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Archives: Codes and Regulations

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Tenant’s New Defense to Hazardous Substance Liability

By Stuart Kaplow on December 2, 2018 Posted in Environmental, Federal

Buried in the omnibus spending bill signed earlier this year were amendments to the Superfund law that for the first time make clear that tenants can qualify as bona fide prospective purchasers, protected from cleanup costs from the presence of hazardous substances on a property. The Consolidated Appropriations Act signed on March 23, 2018 included … Continue Reading

Green Building Codes Not Eligible for Copyright Protection

By Stuart Kaplow on October 28, 2018 Posted in Codes and Regulations, Green Building

A decision earlier this month by the Eleventh Circuit United States Courts Of Appeals goes further than other modern courts in describing that building codes when adopted by local government cannot be copyrighted. Ruling that “the law,” whether by statute, ordinance, regulations, or code, and even when its source is a judicial opinion, is not … Continue Reading

Mission Critical at the Department of Defense now includes Climate

By Stuart Kaplow on August 19, 2018 Posted in Climate Change, Environmental, Federal

On August 13 the President signed the John S. McCain National Defense Authorization Act for Fiscal Year 2019. The $716 billion H.R. 5515, authorizes appropriations for the Department of Defense for procurement of everything from aircraft, missiles, ammunition, shipbuilding and space defense to military installation construction; and is arguably the most significant environmental legislation enacted … Continue Reading

SEC Assessment of Climate Change Risks Still Mandated

By Stuart Kaplow on August 12, 2018 Posted in Climate Change, Federal

While I was on the Baltoro glacier making my way down from K2 in Pakistan earlier this month the Securities and Exchange Commission informed Exxon Mobil Corp. that it closed its investigation into whether the company had misled investors about the risks that climate change posed to its business. The ending of the probe that … Continue Reading

Your ENERGY STAR Score is About to Fall Precipitously

By Stuart Kaplow on June 10, 2018 Posted in Codes and Regulations, Energy, Green Building, Green Globes, LEED

Building owners that utilize ENERGY STAR Portfolio Manager will see a dramatic change in the 1 to 100 ENERGY STAR scores after August 26, 2018. Every score model we reviewed saw a drop in ENERGY STAR score except hotels. You have 75 days to act. The change is significant for buildings pursuing LEED or Green … Continue Reading

European Data Privacy Law Applicable to Green Buildings

By Stuart Kaplow on May 6, 2018 Posted in Codes and Regulations, Green Building

With the upcoming May 25, 2018 effective date for the new European General Data Protection Regulation, the European Union law drafted to provide greater protections for the personal data of individuals, it is a good time to review and consider the large quantity of data generated by green buildings. The EU GDPR has long arms … Continue Reading

Local Laws Stop the Setting Sun on Solar Installations

By Stuart Kaplow on April 8, 2018 Posted in Energy, IgCC, Local Government, Solar Panel

Two bills pending in the Montgomery County Council aim to increase the use of renewable energy in the suburban Maryland County. At a time when the number of households installing solar panels on their roofs declined last year, the first annual decline since 2000, and a decline by more than 15% when compared with the … Continue Reading

Back to the Future with “Navigable Waters of the United States”

By Stuart Kaplow on February 4, 2018 Posted in Environmental, Federal

Last week the Environmental Protection Agency and U.S. Department of the Army finalized a rule adding an applicability date to the 2015 Rule (that never went into effect) defining “waters of the United States.” But, the 2015 Rule will now not be applicable until two years following publication of the applicability date rule in the Federal Register … Continue Reading

Saint Paul Green With Envy

By Stuart Kaplow on January 21, 2018 Posted in City, Green Building, Green Globes

When the Saint Paul City Council votes this Wednesday on Ordinance 17-60 it should amend the legislation to not delete, from the existing law, Green Globes as one of the approved green building standards. The work product of an advisory committee of experts, Ord 17-60 Sustainable Building Regulation Ordinance, alters and amends the 2009 Resolution … Continue Reading

Fireworks Cause Air Pollution But

By Stuart Kaplow on December 31, 2017 Posted in Environmental, Federal

In a very good example of striking the right balance between environmental protection and celebratory festivities, despite that fireworks degrade air quality with particulate matter, in the United States we have decided that the pyrotechnic show must go on. Fireworks have a storied history in the United States best articulated in a July 3, 1776 … Continue Reading

Migratory Bird Treaty Act Reform is for the Birds

By Stuart Kaplow on December 17, 2017 Posted in Federal

A week after this blog post, the Office of the Solicitor issued a memorandum the subject line of which was, “The Migratory Bird Treaty Act Does Not Prohibit Incidental Take.” The very first page of the Memorandum ends with the sentence, “Interpreting the MBTA to apply to incidental or accidental actions hangs the sword of … Continue Reading

EPA Ends Perverse Practice of “Sue and Settle”

By Stuart Kaplow on October 22, 2017 Posted in Codes and Regulations, Environmental, Federal

“The days of regulation through litigation are over,” according to EPA Administrator Scott Pruitt. In fulfilling his promise to end the practice of regulation through litigation that has harmed the American public, the EPA Administrator issued an agency wide directive on October 16, 2017 designed to end “sue and settle” practices within the Agency, restoring … Continue Reading

Rhode Island goes for LEED for Neighborhood Development and SITES

By Stuart Kaplow on October 15, 2017 Posted in Codes and Regulations, LEED

The State of Rhode Island is expanding its longstanding Green Buildings Act adding built landscapes to the list of public projects that must be built to recognized green building standards. Rhode Island has since 2008 mandated the public construction projects larger than 5,000 gross square feet “shall be designed and constructed to at least the … Continue Reading

50 Shades of Green in Montgomery County

By Stuart Kaplow on October 1, 2017 Posted in Codes and Regulations, IgCC, LEED

Green building will remain mandatory for new construction in Montgomery County, Maryland and effective December 1, 2017, the International Green Construction Code 2012 will be a permitted alternative. Montgomery County was among the first local jurisdictions in the country, in 2008, to adopt a mandatory green building law for private building, requiring most new construction … Continue Reading

Denver Voters Petition Green Roof Mandate to the Ballot

By Stuart Kaplow on September 10, 2017 Posted in Codes and Regulations, Green Building

The Denver Elections Commission has announced that the Denver Green Roof Initiative, a mandatory green roof ballot initiative will appear on the November 7 ballot. A ballot initiative is a means by which a petition signed by a certain minimum number of registered voters can bring about a public vote on a proposed statute or … Continue Reading

Green Globes to be Approved in Maryland

By Stuart Kaplow on August 27, 2017 Posted in Codes and Regulations, Green Building, Green Globes, LEED, State

Last week the Maryland Green Building Council voted unanimously to recommend that Green Globes, at the two Green Globes level, be approved by the Maryland Secretaries of Budget and Management and General Services as a “high performance building” as defined in Maryland law. The vote is being widely heralded as a significant step forward in … Continue Reading

Solar Panel Tariff Fight Makes Strange Bedfellows

By Stuart Kaplow on August 20, 2017 Posted in Energy, Federal, Solar Panel

The U.S. International Trade Commission held a nearly 10 hour initial public hearing this past Tuesday on a petition seeking tariffs and price minimums on low cost imported solar panels. The petition seeks duties of 40 cents per watt on imported solar cells and also a floor price of 78 cents per watt on solar … Continue Reading

You Should Not Contract With Your Environmental Consultant

By Stuart Kaplow on August 13, 2017 Posted in Codes and Regulations, Environmental

In an effort to mitigate risk you should not contract directly with an environmental consultant, but rather your attorney should contract with that consultant. While laws vary from state to state, in the vast majority of factual situations a business or property owner is ill served by contracting directly with a third party for most … Continue Reading

FTC Settles Charges Over Deceptive Zero VOC Claims

By Stuart Kaplow on July 23, 2017 Posted in Environmental, Federal, Green Building

Paint Can Label from Exhibit B in FTC Complaint

Four paint companies have agreed to settle Federal Trade Commission charges that they deceptively promoted products as containing zero volatile organic compounds (VOCs) or as emission free, including during and immediately after application. Some promotions also made explicit safety claims. Specifically, the first FTC complaint alleges, In connection with the advertising, promotion, offering for sale, … Continue Reading

South Miami Poised to Mandate Solar Panels

By Stuart Kaplow on July 16, 2017 Posted in Codes and Regulations, Energy, Solar Panel

The City of South Miami, Florida City Commission is scheduled to take a final vote on July 18 on an ordinance that will require rooftop photovoltaic panels on new construction and major renovations. The ordinance is likely to pass given that at its July 12 meeting the second reader version of this ordinance passed with … Continue Reading

Superfund can Save Our Current Way of Life

By Stuart Kaplow on July 2, 2017 Posted in Codes and Regulations, Environmental

Superfund is broken. “[W]e all know it doesn’t work — the Superfund has been a disaster,” said President Clinton. President Bush described the need for a program overhaul. President Obama acknowledged the 37 year old federal program’s flaws while seeking more funding. And now under President Trump there is action to clean up the Superfund … Continue Reading

PACE in Maryland is Not Keeping Pace

By Stuart Kaplow on June 25, 2017 Posted in Codes and Regulations, Green Building, Solar Panel

In 2008 I said Property Assessed Clean Energy (PACE) loans “could be bigger than anything in U.S. real estate since the invention of the glass window.” But today, despite Maryland having enacted a PACE enabling law in 2014, only one PACE loan has closed in the State. By any measure, one is not an overwhelming … Continue Reading

Attorney General’s End of Third Party Settlements is Good for the Environment

By Stuart Kaplow on June 11, 2017 Posted in Codes and Regulations, Environmental, Federal

Attorney General Jeff Sessions issued a memo on June 5, 2017 to all Department of Justice components and 94 U.S. Attorney’s Offices prohibiting them from entering into any agreement in settlement of federal claims or charges that directs or provides for a settlement payment to non-governmental, third parties that were not directly harmed by the … Continue Reading

Retailers Pay Millions for Hazardous Waste Violations

By Stuart Kaplow on June 4, 2017 Posted in Codes and Regulations, LEED

Retailers across the nation are buttressing their trash disposal practices after Dollar General Stores and Big Lots Stores paid Millions of dollars to settle civil suits for environmental violations for the unlawful disposal of hazardous waste, including customer returned merchandise and batteries. Most businesses should have a solid waste management plan to provide staff with … Continue Reading