Green Building Law Update

Environmental Law and Sustainability for Business

Archives: Federal

Tenants Order Phase l to Avoid Hazardous Substance Liability

By Stuart Kaplow on March 31, 2019 Posted in Environmental, Federal

It has been a year since the omnibus spending bill signed on March 23, 2018 amended the Superfund law, for first time making clear that tenants can qualify as bona fide prospective purchasers, protected from cleanup costs from the presence of hazardous substances on a property; but tenants are only now beginning to order Phase … Continue Reading

On the 25th Anniversary of Lead Based Paint Disclosures

By Stuart Kaplow on March 10, 2019 Posted in Environmental, Federal

Use of lead is not new. Lead was one of the first metals discovered by man and was in use before 3000 BC. Beginning in 753 BC, the ancient Romans used lead for making water pipes and kitchen cookware. Today many believe lead poisoning was the culprit for the infertility of Julius Caesar (.. who … Continue Reading

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

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

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

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

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

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

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

Solar Powered Advertisement is Deceptive

By Stuart Kaplow on May 28, 2017 Posted in Federal, Solar Panel

Billboard in Italian Train Station

A business installs photo voltaic panels on its roof to generate power, and advertises that it is “solar powered.” The business, however, sells the Renewable Energy Certificates (RECs) that are generated by the solar power. Even if the business is near net zero for electricity generated by the solar panels, according to guidance from the … Continue Reading

Prospering thru Green Building in a Changing Environment

By Stuart Kaplow on April 2, 2017 Posted in Federal, Green Building, Paris Accord, Sustainability

I spoke to a gathering of construction industry attorneys the other day about changing environment of Federal government regulation portending huge business opportunities for green building. These were my prepared remarks for that talk. While much of the mass media hyperbole is focused on the new Administration’s 2018 “skinny” budget request of $5.7 Billion for … Continue Reading

The Opportunity for ENERGY STAR

By Stuart Kaplow on March 19, 2017 Posted in Climate Change, Environmental, Federal, Green Building

While much of the media hyperbole has focused on the Trump Administration’s 2018 Budget request of $5.7 Billion for the Environmental Protection Agency, a reduction of $2.6 billion, or 31%, from the 2017 level of funding, little attention has been paid to specific priorities including the resultant opportunities for green building. One of the key … Continue Reading

Is there Lead in the Water of your Green Building?

By Stuart Kaplow on February 19, 2017 Posted in Environmental, Federal, Green Building

The subject of lead leaching from pipes and faucets into drinking water within buildings is not new. But the broad growth of green buildings, including green schools, that include water conservation strategies has the potential to negatively impact the quality of drinking water in those green building plumbing systems. To reduce indoor water consumption, LEED … Continue Reading

Is the New USDA Organic Rule Dead on Arrival?

By Stuart Kaplow on January 22, 2017 Posted in Environmental, Federal, Sustainability

On January 19, 2017, the U.S. Department of Agriculture published a new list of rules governing the treatment of animals that are ultimately sold to consumers as organic food. It is suggested that these amendments to the existing organic livestock and poultry production requirements are an exercise in futility both in that they were published … Continue Reading

FTC Order Restricts use of “All Natural”

By Stuart Kaplow on January 1, 2017 Posted in Environmental, Federal, Sustainability

The Federal Trade Commission issued a summary decision against California Naturel, Inc., for falsely advertising its sunscreen product as “all natural” in violation of Sections 5 and 12 of the FTC Act. In a December 12, 2016 opinion, written by Chairwoman Edith Ramirez, the FTC describes how the company promotes its “all natural” sunscreen on … Continue Reading

Less Climate Change Disclosure by Public Companies

By Stuart Kaplow on December 11, 2016 Posted in Climate Change, Environmental, Federal, Sustainability

Publicly traded companies are required to disclose material business risks to investors through regular filings with the Securities and Exchange Commission. Since February 8, 2010, the SEC has expressly required disclosure related to climate change. While it has been controversial, the SEC’s 2010 interpretive guidance, the Commission Guidance Regarding Disclosure Related to Climate Change, which … Continue Reading

Trump Election Can Make Green Building Great Again

By Stuart Kaplow on November 10, 2016 Posted in Energy, Environmental, Federal, Green Building, IgCC, LEED

Election day 2016 in which Donald Trump was elected the 45th President of the United States and Republicans control both houses of Congress portends huge business opportunities for green building. As the Executive and Legislative Branches look to arrest existing environmental and energy policies while driving up growth and lowering taxes, enabling voluntary green building … Continue Reading

Organic on the FTC Agenda

By Stuart Kaplow on October 16, 2016 Posted in Environmental, Federal, LEED, Sustainability

The word “organic” as it relates to non-agricultural products is the topic of the October 20, 2016, roundtable sponsored by the Federal Trade Commission and the U.S. Department of Agriculture. This is a big deal. The roundtable will explore interpretations of organic claims for products that fall outside the scope of the USDA’s National Organic … Continue Reading

New Federal Floodplain Regulations Rewrite 100 Year Floodplain

By Stuart Kaplow on September 4, 2016 Posted in Environmental, Federal, Sustainability

The Federal Emergency Management Agency (FEMA) is proposing to rewrite the longstanding 100 year floodplain standard for federally funded projects such that most building would now have to be 2 feet freeboard. In the name of resilience, reliability and green this proposed regulation will result in significant additional first costs for affected building. FEMA is … Continue Reading

HUD Jumpstarts PACE Financing for Homes

By Stuart Kaplow on July 24, 2016 Posted in Codes and Regulations, Energy, Federal, Green Building, Local Government, State, Sustainability

Last week the U.S. Department of Housing and Urban Development and the Department of Veterans Affairs released new guidance, changing their previous positions, now widely allowing residential Property Assessed Clean Energy (PACE) financing. With the guidance, PACE financing, where payments for energy efficiency, water conservation and renewable energy improvements to real estate are made through … Continue Reading

GMO Labels Coming to your Supermarket

By Stuart Kaplow on July 17, 2016 Posted in Environmental, Federal, Sustainability

On the last day before leaving on a seven week recess, this past Thursday Congress enacted The Safe and Accurate Food Labeling Act of 2015 requiring the U.S. Department of Agriculture to regulate the labeling of bioengineered foods (often described as genetically modified foods or GMOs). The bill trumps the Vermont GMO labeling law that … Continue Reading