Green Building Law Update

Environmental Law and Sustainability for Business

2018 IgCC is Not in Use Anywhere. A Detailed Analysis of Why?

By Stuart Kaplow on Posted in Green Globes, IgCC, LEED, Local Government

The 2018 International Green Construction Code was released on November 8, 2018 but more than a year later, it has not been adopted anywhere.

The 203 page document available from the ICC for sale to the public, .. click here for a free read only copy of the 2018 IgCC, is an entirely new standard and bears little, if any relationship to earlier IgCC versions.

Which at first blush might appear to not necessarily a bad thing, given that the IgCC, first published in 2009, has only been adopted, in whole, but mostly in part, in maybe 17 jurisdictions, out of the more than 4,400 code adopting jurisdictions across the U.S., so there was room for wider adoption of a 2018 IgCC.

For purposes of this blog post highlighting the significant changes in the 2018 IgCC, that new code will be contrasted with the 2012 IgCC and not the 2015 version, which last version we are only aware a single jurisdiction has adopted.

Which is all surprising to many because the prior versions of the IgCC were ideally suited to be edited and revised for use as a voluntary compliance code promoting sustainability and energy efficiency, for specifications in contract documents, for college and professional school textbooks and curricula, and the like; but, were admittedly not ideal for use in a regulatory setting for the compulsory certification of green buildings and construction related materials, which is all but beyond dispute given that only 17 places have adopted the prior versions IgCC.

Many code officials have concluded the 2018 IgCC is not a good building code, green or otherwise. The drafting process was widely criticized resulting in a document that has never been enacted anywhere, and likely should not ever be adopted as code. It has been widely characterized as an unbuildable code.

The previous versions of the IgCC were developed utilizing ICC’s respected Code Development Process as part of the ICC Family of Codes. But arising from a 2014 confidential agreement signed by the U.S. Green Building Council, International Code Council, ASHRAE and the Illuminating Engineering Society “to collaborate on the development of future versions of Standard 189.1, the IgCC and the LEED green building program,” the ICC was only responsible for Chapter 1, Scope and Administration of the 2018 IgCC (.. be aware the American Institute of Architects dropped out of the secret society was not a party to the final code release?). The remainder of the code is the substantive content that is the 2017 edition of ANSI/ASHRAE/ICC/USGBC Standard 189.1 for the Design of High Performance Green Buildings Except Low-Rise Residential Buildings. Note, the 2017 edition of Standard 189.1 incorporated 75 separate addenda to the 2014 edition (so it is also in large part new). The ASHRAE process for approving standards may well work for standards, but the insular groups of subject matter environmental zealots that created the 2017 189.1 did not create a code that has garnered any market acceptance.

But draw your own conclusions: This 2018 IgCC contains requirements that address site sustainability, water use efficiency, energy efficiency, indoor environmental quality, materials and resources, and construction and plans for operation.

The 2018 IgCC applies to “1. New buildings and their systems. 2. New portions of buildings and their systems.” and significantly “3. New systems and equipment in existing buildings.” Sec 101.3.1.

The scope of the code then does not apply to single family dwellings or multifamily dwellings of three stories or fewer. The provisions in Appendix J for residential and multifamily construction apply only when expressly adopted, providing for an option for incorporating residential building using the ICC 700 National Green Building Standard.  Continue Reading

Greenbuild was Proof Positive that LEED is Thriving

By Stuart Kaplow on Posted in Green Building, LEED

The just completed 2019 Greenbuild International Conference and Expo in Atlanta is absolute proof that the LEED green building rating system, with more than 100,000 projects registered and certified, is thriving.

The theme of this year’s Greenbuild was “A New Living Standard,” that everyone, regardless of background or circumstance, deserves a safe and healthy place to call home.

And much of the underlying messaging was about how to talk about green building to those outside of the green tent, shifting from a narrative focused on statistics to a foundation in storytelling. This is a huge positive including not using ‘less inclusive words’ like “global warming” that are politically divisive, in favor of ‘words that work’ like “climate related risks” that describe real world conditions.

As it is each year, the very best thing about this 18th Greenbuild is the people.

The thousands of like minded people gathering in one place is more than just an opportunity to see old friends, it is one huge coterie of green building thought leaders. And that cerebral synchronicity leads to the single best marketing opportunity each year across the green building industrial complex.

Greenbuild is “the” target rich environment for green people. The photo above is some of those green people, friends from Lorax Partnerships, one of the very best green building consulting firms.

The print media, including the New York Times, wrote about the progressive keynote by President Barack Obama, where he described the most compelling issues of the day as “climate change” and “global economic inequality,” however, many viewed giving the stage to a political leader, an alienating figure, had the effect of unnecessarily creating tribes, flying in the face of USGBC’s new stated messaging about avoiding the less inclusive?

However the most talked about topic by those in attendance may have been before the conference formally began, the summit on Tuesday about the RELi rating system addressing resilience (.. yes, one of the words that work) at the building scale.

There are hundreds of education sessions, but the Expo floor is always the most dynamic place at the convention and among the most enlightened of the vendors and trade groups was the National Asphalt Paving Association booth not only providing a practical guide on how asphalt pavements can help owners earn LEED credits, but also information on successes the industry is having with urban heat island effect.

The Green Codes Breakfast was a terrific fast paced 30,000 feet view of the statutes, regulations and codes that have driven the success of LEED through mandates and incentives. I will pen a blog post about the failings of 2018 IgCC and green codes next week.

There was a lot announced for Arc including the free to use “Arc For All” data base.

While there was no announcement, the worst kept secret at Greenbuild is that USGBC is that the work on LEED v 5 (.. in lieu of v 4.2) will soon commence in earnest. Diametrically opposed views of the environment have shaped different visions for the future of LEED. With v 4 and v 4.1, USGBC moved toward a belief that we are using more than our planet has to give and we must drastically cut back and use less energy, water, and …, but some are concerned that there are vestiges of that neo-Luddite view in the new announced LEED Positive, USGBC’s vision statement for regenerative building. That opposition to new technology overtook the longstanding precept by the founders of USGBC that LEED was a science based engineered solution to the environmental problems of the day. A new version not later than 2021, not an update of what exists today, correcting that imbalance, is essential not only for the domestic market acceptance of LEED, but also for mankind to fare well on our increasingly crowded Earth.

To those who find fault with Greenbuild, including that it is not the huge convention it was in years past, and I have been attending USGBC green building conventions since 1994 (.., yes, pre Greenbuild), I suggest the Churchill quote, “democracy is the worst form of government, except for all the others” is analogous.

If you want timely updates on the most widely used green building program in the world or if you want to market among the once a year business opportunity with a green building industry that is LEED certifying 2.6 million square feet daily, attend Greenbuild in 2020. There will be a Greenbuild in Bengaluru, India, one in Dublin, another in Mexico City; and, I will see you at Greenbuild in San Diego on November 3 – 6, 2020.

PFOA Contamination is Found in 49 States

By Stuart Kaplow on Posted in Environmental, Legal

Two weeks ago, New York Attorney General Letitia James commenced a civil suit against the nation’s largest chemical manufacturers and several firefighting foam makers for what the complaint alleges is contamination of water supplies across the state with PFOAs, averring strict liability for public nuisance, strict products liability for defective products, strict products liability for failure to warn, and seeking restitution.

That lawsuit is in addition to the hundreds of PFOA suits pending across the country, including three class actions certified last month. And many more people are expected to seek judicial redress in the coming years.

Adverse health impacts from PFOA are being policed by the marketplace and enforced by the rule of law through these common law state tort liability suits.

Per and polyfluoroalkyl substances are a group of more than 4,000 man-made chemicals that includes PFOA, PFOS, GenX, and many other chemicals. PFOAs have been manufactured and used in a variety of industries around the globe, including in the United States since the 1940s and have been the most extensively produced and studied of these chemicals. PFOAs are very persistent in the environment and in the human body, meaning they don’t break down, accumulating over time, and as such have been referred to ‘forever chemicals’ making them an emergent environmental priority.

The EPA reports, “there is evidence that exposure to PFAS can lead to adverse health outcomes .. studies indicate that PFOA can cause reproductive and developmental, liver and kidney, and immunological effects in laboratory animals, .. and have caused tumors in animal studies.”

A peer reviewed study cited approvingly by the EPA describes 99.7% of Americans have a detectable PFOA in their blood!

Significantly, concentrations of PFOA in the U.S. population’s blood have declined since 1999 by 25%, from an average of about 4 parts per billion, in large measure in response to litigation, including a widely publicized 2000 court ruling that forced the major U.S. producer to for the first time share all documentation related to PFOA. Manufactures began exiting the marketplace and with EPA’s 2010 PFOA Stewardship Program where eight participating companies agreed to gradually phase out the manufacturing of the chemicals by 2015, new production of PFOA in the U.S. has been cut dramatically.

But make no mistake that while new production has been greatly reduced, PFOA products exist widely from fire fighting foam on boats, including U.S. Navy vessels to stain and water repellent fabrics as well as a variety of construction materials. Troubling to some is that green building programs, including LEED’s Materials & Resources credits do not track or even take into account PFOA.

Some suggest the U.S. government is complicit in the wrongdoing, including when the principal sources of PFOA pollution in groundwater are military bases and civilian airports where the federal government specified fire fighting foam containing PFOA. But possibly the larger issue is that the federal government and the states failed to regulate this space, at all, including never determining PFOA to be a hazardous substance, when regulation could have provided protections for the public and the environment while providing predictability to the manufacturers.

But this is not a U.S. problem alone. Populations in nearly all industrialized nations have a PFOA blood level of at least 2 parts per billion and PFOAs are still being produced in many countries.

In the U.S. there are no federal drinking water nor other regulatory standards for PFOA; although there are more than two dozen bills pending in Congress that portent to regulate this space. Earlier this year the EPA issued “Draft Interim Recommendations” to address groundwater contaminated with PFOA, including articulating EPA’s lifetime health advisory standard for PFOA of 70 parts per trillion.

Activated carbon and reverse osmosis are both used to treat PFOA in drinking water (.. and you should filter your drinking water), but arguably neither remove the harmful chemicals, rather relocating or diluting the PFOA; hence the term forever chemicals. But last week, the U.S. Air Force together with partners Clarkson University and GSI Environmental conducted a test using an “enhanced contact plasma reactor, a closed system utilizing water, electricity and argon gas to degrade PFOS and PFOA in minutes.” This technology may in the future make treatability and actually removing PFOA from the environment realistic.

If we are going to be good ancestors, our lofty responsibility to humanity as observed by Jonas Salk, it is critical that there be more and better science about PFOAs including methodologies to minimize adverse health effects, as these forever chemicals accumulate in human beings across the planet.

Today, adverse health impacts from PFOAs can most efficiently be recognized by the marketplace and enforced by tort law in state courts, redistributing resources from those who engage in risky business activities manufactured dangerous products to those who are damaged; in lieu of some new, after the fact, one size fits all top-down government regulation in this class of chemistry, like the flawed EU measures to ban more than 4,000 chemicals in the PFOA class beginning July 4, 2020.

Adverse health impacts from PFOA should be policed by the marketplace and enforced by existing tort law.

What You Can Say about RECs is Regulated by the FTC

By Stuart Kaplow on Posted in Energy, Federal, Solar Panel

Businesses who generate renewable energy, say, by using solar panels, but sell the Renewable Energy Credits (RECs) for the renewable energy they generate shouldn’t claim they “use” renewable energy. The Federal Trade Commissions has advised that such a claim would be deceptive.

The guidance from the FTC is not new, but as renewable energy becomes more prevalent, increasingly businesses are making claims about their green energy. This guidance from the FTC may seem counterintuitive, but it is consistent with the longstanding position of the federal agency.

The Federal Trade Commission issued revised “Green Guides”, 16 CFR Part 260, in 2012 that are intended to help ensure that claims made by businesses about the environmental attributes are truthful and non-deceptive under Section 5 of the FTC Act, 15 U.S.C. 45.1. The Guides are administrative interpretations of the law. Therefore, they do not have the force and effect of law and are not independently enforceable. The FTC, however, can and has taken action under the Act if a business makes an environmental claim inconsistent with the Guides

Among the relevant language in the Green Guides is, §260.15 Renewable energy claims,

(d) If a marketer generates renewable electricity but sells renewable energy certificates for all of that electricity, it would be deceptive for the marketer to represent, directly or by implication, that it uses renewable energy.

That express language is clear. But if there was any doubt as to what is intended that uncertainty is assuaged by the following explanatory example provided in the Green Guides,

Example: A toy manufacturer places solar panels on the roof of its plant to generate power and advertises that its plant is “100% solar-powered.” The manufacturer, however, sells renewable energy certificates based on the renewable attributes of all the power it generates. Even if the manufacturer uses the electricity generated by the solar panels, it has, by selling renewable energy certificates, transferred the right to characterize that electricity as renewable. The manufacturer’s claim is therefore deceptive. It also would be deceptive for this manufacturer to advertise that it “hosts” a renewable power facility because reasonable consumers likely interpret this claim to mean that the manufacturer uses renewable energy. It would not be deceptive, however, for the manufacturer to advertise, “We generate renewable energy, but sell all of it to others.”

Despite that being the law, the environmental industrial complex regularly articulates that buying RECs can create market demand for clean energy sources. In describing LEED credit NC-v4 EAc7: Green power and carbon offsets, a U.S. Green Building Council associated vendor claims, “the benefits of renewable energy are well understood by the general public, and so pursuing this credit can help you advertise your commitment to environmental responsibility.” That statement is problematic and the related advertisement requires caution to not run afoul of the FTC.

This is not simply an instance of Detective Pikachu being “in” while True Detective is “out” but is about the FTC and state attorneys general policing environmental claims sua sponte. Moreover, there have been claims by tenants against landlords arising from green power that would not pass FTC muster.

There is concern that the Green Guides not only go too far but have not kept pace with the marketplace and need to be corrected and updated where today some of the guidance results in the federal government inhibiting truthful marketing in the misguided name of the FTC being a policeman wielding prior restraint in the name of truth in advertising.

As renewable energy, including onsite solar installations, become more common so too will questions about what can be claimed about that green power and those installations.

An HREC is Not a REC in a Phase I Environmental Site Assessment

By Stuart Kaplow on Posted in Environmental, Federal

I review a large number of Phase I environmental site assessments, and year in, year out, the largest number of questions I field are about Historical Recognized Environmental Conditions.

The environmental professionals who perform those assessment generally do not take heed of Eduardo Galeano’s quote, “History never really says goodbye. History says, ‘see you later.’”

By way of background, a Phase I environmental site assessment is the process of evaluating a property’s environmental conditions and assessing potential liability for contamination. And one might assume that since the EPA issued rule, for what constitutes all appropriate inquiries, provides that ASTM International Standard E1527-13 Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process is consistent with the requirements of the EPA rule and can be used to satisfy the statutory requirements, there would be few, if any, questions, .. just follow ASTM E1527-13!?

However, both because of the very large number of Phase I environmental site assessments conducted each year and the huge dollar implication of the associated real estate transactions when prospective purchasers are seeking protection from potential liability under the Comprehensive Environmental Response, Compensation, and Liability Act (the Superfund law) as an innocent landowner, a contiguous property owner, or a bona fide prospective purchaser, there are questions. And the most frequently asked questions I field are about Historical Recognized Environmental Conditions.

ASTM E1527 – 13 describes an Historical Recognized Environmental Condition as ..

a past release of any hazardous substances or petroleum products that has occurred in connection with the property and has been addressed to the satisfaction of the applicable regulatory authority or meeting unrestricted use criteria established by a regulatory authority, without subjecting the property to any required controls.”

Some context is likely useful. A Recognized Environmental Condition (a REC) is “the presence or likely presence of any hazardous substances or petroleum products in, on, or at a property: (1) due to any release to the environment; (2) under conditions indicative of a release to the environment; or (3) under conditions that pose a material threat of a future release to the environment.”

And an Historical Recognized Environmental Condition is distinct from the Controlled Recognized Environmental Condition (a CREC) which applies to an environmental condition on a site that has received regulatory closure but are still subject to controls. A CREC is a subset of a REC.

Significantly, an Historical Recognized Environmental Condition is not a REC. To be clear an Historical Recognized Environmental Condition is not a recognized environmental condition for the purposes of a Phase I environmental site assessment.

It is almost that simple. For a past REC to be determined an Historical Recognized Environmental Condition, the release or other condition must have been previously cleaned up or now meet current regulatory standards without clean up.

Additionally, in the event of prior regulatory intervention related to the condition, that the final action not require use restrictions or engineering controls (restrictions on using water for drinking or a cap or the like).

A good example of an Historical Recognized Environmental Condition that is very common is when a regulatory agency issues a “no further requirements” determination as an UST is properly abandoned in place.

And to be an Historical Recognized Environmental Condition, the condition must meet current regulatory standards.

Note, some conditions identified as an Historical Recognized Environmental Condition under the prior version ASTM E1527-05 will no longer meet this determination under the revised express language of current, 2013, version ASTM E1527-13.

Again, an Historical Recognized Environmental Condition (an HREC) is not a Recognized Environmental Condition for the purposes of a prospective purchaser seeking protection from potential liability under CERCLA.

FTC Finds Truly Organic is Not

By Stuart Kaplow on Posted in Environmental, Federal, Green Washing

By way of a federal court order that became final last month, Truly Organic Inc. and its founder will pay $1.76 million to settle a Federal Trade Commission greenwashing complaint alleging that their nationally marketed bath and beauty products are neither “certified organic” nor “vegan” as falsely claimed.

According to the FTC’s complaint, in this era when many consumer purchases are influenced by environmental claims, since at least 2015, the defendants advertised, labeled, offered for sale, and sold a range of personal care products to consumers, including haircare products, body washes, lotions, baby products, personal lubricants, and cleaning sprays. The products fall into two categories: First, those that Truly Organic “makes” by buying wholesale bath and beauty products and adding ingredients designed to increase their visual appeal; and second, bath bombs and soaps that they “buy as finished products” from online wholesalers and resell at a substantial markup.

Truly Organic sold products nationwide using its own website and voracious social media accounts. The company also sold through third-party websites, including prominent retailers like urbanoutfitters.com, nordstrom.com, and aerie.com, providing third parties with marketing materials used to market and sell Truly Organic products.

Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), prohibits “unfair or deceptive acts or practices in or affecting commerce.”

The complaint alleged that to induce customers to buy Truly Organic products, the defendants used a variety of fraudulent statements that implied their products either are wholly organic or certified organic in compliance with the USDA’s National Organic Program. These deceptive statements included claims that Truly Organic products contain “100% Organic Ingredients,” are “certified organic,” are “USDA . . . organic,” are “100% organic,” or are “Truly Organic.”

The FTC contended, however, that the defendants’ products actually contain ingredients that are not organic, with the non-organic ingredients included only in lists that are buried among other text on product labels and websites.

Further, this is not about organic calamansi juice being “in” and organic celery juice being “out” but that some Truly Organic products incorporated non-organic ingredients that could have been organically sourced, including non-organic lemon juice.

Other Truly Organic products contain non-organic ingredients that the USDA does not even allow in organic handling, such as the chemicals cocamindopropyl betaine and sodium cocosurfactant.

In addition, according to the complaint, some Truly Organic products, such as their bath bombs and soaps, contain no organic ingredients at all, as they come as finished products from wholesalers who do not offer organic products. The complaint alleged that none of the defendants’ products have been certified organic in compliance with the USDA. Truly Organic also falsely advertised products as vegan, even though certain products contain non-vegan ingredients like honey and lactose.

Marketers don’t get to greenwash.

And outrageously, the defendants also admitted they continued to supply marketers and internet influencers with product labels featuring the false certifications for months after resolving a 2016 USDA investigation, and, through 2018, continued to endorse and upload influencer videos to Truly Organic’s YouTube channel containing “certified organic,” “USDA organic,” and “vegan” claims. During this time, the complaint alleged that the defendants regularly bought hundreds of gallons of bath, beauty, and home products they knew did not contain 100 percent organic ingredients, added ingredients to increase their visual appeal, repackaged them, and deceptively sold them to consumers as organic.

The court order settling the FTC’s charges contains both conduct and monetary provisions. First, the order prohibits Truly Organic and Maxx Harley Appelman (.. it is significant the FTC also pursued a claim against the principal of the company) from making deceptive claims, including false or unsubstantiated claims, that any good or service: (1) is wholly or partially organic; (2) contains or uses organic ingredients; (3) is certified organic; (4) is vegan; or (5) has been evaluated by any third party, including one affiliated with the USDA organic program, based on its environmental or health benefits or attributes.

Second, the order bars the defendants from making any representation about the environmental or health benefits of any good or service, unless it is non-misleading, true at the time it is made, and is supported by competent and reliable scientific evidence.

Third, the order prohibits the defendants, in connection with the sale of any good or service, from providing anyone else with the means and instrumentalities that would enable them to make any representation prohibited by the order.

Finally, the order imposes a $1.76 million judgment against the defendants. The FTC filed the proposed order in the U.S. District Court for the Southern District of Florida, and it has now been entered by the court.

“To know if a product is ‘truly’ organic, consumers have to rely on companies to be truthful and accurate,” according to Andrew Smith, the Director of the FTC’s Bureau of Consumer Protection. “That’s why we’ll hold companies accountable when they lie about their products being organic, especially when they’ve used fake certificates and ignored USDA warnings.”

Government to Allow Less Lead in Drinking Water

By Stuart Kaplow on Posted in Environmental, Federal

EPA is expected to publish this week in the Federal Register the first proposed regulatory revisions to the National Primary Drinking Water Regulation for lead in more than 30 years.

The United States has made tremendous progress in lowering children’s blood lead levels (.. children are a good data set analogous to the broader population). As a result of multiple Federal laws, including the 1973 phase-out of lead in automobile gasoline, the 1978 Federal regulation banning lead paint for residential use, and the 1995 ban on lead in solder in food cans, the median concentration of lead in the blood of children aged 1 to 5 years dropped from 15 micrograms per deciliter in 1976–1980 to 0.7 micrograms per deciliter in 2013–2014, a decrease of 95%.  Although childhood blood lead levels have been substantially reduced there is overwhelming evidence to conclude that there are still adverse health effects associated with low-level lead exposure.

After the successes of those regulatory bans on lead, today drinking water is the largest controllable source of lead exposure in the U.S.

Lead enters drinking water mainly from corrosion of lead containing plumbing materials. Lead was widely used in plumbing materials until Congress banned its use in 1986, and there are an estimated 6.3 to 9.3 million homes served by lead service lines in thousands of communities nationwide, in addition to millions of older buildings with lead pipes, solder, fittings or service connections across the U.S. (.. and yes, PVC pipes also contain lead compounds that can leach into drinking water).

Since the implementation of the 1986 lead rule, drinking water exposures have declined significantly, resulting in major improvements in public health. For example, the number of the nation’s large drinking water systems that have exceeded the action level of 15 parts per billion (ppb) has decreased by over 90% and over 95% of the all water systems have not reported an action level exceedance in the last 3 years.

Despite this progress, there is a compelling need to modernize and improve the rule because there is no safe level of lead in drinking water.

Based on the pre-publication version, the proposed rule focuses on 6 key areas, requiring community water systems to:

  1. Identifying the most impacted areas by requiring water systems to prepare and update a publicly-available inventory of lead service lines and requiring water systems to “find-and-fix” sources of lead when a sample in a home exceeds 15 ppb.
  2. Strengthening drinking water treatment by requiring corrosion control treatment based on tap sampling results and establishing a new lower trigger level of 10 ppb (e.g., trigger is described below).
  3. Replacing lead service lines by requiring water systems to replace the water system-owned portion of the lines when a customer chooses to replace their portion of the line. Additionally, depending on their level above the trigger level, systems would be required take line replacement actions.
  4. Increasing drinking water sampling reliability by requiring water systems to follow new, improved sampling procedures and adjust sampling sites to better target locations with higher lead levels.
  5. Improving risk communication to customers by requiring water systems to notify customers within 24 hours if a sample collected in their home is above 15 ppb. Water systems will also be required to conduct regular outreach to the homeowners.
  6. Better protecting children in schools and child care facilities by requiring water systems to take drinking water samples from the schools and child care facilities served by the system.

That is, this is not a residential issue only. Some months ago I published a blog, Is There Lead in the Drinking Water of Your Green School? Among the issues raised in that post is why lead is found in the drinking water of some newly constructed LEED certified schools.

EPA’s proposal does not change the existing action level of 15 ppb. However, EPA is proposing for the first time a new lead trigger level of 10 ppb, which would compel water systems to identify actions that would reduce lead levels in drinking water. EPA’s new 10 ppb trigger level will enable systems to react more quickly should they exceed the 15 ppb action level in the future. These actions could include reevaluating current water treatment or conducting a pipe corrosion control study. Significantly systems above 10 ppb but below 15 ppb would be required to set an annual goal for conducting replacements and conduct outreach to encourage resident participation in replacement programs. Water systems above 15 ppb would be required to annually replace a minimum of 3% of the number of known or potential lines in the inventory at the time the action level exceedance occurs.

Critics have complained that requirement to replace a minimum of 3% of lead impacted lines annually, down from a requirement of 7%, could raise health risks, but EPA is clear that the changes will result in more line replacements, including because the proposed rule removes the many exemptions that currently stall line replacements. Moreover, those critics ignore the new lower 10 ppb trigger for lead reduction activities; a lower floor that should be applauded. 10 ppb is not simply a ‘90s grunge is “in” versus a ‘70s tailoring is “out” trend, but rather the lower floor that has major implications.

Lead is drinking water is much more than only a Flint, Michigan problem. Last year the EPA described lead as the number one environmental public health hazard in the U.S.

Again, to be clear, there is no safe level of lead in drinking water. Period.

That government operated water utilities deliver water containing lead is not acceptable.

Water utility level replacement of lead impacted water lines is incredibly efficacious. Most Americans will not drink only certified bottled water. But they should use a ‘point of use’ certified filter on all tap water and flush the water to reduce exposure to lead from household and school building plumbing.

Comments on the proposed rule must be received within 60 days of being published. And beginning today, use a filter on the tap water at home and work!

ESG Disclosure Simplification Act Passes Committee But Will Fail

By Stuart Kaplow on Posted in Environmental, Federal, Sustainability

On September 20, 2019, the Financial Services Committee in the U.S. House of Representatives passed H.R. 4329, the ESG Disclosure Simplification Act of 2019.

The bill would require all public companies to disclose “environmental, social, and governance [ESG] metrics” as material information about the company. Although there is little if any chance that the bill will become law given the current politics in Washington, DC, the bill’s passage in the House Committee highlights that issues of ESG disclosures continuing to be pressing.

H.R. 4329 would require every public company to disclose to shareholders “a clear description of the views of the issuer about the link between ESG metrics and the long-term business strategy of the issuer.”

The Bill if enacted would also create a new permanent Sustainable Finance Advisory Committee that must within 180 days of first meeting submit to the SEC “recommendations about what ESG metrics” the SEC should require be disclosed. But again, there is no realistic scenario under which this becomes law.

However, issues of ESG live on. Governments in Europe have been pushing businesses to make ESG disclosures for years. There is no similar push in the U.S., except for this and similar legislation; all rightly doomed to fail. On this side of the ocean, a small but vocal number of investors evaluate their stock portfolios by matters that include ESG metrics. That private, non governmental response to the fact that many American investors actually believe issues of “energy and the environment” are among the top priorities, takes up a lot of virtual space in social media, and is a positive.

Numbers are difficult to quantify but one of the world’s largest investment banks, based in Europe, has said that by 2020 it expects half of assets managed by investment companies to have expressed ESG considerations. That number, on a global basis, seems overly optimistic.

The broad lack of widespread public disclosures, utter lack of standardized metrics, and complete lack of enforceable goals makes it difficult accept that ESG metrics will be widely considered in in the U.S. Without any of those three, much, if not most, of the ESG information in the market is at best misinformation. And such creates potential liability for companies making ESG disclosures; if not also some silly results, including maybe the most ridiculed, when last year a major U.S. real estate company very publicly announced its principal ESG “environmental initiative” banning meat from its offices and expense accounts.

In the realm of securities disclosures it is often not enough to be correct. In a year when ‘redefining motherhood’ is in and ‘redefining masculinity’ is out, setting priorities not to mention articulating solutions, is fraught with risk.

This law firm regularly advises public companies about environmental and sustainability including matters that may be subject to the company’s disclosure obligations including annual reports on form 10-K, as well as matters of ESG reporting.

The failure of H.R.4329, the ESG Disclosure Simplification Act of 2019, is not only all but certain, but is not a bad thing.

This is an instance where the marketplace should control and not Congress. More and additional government regulation, micromanaging this discreet set of metrics that may not be material suitable for public disclosure will only stifle and limit good business practices that result in environmental progress. Capitalism has and will drive progress. If public companies determine that investors desire ESG disclosures, management will evaluate the risk and respond.

That market driven decision making will not only drive ESG disclosures, which can be a good thing, and also fuel an underlying environmental stewardship of the planet made possible by today’s technological advances enabled by capitalism, .. all in a positive way that no new law could accomplish.

We can save the planet with capitalism.

LEED Offers Companies a Response to Declining Bird Populations

By Stuart Kaplow on Posted in Environmental, LEED
Condor in the Cordillera Huaywuash, Peru

In response to a much publicized new study on North American bird populations that appeared in the journal Science last month, we received a significant number of inquiries from businesses about what an appropriate response might be from a responsible company?

The study found “cumulative loss of nearly three billion birds since 1970, across most North American biomes, signals a pervasive and ongoing avifaunal crisis.” Since 1970, the researchers estimated, the North American bird population had declined by roughly 29%. The study was published with its own hashtag #BringBirdsBack that was successful in garnering a large public reaction on social media and otherwise to “an overlooked biodiversity crisis.”

So, what is an ethically oriented response for a company?

We have suggested for some businesses an ideal response can be voluntary compliance with the LEED v4.1 Bird collision deterrence credit that aims to “reduce bird injury and mortality from in-flight collisions with buildings.”

The U.S. Green Building Council’s LEED green building rating system is widely accepted and while LEED certification certainly has its advantages, our advice is that a very good response can be to enact company practices complying with this single LEED credit. The credit publicly available at the USGBC website, has three requirements:

There are new v4.1 versions of the credit for new construction as well as existing building. 1. For new construction, companies should develop a building façade to make the building and site structures visible as physical barriers to birds (.. yes, including ‘bird safe glass’). 2. For all buildings, including existing structures, limit the duration of interior and exterior lighting. Exterior building fixtures that are not necessary for safety, building entrances, and circulation can be automatically shut off from midnight until 6 a.m. The credits allow for manual override capability for after hour use. And 3., the credit requires a three year monitoring plan to identify and document locations where repeated bird strikes occur such that potential design solutions can be implemented. The credit language is here.

Utilizing a third party created LEED credit (although in this instance originally drafted by the American Bird Conservancy) can provide a credible response mitigating risk of criticism for greenwashing, that can be touted in corporate sustainability claims including in ESG reporting (yes, public companies are including bird safe policies in public reporting). Be aware LEED water use reduction credits are frequently used to articulate potable water reduction requirements.

But there are issues with allowing public sentiment reacting to the environmental issue of the minute to dictate corporate, or for that matter public, policy.

A 2014 study, conducted by scientists from the Smithsonian Institution and the Fish and Wildlife Service, estimated that between 365 million and 988 million birds are killed in the United States every year as a result of building collisions. But that study concluded that building collisions, driven by the increased use of glass building facades, are second to cats as the greatest threat to birds. But banning housecats does not make a good business response.

It is suggested that green building programs, like LEED, encourage using natural light to reduce energy use and encourage green views, result in the use of more glass as a building skin. And windows are no friends to birds as we all know from the popular old Windex television ad. Moreover, in a published report, the Urban Green Council, a chapter of the USGBC indicates “today, almost all large, complex buildings make the same trade off:  they add more glass (leading to an energy penalty), and make up for it with superior mechanical systems.” In response to that collateral damage of the environmental kind. USGBC now awards up to one point on its LEED scale for the adoption of bird collision deterrence mitigation.

So yes, it is an unintended consequence of LEED green building that creates the solution to this environmental issue of the day.

But there is no nationwide repository of bird casualties or injuries, so estimating the scope of this is difficult. It is widely perceived that building collisions, and particularly collisions with windows, are a major threat to birds, with estimates swinging widely. A recent literature search published in The Condor, based on 23 studies, estimates that between 365 and 988 million birds are killed annually by window collisions in the U.S., with roughly 56% of mortality at buildings 4 to 11 stories, 44% at buildings 1 to 3 stories, and less than 1% at skyscrapers. But keep into in mind there are only about 21,000 buildings 12 stories or higher in the U.S. versus over 123 million 1 to 3 story buildings, so statistically only 24 birds might perish each year at any one skyscraper (and that number is likely artificially high because only a small percentage of those skyscrapers are located in bird flyways).

How many birds can actually be saved by a building implementing the LEED credit is debatable but remember the task is an ethically oriented response for the large number of businesses that contacted our office this month, reacting to the overwhelming public outcry on social media and otherwise to the 3 billion birds that vanished.

However, on a personal note I spent most of August trekking and climbing across the Cordillera Huaywuash in Peru, where I saw nearly a hundred Andean condors (.. including the condor in the photo above), one of the bird types that have flourished, according to the journal Science study, increasing in population by more than 200%, in the Americas since the 1970s.

Greenbuild – The Target Rich Environment for Green People

By Stuart Kaplow on Posted in Green Building, LEED

I am often asked, “how can I expand my green building business?” And I have offered the same response for more than a decade – attend the Greenbuild International Conference and Expo (.. yes, you will have to talk with people while you are there).

This year Greenbuild is in Atlanta from November 19 thru 22 with some of the best original programming on “disaster prep” (.. more than food prep).

Greenbuild has become much more than only “green building” as sustainability has become woven into the fabric of business, the conference has evolved into the watering hole for leaders across the entire environmental industrial complex.

I do not claim any particular knowledge or skill in business marketing. But Greenbuild has been a prime source of new clients for my environmental law practice focusing on sustainability and green building law practice (.. okay, this blog is actually our number one source of new clients, but Greenbuild is second)!

I have attended a lot of Greenbuilds. Actually my first U.S. Green Building Council “Green Building Conference” (.. yes, pre Greenbuild) held in conjunction with the National Institute of Standards in Gaithersburg, Maryland in 1994 had only 450 people in attendance. While attendance in recent years is off a bit from the huge Greenbuild the first time the conference was in Boston in 2008, with 27,995 attendees (.. that was a party!), last year the 15,373 attendees in Chicago dwarfed the first Greenbuild in 2002 when a mere 4,189 people gathered in Austin.

Those 15,373 attendees last year were from 91 countries, despite the internationalization of LEED and several worldwide Greenbuild expos across the globe.

Greenbuild attracts all types of wild things across the environmental industrial complex; not just owners of green buildings. Last year 35% of those in Chicago were from architecture or engineering firms, 22% were developers or builders, 7% were utilities, and 8% were manufacturers, not to mention the very large numbers of professionals offering services and consulting, including, yes, a respectable assemblage of real estate attorneys.

And Greenbuild is sustainable. My favorite factoid reported by Informa Exhibitions (.. USGBC sold Greenbuild some years ago) is that each participant produced 5.1 lbs. of waste; of which more than 86% was diverted. And if that number does not excite you, Informa tracked and reported the alternative fact that total water footprint of the event was 5,537,275 gallons.

Last year there were 350 exhibitors on the 100,000 square feet Expo Floor. It is all but impossible not to encounter new vendors and innovative suppliers and this year with two happy hour events on the Expo Floor that will be “the place” to connect with colleagues and network with complete strangers. Educational activities abound with more than 200 formal sessions.

Those 2018 demographics are proof that Greenbuild is the largest green building gathering each year and unquestionably the par excellence opportunity for business development among “green people.”

Greenbuild 2019 in Atlanta will be “the” target rich environment for green people this year. It is your chance to not only rub elbows with USGBC CEO Mahesh Ramanujam, the man to know, but also the thousands of others who make a living in the environmental industrial complex.

It is just over 58 days until this once a year excelsior (.. Stan Lee’s battle cry) opportunity to enlarge your green building business.

For those who will complain that this blog post is shameless promotion, that may be true, but it is also correct that Greenbuild has been a prime source of new clients for my environmental law practice for more than a decade! LEED is still ground zero for green building. It has become all but a spiritual movement, with more than 98,000 registered and certified projects participating in LEED across 167 countries and territories. Every day, 2.6 million square feet of building space certifies to LEED.  I won’t promise attending will be a quest for self discovery or that you will meet your next spouse among one of the more than 14,000 individual USGBC members, but if you want to benefit from that business volume and be in the room with more sustainable business leaders than will gather any of place or time this year, you need to be at Greenbuild.

As a reader of my blog, if you email me before Greenbuild, I will gladly buy you a cup of coffee or other libation at an Atlanta watering hole. I made a similar offer in past years and had a great time meeting a lot of very fun people for drinks. I hope to see you in Atlanta in November.

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