It is widely accepted that the greenest building is one already built. So, why then on the 20^th anniversary of many state brownfield programs, is there so little correlation between green buildings and brownfields?

Green building ratings systems, standards and codes expend a great deal of verbiage on aims reducing embodied carbon, including the currently in vogue whole building life cycle assessments in complicated, expensive and risky environmental product declarations and the like, but green building programs have all but totally failed to accelerate the reuse of already built structures.

A brownfield is a property, the expansion, redevelopment, or reuse of which may be complicated by the presence, potential presence or perceived presence, of a hazardous substance. It is estimated that there are more than 450,000 brownfield sites across the U.S. impacted by an actual presence of hazardous substances and many times that number with a potential or perceived presence.  Cleaning up and reinvesting in these buildings not only increases local tax bases, facilitates job growth, utilizes existing infrastructure, takes development pressures off of undeveloped land, but also has the potential to dramatically improve and protect the planet, by reducing embedded carbon associated with the range of greenhouse gas emissions arising from the construction of a new building.

Those who feign concern about climate change will know the manufacture of building materials reportedly makes up 11% of total greenhouse gas emissions.

But, only 6% of LEED new construction projects have achieved the Brownfield Redevelopment credit (i.e., 594 of 9670 certified projects achieved the NC-2009 SSc3)!

Moreover, there is another very real and present reason that brownfield laws should be accessed.

There are generally only two ways in which environmental liability for existing contamination can be extinguished for a prospective existing building owner, who would otherwise become responsible for that contamination upon acquisition of the property. The first (and commonly utilized) approach requires that the purchaser demonstrate that it has exercised due care prior to taking title to the property by complying with the federal standards for conducting “all appropriate inquiries” (.. obtaining a Phase I Environmental Site Assessment without any recognized environmental conditions). This bona fide prospective purchaser approach is authorized by federal law.

The second approach, which has now existed in many states for 20 years, but remains little utilized, is for the purchaser to submit an application to a state brownfield program (e.g., the Maryland Voluntary Cleanup Program) seeking “inculpable person” status. Most state programs describe an inculpable person as “a person who has no prior or current ownership interest in the property at the time of application and has not caused or contributed to contamination at a property.” State laws provide government liability releases not only to an inculpable person, but also to lenders and successors in interest in the real estate; making this approach the preferred path for many properties, including those buildings in particular that are not eligible after conducting a Phase I Environmental Site Assessment (i.e., the Assessment reveals a recognized environmental condition on the property).

There is no doubt, the more buildings soon to be conveyed would be advantaged by being entered into a state brownfield program.

As green building programs look to be relevant in an era of diminishing market share, the next versions of those rating systems, standards and codes would do well to accentuate and a make a priority of giving credit for brownfield program participation. Given the large stock of existing buildings in North America (and the relevantly modest number of new commercial buildings constructed each year), such might not only save a green building program, but also preserve our way of life on this planet.

This blog post was the syllabus for a talk I recently presented to real estate professionals on the 20^th anniversary of state brownfield programs.