, as a potential Parkinson’s risk factor. TCE is already recognized as a human carcinogen.

Studies have also associated exposure to pesticides such as paraquat with Parkinson’s risk.

This does not mean that any particular exposure inevitably causes disease. That distinction matters. Exposomics is not a license to declare that every chemical is dangerous. It seeks to determine which exposures, at what concentrations, for how long, and in combination with what other exposures, alter biological risk.

That is a much more sophisticated question.

The Building Becomes Part of the Equation

And that question has immediate implications for real estate.

A building is not merely an asset measured by rent, occupancy, and capitalization rate. It is also an exposure environment.

Indoor air quality, radon, particulate matter, volatile organic compounds, formaldehyde, cleaning chemicals, building materials, drinking water, and ventilation can all contribute to an occupant’s exposome.

The green building industry has already moved in this direction. LEED, for example, incorporates indoor air quality strategies, low emitting materials, air quality testing, and construction IAQ management.

The next step may be more demanding: verified drinking water quality, better ventilation and filtration, pollutant monitoring, radon testing and mitigation, low emitting materials, and healthier operating practices.

These are not simply amenities. In real estate they can become risk management tools and sources of competitive differentiation.

Radon Shows the Way

Radon is perhaps the clearest example of an environmental exposure real estate owners should already understand.

EPA estimates that radon causes approximately 21,000 lung cancer deaths in the United States each year. It is the second leading cause of lung cancer overall and the leading cause among nonsmokers.

A property owner does not need to wait for a new regulation to recognize the value of testing and, where necessary, mitigation.

The same principle may increasingly apply to other environmental exposures.

From the Building to the Breakfast Bowl

The exposomics conversation is also reaching the food aisle.

Artificial food colors provide an interesting example. Consumer demand for “clean label” products, scientific questions about the lifetime effects of food ingredients and political pressure, including HHS Secretary Robert F. Kennedy Jr.’s Make America Healthy Again initiative, are pushing manufacturers to reconsider ingredients that have been commonplace for decades.

General Mills has announced the removal of petroleum-based certified artificial colors from its U.S. cereal portfolio, including products such as Lucky Charms, Trix and Cheerios. WK Kellogg has said it will eliminate artificial colors from its U.S. cereal manufacturing portfolio by the end of 2026.

The point is not whether artificial colors are dangerous. The larger point is how markets respond when science, consumer preferences and public policy converge around questions of cumulative exposure.

That same dynamic can affect real estate.

Exposomics Will Change Environmental Liability

The legal significance may ultimately be greater than the science itself.

Environmental litigation has historically confronted an evidentiary problem: identify the contaminant, prove exposure, and establish causation between that exposure and an individual’s disease.

Exposomics may narrow that evidentiary gap.

Sensors, biomonitoring, analytical chemistry and data science are making it increasingly possible to measure exposures and biological responses in real time and through blood, urine, hair, tissue, and other samples. The science is already here and AI is making it affordable to search large data sets.

Today’s uncertain association is fast becoming tomorrow’s quantifiable risk.

For businesses, the question therefore should not be limited to:

“Is this required by law?”

It should also be:

“What will the science say about this exposure ten (.. okay, two) years from now?”

That question has implications for due diligence, acquisitions, building design, employee health, product selection, insurance, disclosure and litigation.

The Business Takeaway

Exposomics is not about panic. It is whether it is quantifiable.

Businesses should identify and reduce unnecessary environmental exposures in their workplaces, buildings, products and operations. That means taking indoor air and water quality seriously, testing for radon where appropriate, selecting low emitting materials, improving ventilation and filtration, evaluating chemical use and documenting environmental health decisions.

Green buildings, whether certified under LEED, Green Globes or another standard, can be a good part of that strategy.

The environmental issue of the future may not be the spectacular spill that makes the evening news. It may be the invisible exposure that occurs every day, for years, inside a building, or in a bowl of breakfast cereal. And whether you see this as a health and wellness movement, a MAHA political movement, or a social media aesthetic, exposomics is here and now. And AI is putting it in the hands of everyone.

Exposomics matters because it is turning environmental health from a generalized concern into something increasingly individual, quantifiable, and actionable.

And what can be measured can become a market differentiator, a business risk, and potentially a legal liability.

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Join us for the next in our webinar series at the Intersection of Business, Science, and Law, “Exposomics – The New Environmental Challenge And Opportunity You Have Not Heard About,” on Tues, October 13 at 9 am. The webinar is complimentary, but you must register here.

No Constitutional Right to Clean Drinking Water? Fifth Circuit Says Not So Fast

By Stuart Kaplow on September 13, 2026 Posted in Climate Change, Codes and Regulations, Environmental

Can a government be held constitutionally accountable when it supplies contaminated drinking water, and then tells residents the water is safe?

According to the U.S. Court of Appeals for the Fifth Circuit, the answer is not under the U.S. Constitution’s Due Process Clause.

In a significant September 4, 2026, en banc decision, the Fifth Circuit affirmed dismissal of a lawsuit brought by Jackson, Mississippi, residents who alleged that city officials allowed lead to contaminate the municipal drinking water system and then misled residents about the danger. The court held that the Constitution does not recognize either a right to be free from government caused exposure to contaminated drinking water or a constitutional right to truthful information from public officials about contamination.

The decision, Sterling v. City of Jackson, No. 24-60370, was authored by Judge Kurt Engelhardt and joined by Chief Judge Elrod and eight other judges. Two judges were recused.

A Water Crisis Becomes a Constitutional Case

The facts underlying the case are extraordinary. Jackson’s water system had produced water containing lead, E. coli and other bacteria, experienced extended outages and generated numerous boil-water notices. The plaintiffs alleged that city officials knew the treatment system could not adequately prevent corrosion of water pipes, yet failed to correct the problem. They further alleged that officials told residents their water was safe despite knowing that it likely was not.

The plaintiffs sued under 42 U.S.C. § 1983, asserting substantive Due Process violations, including rights involving bodily integrity and state-created danger.

The Fifth Circuit’s en banc majority, however, framed the claims more narrowly: whether the Fourteenth Amendment protects a right not to be exposed to contaminated water caused by government action and a right to truthful information from public officials about contaminants in municipal drinking water.

The answer was no.

History and Tradition Control

This decision reflects the Supreme Court’s increasingly restrictive approach to substantive Due Process. The Fifth Circuit emphasized Dobbs v. Jackson Women’s Health Organization and earlier Supreme Court precedent requiring courts to exercise “utmost care” before recognizing new substantive constitutional rights.

The court concluded that neither asserted right is sufficiently “deeply rooted” in American history and tradition.

The first community waterworks system in the United States was built in Bethlehem, Pennsylvania, in 1754. After a cholera outbreak in 1832, New York City began construction of the Croton Aqueduct, which began supplying potable water to the public in 1842.

The majority also rejected the argument that contaminated water necessarily implicates the established constitutional right to bodily integrity. That right protects against direct governmental intrusions such as forced medical procedures, forced stomach pumping, and certain physical assaults. But the court reasoned that municipal mismanagement that results in lead exposure is fundamentally different.

The court was similarly unwilling to transform misleading government statements into a constitutional right to accurate information. Public officials, the court acknowledged, are expected to be truthful, particularly when public safety is involved. But the court concluded that being desirable does not make truthful government information a constitutional entitlement.

The court put the point bluntly: “The Constitution does not provide redress for every governmental wrongdoing.”

That sentence may ultimately be the most important takeaway from the decision.

What the Decision Does – and Does Not – Mean

The ruling does not mean that contaminated municipal drinking water is lawful.

Nor does it eliminate the Safe Drinking Water Act, EPA enforcement, state drinking water requirements, tort claims, or other statutory and common law remedies.

Significantly, government officials faced extensive criminal charges for a compromised water supply in Flint, Michigan, in 2014. Prosecutors charged nine former high ranking state and city officials, including former Governor Rick Snyder, with a total of 42 counts ranging from willful neglect of duty to involuntary manslaughter. No government officials were ultimately convicted.

Indeed, Jackson’s water problems have generated substantial federal intervention. EPA and the Department of Justice have been working for years to bring the city’s water system into compliance with federal requirements. EPA reports that repairs have improved reliability, corrosion-control treatment has been completed at one treatment plant, and additional work remains underway.

The EPA’s own Inspector General, moreover, concluded in 2024 that deficiencies in Mississippi’s enforcement program and inadequate EPA oversight contributed to the Jackson drinking water crisis.

And in 2026, EPA announced another $27.4 million for Mississippi to address lead in drinking water, including identifying and replacing lead service lines.

In other words, the absence of a constitutional right does not mean the absence of environmental law.

A Warning for Businesses and Government

For real estate owners, developers, operators, and other businesses, Sterling is a reminder not to confuse constitutional liability with environmental liability.

A water quality problem may fail as a § 1983 constitutional claim while simultaneously creating substantial exposure under federal or state environmental statutes, drinking water regulations, negligence law, contract provisions, insurance policies or other legal theories.

The distinction matters.

The Fifth Circuit majority expressly pointed plaintiffs toward tort claims, criminal charges, legislation and regulatory enforcement. It also emphasized that federal and state authorities already have mechanisms for addressing Jackson’s water problems.

There is also an important dissent. Judge Higginson argued that the plaintiffs had plausibly alleged both bodily integrity and state created danger theories and should at least have been allowed discovery. He emphasized that the alleged facts, if proven, describe government conduct that affirmatively created or increased the danger to residents.

That disagreement may not be the last word. The Fifth Circuit’s decision creates an important circuit split with decisions from other circuits that have recognized, or been more receptive to, constitutional claims involving government created environmental dangers and contaminated water.

Moreover, government officials across the country are telling residents the water is safe. Really?

For now, however, in the Fifth Circuit, the message is clear:

A government may have an environmental, statutory, tort or political obligation to provide safe drinking water without the Constitution itself creating a private right to it. And a second takeaway from the decision may be that we will likely see more state and local government officials facing criminal charges in environmental matters ranging from willful neglect to involuntary manslaughter.

The distinction of having a legal obligation even when a constitutional protection does not exist is something that businesses, and the public agencies with which they interact, should understand.

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The Air We Share – Why Indoor Air Is Becoming a Real Estate Risk

By Stuart Kaplow on September 6, 2026 Posted in Codes and Regulations, Environmental, GHG

The Air We Breathe – Indoor Air Quality Is Becoming a Real Estate Issue

The most dangerous environmental threat is the one we breathe every day. Air pollution is the world’s largest environmental health risk, responsible for roughly 7 million premature deaths each year, according to the World Health Organization.

For real estate owners, however, the more surprising issue may be what happens inside the building.

A now widely quoted WHO assessment released this summer found that indoor “household air pollution was responsible for an estimated 2.9 million deaths per year ..” This is not only a low income country risk for public health and the environment.

This broader lesson applies to U.S. real estate, where people spend their time matters.

We Spend 90% of Our Time Indoors

The U.S. Environmental Protection Agency estimates that Americans spend approximately 90% of their time indoors, where concentrations of pollutants can be 2 to 5 times higher than ambient (outdoor) air. EPA identifies indoor air quality as an environmental risk factor that can affect respiratory conditions, cardiovascular disease, carcinogens, cognitive and mental function, as well as mortality.

Indoor pollutants can come from surprisingly many sources: radon, particulate matter, mold and other biological contaminants, VOCs from paints and furnishings, cleaning products, pesticides, combustion, cannabis smoke, building materials, and outdoor pollution that enters the building.

Radon deserves particular attention. We recently blogged that EPA estimates that radon causes approximately 21,000 lung cancer deaths each year in the United States and is the country’s second leading cause of lung cancer, and the leading cause among nonsmokers.

OSHA likewise identifies poor ventilation, humidity, remodeling and other building conditions as factors affecting indoor air quality, with poor IAQ associated with headaches, fatigue, difficulty concentrating and respiratory irritation. Some indoor exposures, including radon and asbestos, can produce serious disease years later.

For a property owner, this changes the question from “Does my building meet the code?” to “What is the building actually doing to the people inside it?”

The Energy Efficiency Paradox

There is an important tension between energy efficiency and indoor air quality.

Modern buildings are increasingly designed to reduce uncontrolled air infiltration. Tighter envelopes can reduce heating and cooling loads and improve energy performance. But reducing air exchange can create indoor air quality problems.

EPA itself recognizes that tighter building shells and reduced ventilation rates undertaken to save energy can contribute to IAQ problems.

The problem might be better phrased as energy efficiency without adequate ventilation, filtration, source control, and commissioning.

And simply opening a window is not a building management strategy (.. although it works). There is an argument that properly designed mechanical ventilation can provide better IAQ than uncontrolled natural ventilation because open windows can introduce outdoor contaminants, moisture, and other problems.

COVID Changed the Conversation

COVID-19 demonstrated something that building engineers had understood for years: ventilation and air cleaning are public health controls.

ASHRAE Standard 241, Control of Infectious Aerosols, now establishes a framework for reducing infectious-aerosol transmission through a combination of outdoor air ventilation, filtration, and air cleaning. It introduces an “equivalent clean airflow” concept, allowing building owners to achieve the desired level of clean air through different combinations of technologies.

That is significant for owners because it moves the discussion beyond simply asking how much outdoor air enters the building. The better question is how much clean air occupants actually receive.

Leases and Litigation

In 2026, it’s increasingly common for sophisticated landlords and tenants to set minimum indoor air quality standards, often tied to objective, measurable, and recognized benchmarks (e.g., ASHRAE or LEED) to avoid disputes and ensure enforceability.

And yes, there is increasing litigation in this space, not only in leasing, but also from occupants as the field of Exposomics becomes better understood and more people are concerned about life time exposures.

LEED v5 Is Moving From Design Intent to Measured Performance

The green building industry is responding.

LEED v5 places substantially greater emphasis on measured indoor air performance. Its new approaches include continuous monitoring and targeted air quality testing. Depending upon the rating system and pathway, monitored parameters can include carbon dioxide, PM2.5, total volatile organic compounds, temperature, and relative humidity.

For existing buildings, LEED v5’s Indoor Air Quality Performance credit can award up to 10 points for continuous indoor air monitoring.

LEED v5 also strengthens attention to filtration. Its operations and maintenance requirements call for identification of filtration levels and evaluation of improvements where filtration is below MERV 13 or an equivalent efficiency.

This represents an important philosophical shift: IAQ is becoming a performance metric rather than merely a design feature.

What Does This Mean for Real Estate Owners?

Owners should increasingly treat IAQ as part of asset management. That means considering:

actual outdoor air delivery, rather than merely design specifications;
filtration installation and efficiency;
moisture and mildew prevention;
radon testing, particularly in applicable geographic areas;
low emitting materials for cleaning and during renovation;
protection of occupied spaces during construction;
emergency strategies for wildfire smoke and infectious disease events; and
documenting the building’s IAQ performance.

There is also a legal and transactional dimension. Poor IAQ can create potential liability problems, and building owners increasingly should expect tenants, lenders, investors and occupants to ask questions about the health and performance of the buildings they occupy or acquire.

What About the Future?

There are no Federal environmental IAQ laws to speak of (c.f., there are OSHA requirements and other related mandates). Maryland, like many states, has some very limited IAQ regulatory requirements. For example, Maryland public school regulations require HVAC systems in specified classrooms to continuously move air and maintain carbon dioxide levels of no more than 1,200 ppm.

But Maryland does not have a single, comprehensive IAQ performance regime applicable across commercial, residential and public buildings. Requirements remain fragmented among building codes, particular building types and particular hazards. And the state is hyper focused on global warming and reducing energy use at nearly any cost.

That will change as the science, technology and expectations of building occupants evolve. Exposomics is fast evolving and more people are concerned about life time exposures.

The lesson for owners is straightforward: a building can be energy efficient, but it must have healthy air.

The next generation of high performance real estate will need to accomplish both objectives: use less energy while providing cleaner air.

There must be a better solution to indoor air quality than the ancient Sanskrit proverb, “For breath is life, so if you breathe well you will live long on earth.”

For modern real estate, the solution is not simply to open a window.

It is to design, operate, and maintain buildings so that the people inside them can breathe well.

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GPS Is Changing – Why Real Estate Owners and Developers Should Care

By Stuart Kaplow on August 30, 2026 Posted in Codes and Regulations, Federal

Long before satellites orbited the Earth, humans relied on the stars and the sun to find their way. Today, GPS does far more than help us find an address. It underlies surveying, mapping, construction, agriculture, utilities, engineering, and countless commercial real estate applications.

That is why a major change to America’s geospatial infrastructure deserves the attention of real estate professionals.

The National Oceanic and Atmospheric Administration’s National Geodetic Survey is modernizing the National Spatial Reference System, the federal framework underlying the coordinates and elevations used throughout the United States. Existing coordinates in North America can shift 1 – 4 meters horizontally and up to about 1 meter vertically because older datums are offset from the Earth’s center and have a tilted vertical bias.

For commercial real estate purchasers, developers, owners and operators, that shift of up to the equivalent of 13 feet, is not merely a technical issue for surveyors. It can affect land surveys, site plans, floodplain determinations, easements, utility locations, GIS databases, development approvals and construction control.

The 2026 Modernization

The current GPS system relies principally upon NAD 83 for horizontal positioning and NAVD 88 for elevations. NGS is replacing them with four new terrestrial reference frames, including NATRF2022 for the North American plate, and a new gravity based vertical datum, NAPGD2022. NGS is also developing SPCS2022 to replace the existing State Plane Coordinate Systems.

The reason is technological. NAD 83 and NAVD 88 were developed using surveying methods and reference networks that predate today’s highly precise satellite positioning and gravity measurements. NGS describes NAD 83 as being approximately 2.2 meters non-geocentric, while NAVD 88 has a significant vertical bias and tilt relative to modern geoid models.

The modernized NSRS will rely much more heavily on GNSS observations, continuously operating reference stations, Earth’s center of mass and gravity measurements. It also incorporates tectonic plate motion and time-dependent positioning.

The Land Is Not Moving. The Reference System Is.

This distinction is critical.

A property does not move because NGS changes its datum. But the coordinates used to describe where that property is located can change when converted from one reference framework to another.

For commercial real estate, even a difference measured in meters can matter.

Consider a property acquired using an ALTA/NSPS Land Title Survey. The survey may identify a building, parking lot, access easement, utility corridor or other feature using coordinates tied to a particular datum and coordinate system.

Years later, a developer commissions a new survey using the modernized NSRS.

If the two datasets are not properly transformed, the coordinates may not align—even though the building, parking lot and easement have not moved.

That creates potential problems when combining:

Existing ALTA/NSPS surveys with new surveys;
Boundary and easement information with GIS databases;
Utility locations with civil engineering plans;
Floodplain maps with site elevations;
Existing improvements with redevelopment plans;
Environmental sampling locations with historical reports;
Recorded survey exhibits with new boundary surveys; and
Government mapping with private development plans.

NGS anticipates that transforming legacy data will be an important part of the transition.

The Deed and Easement Problem

The issue becomes particularly important when coordinates find their way into legal descriptions or exhibits.

Most deeds do not convey property simply by latitude and longitude. They generally rely upon metes and bounds, monuments, courses and distances, plats and other traditional descriptions.

But commercial real estate increasingly depends upon digital information: GIS databases, survey coordinates, engineering files, aerial imagery, utility mapping and construction models.

That creates a potential disconnect between the legal description of the property and its digital description.

For example, an easement depicted using coordinates could appear to occupy a different location if a legacy NAD 83 dataset is improperly overlaid on a dataset using NATRF2022.

This does not mean that millions of deeds will become invalid when the NSRS is modernized. It means that real estate professionals should stop assuming that a coordinate is meaningful without knowing the reference system in which it was created.

Due Diligence Needs a New Question

Commercial real estate buyers should begin asking their surveyors, engineers and other consultants:

What datum, realization, coordinate reference system and epoch underlie this survey or dataset?

For significant acquisitions and development projects, purchasers should consider identifying existing:

ALTA/NSPS land surveys;
Boundary and topographic surveys;
Civil engineering plans;
Floodplain and stormwater information;
Utility mapping;
Environmental sampling locations;
Easement exhibits;
GIS databases; and
Construction control information.

The objective is not necessarily to resurvey everything. Legacy information may be transformed into the modernized system. But the transformation must be understood and documented.

What Should Real Estate Businesses Do Now?

There is a particularly good reason to begin planning now.

NGS currently says that the existing NSRS remains the official system while the modernization is being tested and implemented. At the same time, NGS has established January 13, 2027 as the deadline for submitting geodetic survey projects intended to create or update geodetic control in the current NSRS.

For commercial real estate, the prudent response is not panic. It is document control.

Purchase agreements, development agreements, survey specifications, easements, deeds, construction documents and GIS protocols should identify the applicable datum and coordinate reference system whenever coordinates or elevations matter. But be aware that with respect to purchase agreements, Maryland and several other jurisdictions have recently banned the sale of precise GPS and geolocation data in the name of consumer privacy. This Maryland Online Data Privacy Act of 2024 conflicts with the goal of more accurately describing location and boundaries.

Surveyors and engineers should be asked to identify the reference system used for both new work and legacy data. Developers should make sure that multiple consultants working on the same project are working from compatible spatial references.

A Coordinate Without Its Datum Is Incomplete Information

The NSRS modernization is a major improvement in the accuracy and usefulness of America’s geospatial infrastructure. But the transition will require commercial real estate owners and developers to manage two generations of spatial information.

The companies that identify their legacy surveys, GIS data, easement exhibits, and elevation information now will be better positioned to avoid surprises later.

Because the last place a real estate owner should discover that two datasets do not align is at closing, during construction or in litigation.

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Join us for the next in our webinar series at the Intersection of Business, Science, and Law, “Exposomics – The New Environmental Challenge And Opportunity You Have Not Heard About,” on Tues, October 13 15 at 9 am. The webinar is complimentary, but you must register here.