Howard County, Maryland has become the first jurisdiction in the state and one of few places in the country to pass a mandatory “bird-friendly design” law for new construction of privately owned buildings.

The new law enacted on July 7, 2020 and effective on September 6, 2020 requires at the time of building permit application, the applicant for new construction submit,

Documentation showing that the building meets:

1. 1. The bird-friendly design standards of the 2011 edition of “Pilot Credit #55: Reducing Bird Collisions” in the LEED green building rating system; or
   2. The bird-friendly design standards that the Director adopts by regulation and that are equivalent to Pilot Credit #55.

Howard County has since 2008 been one of a limited number of jurisdictions across the country with a mandatory LEED green building law for private buildings. So, it is interesting that advocates for this bill, including a spokesperson for the Maryland Ornithological Society criticized green building programs, like LEED, that encourage using natural light to reduce energy use and encourage green views, resulting in the use of more glass as a building skin. “What [the bill] really is referring to is these big, glass buildings today that literally threaten the existence of birds because birds fly into the glass, unable to realize that it is glass, and they are dying by the millions as a result of these big, glass buildings,” said County Council chair, Deb Jung, who sponsored the bill.

Okay, 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, the New York City 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 in its LEED rating system for the adoption of bird collision deterrence mitigation. And interestingly, New York City passed a building code amendment last year requiring effective December 2020 the lowest 75 feet of new buildings to incorporate “avian-friendly materials” (.. a much more modest approach than the Howard County enactment).

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

It was widely reported last year after an article in the journal Science that there are fewer birds. 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%.

But there are problems with allowing public sentiment reacting to the environmental issue of the minute to dictate 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 public policy in Howard County or elsewhere?

But there is no authoritative nationwide repository of bird casualties or injuries, so estimating the scope of this is difficult. A recent literature search published in The Condor, based on 23 studies, estimates that roughly 56% of mortalities are at U.S. buildings 4 to 11 stories, 44% at buildings 1 to 3 stories, and less than 1% at skyscrapers. But keep in mind there are only about 21,000 buildings of 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). And Howard County is not in any major bird flyway.

How many birds will actually be saved by the new law is debatable but it will have limited application in that it only applies to “new construction of buildings that are not publicly funded and have 50,000 square feet or more of gross floor area, or in downtown Columbia 10,000 square feet or more, ..” and does not apply to residential buildings less than 5 stories in height, and other expressly excluded building types. The County Department of Inspections, Licenses and Permits statistics indicate it would apply to less than 1% of permits issued each year.

Moreover, there is a fatal flaw in the language of the new law when it expressly requires compliance with the “2011 edition of “Pilot Credit #55” but that is not the current LEED credit and the 2011 version is archived and  not available for use on current projects, which the County requires be LEED certified?! USGBC made substantive changes to the credit in 2015 and in 2016 and again in 2019 resulting in the current LEED v 4.1 SSpc55 credit, but zealots may have preferred the originally drafted version by the American Bird Conservancy? A possible fix might be a regulation promulgated by the Directors allowing approval by GBCI of “the currently applicable version of the LEED Bird collision deterrence credit.”

But in 2020, when in most places Birds are “out” and Birds of Prey are “in” Howard County can afford to enact less than ideal laws because it is one of the 10 wealthiest counties in the U.S. with an average household in excess of $116,000.

With the Maryland poultry industry producing more than 600 million birds a year, the bigger environmental, if not also public health issue is Avian Influenza that not only decimates flocks of chickens and turkeys, but kills people.

Let me be clear, I have advocated that for some businesses it may be ideal to announce voluntary compliance with the LEED v 4.1 Bird collision deterrence credit to “reduce bird injury and mortality from in-flight collisions with buildings” owned by the business. Green building laws that promote innovation and create an environment rich for investment in real estate can repair our planet, but mandatory bird laws, like Howard County Bill No. 11-2020, are not only not efficacious, but not good environmental public policy.

On a personal note, at a time when all of our wings are clipped and not travelling, I am thinking back to my summer last year, 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.