In response to legislation enacted by the Maryland General Assembly in 2018, overriding a veto by the Governor, commencing last week new public school building no longer has to be LEED certified or the like.

This is a major change in public policy for the Old Line State that has required by law that all new state funding building be third party certified as green for more than a decade, resulting in 161 LEED certified pre K through 12 public schools. But no longer ..

Existing State Finance and Procurement Code Section 4-809(f) was amended adding new section (6), providing in relevant part, the Maryland Green Building Council shall:

“(6)  develop guidelines for new public school buildings to achieve the equivalent of the current version of the U.S. Green Building Council’s LEED (Leadership in Energy and Environmental Design) Green Building Rating System Silver rating or a comparable rating system or building code as authorized in Section 3-602.1 of this article without requiring an independent certification that the buildings have achieved the required standards.”

The import of the new statute is that new public school buildings (which has been interpreted to be pre K through 12 and not university dormitories or community college classrooms) need no longer be third party certified as a green building such as LEED, Green Globes or the like.

Be aware, there is another compliance path where a building could be built to comply with the 2012 International Green Construction Code, however, no public building in Maryland has ever accomplished that alternative compliance path because it is suggested as amended by the state the IgCC is unbuildable (but the Maryland Department of Labor may in 2020 consider approving for use the 2015 or 2018 IgCC, which may result in a viable alternative for school construction?).

The Maryland Green Building Council, a government body not affiliated with the USGBC, sought input over the past year in implementing the law from the public and stakeholders, including input from local education agencies responsible for most school construction in the state.

At its October 16, 2019 meeting the Maryland Green Building Council recommended for approval, the following guidelines,

The school shall be designed and constructed to meet requirements of the Maryland High Performance Green Building Program with the exception of obtaining an independent, third-party certification as an element of one of the proprietary rating systems described in the Program. The architect or engineer of record shall indicate in the construction documents, the selected high-performance rating system used for design and construction with which, the project is compliant. The LEA may obtain a Letter of Opinion from an Independent Third Party to be submitted as a compliance document in accordance with Appendix B of the Program.”

On November 13, 2019, the Secretary of the Maryland Department of General Services “approved” that recommendation. It was circulated last week as now effective.

Significantly, the new mandatory guidelines expressly provide the local school system “may” obtain a letter of opinion from an independent third party evidencing that the new school building was designed to satisfy and then constructed meeting the requirements of LEED or Green Globes as modified by the state.

We anticipate that most local school systems will take advantage of obtaining that third party opinion that it has complied with the law that the school building be so designed and constructed. Schools are greet at educating young people, but not expert in constructing buildings, green or otherwise and local education agencies are not interested in taking on the risk of constructing a building that will not meet the still mandated LEED or Green Globes standard.

That is, as much as I personally believe in third party certification, it is clear from conversations with local education agencies that in nearly all instances they will determine to take advantage of the new guidelines and not pursue LEED or Green Globes “certification” but they will construct a “certifiable” building and obtain an opinion of counsel or otherwise that the building complies with the law. The guidelines actually expend more words on the subject of “independent third party letter of opinion” than anything else, including not only that the opinion giver can not be a member of the project team but even specifying the form of opinion letter.

This law firm will issue those opinions of counsel to local education agencies in Maryland.

As described in a blog post I penned in 2016, Lawyer’s Opinion Matters in Green Building, this law firm has been regularly called upon to give legal opinions that a green building is LEED certified, certifiable or otherwise ‘really’ a green building. In fact, we gave our first legal opinion on a LEED certified public building in Maryland in 2002.

Public school construction is a big deal in the state. Maryland House Speaker Adrienne A. Jones recently announced that school construction was her number one priority in the 2020 General Assembly session and she proposed funding an extra $2.2 Billion over two years for local school systems (e.g., in FY 2019 the state approved over $412 Million for local school building). Last week, Maryland Governor Larry Hogan proposed the legislature approve $3.8 Billion in new school building over five years. Whatever is ultimately enacted and both proposals rely on anticipatory revenue bonds, a fiscally risky scheme (funded by casino taxes), it is clear that Maryland is going to be constructing a lot of new public school building in the coming years and that building will not be LEED or Green Globes certified, but rather designed and constructed to be LEED or Green Globes certifiable.

The trend of constructing certifiable versus actually certifying a green building is gathering speed and breadth across the nation. That movement is described by some as the backward march of civilization, but is better characterized as a return to the organic LEED as a voluntary standard without government dictating green building.

This law firm will offer counsel and advice on revising bidding and contract documents to advantage the new guidelines and will issue opinions of counsel to local education agencies across Maryland that their new public school buildings are LEED or Green Globes certifiable and, as such, comply with Maryland law.

In the interest of disclosure, I am a gubernatorial appointee to the Maryland Green Building Council. I abstained from the vote on the guidelines.