Green Building Law Update

The Intersection of Real Estate, Science, and Law

Chinese Military Hackers Charged with Disrupting U.S. Solar Market

By Stuart Kaplow on May 21, 2014 Posted in Sustainability

A grand jury in the Western District of Pennsylvania has indicted Chinese military hackers for computer hacking, economic espionage and other offenses directed at a solar products manufacturer in America.

The indictments, the first time criminal charges have been filed against known state actors for hacking received wide spread attention earlier this week. And while the mainstream media described the U.S. corporate victims as in the nuclear power and metals industries and a labor organization, scant attention has been paid to the fact that one of the businesses is a solar panel manufacturer.

The indictment made public this past Monday, alleges that Wen Xinyu, one of five named defendants, who is officer in Unit 61398 of the Third Department of the Chinese People’s Liberation Army, hacked the computers of U.S. subsidiaries of SolarWorld AG several times to glean its strategy in a trade dispute with China.

In 2012, at about the same time the Commerce Department found that Chinese solar product manufacturers had “dumped” products into U.S. markets at prices below fair value, Wen and at least one other, unidentified co-conspirator, stole thousands of files including information about SolarWorld’s cash flow, manufacturing metrics, production line information, costs, and privileged attorney-client communications relating to ongoing trade litigation, among other things. The information enabled Chinese competitors to target SolarWorld’s business operations aggressively from a variety of angles.

On February 5, 2014, Frank H. Asbeck, founder and CEO of SolarWorld, issued an open letter to President Barack Obama requesting his “support for both the U.S. manufacturing and installation wings of the domestic solar industry as they confront trade aggression from China.”

I had written in a blog post last October, Bankruptcy Trustee Sues Chinese Over Solar Panel Dumping, about a case filed in the U.S. District Court Eastern District of Michigan, claiming the object of the Chinese state owned companies’ illegal dumping actions was to drive established solar industry leader, Energy Conversion Devices, out of business.

“For too long, the Chinese government has blatantly sought to use cyber espionage to obtain economic advantage for its state-owned industries,” said FBI Director James B. Comey. “There are many more victims, and there is much more to be done. With our unique criminal and national security authorities, we will continue to use all legal tools at our disposal to counter cyber espionage from all sources.”

This criminal case charging five Chinese military officers should be a wakeup call to all; not only have Alcoa, Westinghouse, and U.S Steel been damaged, but every U.S. business and homeowner with solar panels on a roof has been a victim of Chinese economic espionage.

LEED v4 has a New and Improved Registration Contract

By Stuart Kaplow on May 19, 2014 Posted in LEED

USGBC proudly boasts that LEED v4 has 80% fewer forms when compared to LEED 2009. Not only are there fewer fields to document with the removal of low value content, but the user experience is further improved including by removing multiple required signatures.

The earlier “LEED Project Registration Agreement” and “LEED Project Certification Agreement” have both been replaced in v4 with a new single Certification Agreement, accessed at the time of project registration through LEED Online after inputting the project details.

Simply stated, the Certification Agreement is “the” contract that governs certification of a project under the LEED program. The contract is with the Green Building Certification Institute, which “administers the Program and confers precertifcation and LEED Certification under license from the U.S. Green Building Council.” There is now one Agreement applicable across all rating systems, including new construction, the Volume Program, Campus Projects and soon to be v4 Homes.

This is not an attempt to summarize that 14 page almost 8,000 word Agreement (readers of this blog can read the contract at the link above); all participating with LEED should read the online contract carefully and have it reviewed by counsel. This article simply highlights some of the important improvements from the earlier forms (which forms will continue to be used in LEED 2009 and earlier version projects as they are registered and certified).

The new Agreement expends much verbiage on who is the “Owner” beginning in the first paragraph and introduces the new Confirmation of Primary Owner’s Authority form. It also highlights the need for projects, where the owner is not completing the LEED registration process itself to continue to utilize the existing Confirmation of Agent’s Authority form.

The most significant change is that under prior agreements disputes were resolved through litigation in federal court where this Agreement contains a provision requiring the parties seek to resolve all disputes “through open and good faith discussions in the first instance” and if not resolved, “by mediation, administered by the American Arbitration Association (“AAA”) under its Mediation Rules” and if settlement is not then reached, by binding arbitration administered by the AAA.

Another material change, also within the context of dispute resolution, is that for the first time, the prevailing party is entitled to “all costs and expenses of any Arbitration, including reasonable attorneys’ fees and expenses.” These changes in dispute resolution serve to level the playing field in favor of project owners.

While not likely of great import to most, some may be troubled that, “GBCI reserves the right to increase the Fees by no more than twenty seven percent (27%) per calendar year.” An owner may elect to pay all fees in advance and not risk a future increase.

An owner may at its sole election opt out of pursuing LEED certification and “may terminate this Agreement in whole or in part at anytime.”

The final contract provision eliminates the need to upload hard copy signatures when it provides that selecting the button marked “I AGREE” is your signature.

There is no doubt this Agreement is new and improved from the perspective of a project owner, but be aware, it continues to reflect the unequal bargaining power of the parties and is heavily weighted to protect USGBC and GBCI (including requiring owners to broadly indemnify USGBC).

That observed, as a sustainability and green building attorney my personal favorite new provision is the very first sentence that includes the warning, “YOU REPRESENT THAT YOU HAVE CONSULTED WITH AN ATTORNEY ABOUT YOUR RIGHTS AND OBLIGATIONS HEREUNDER”. You may give me a call at any time.

Maryland Sidesteps LEED in Favor of the IgCC

By Stuart Kaplow on May 11, 2014 Posted in LEED

House Bill 207, approved unanimously in both the Maryland House and Senate and expected to be signed by Governor Martin O’Malley this Thursday, May 15, 2014 broadens the definition of a “high performance building” to include any building that complies with a nationally recognized and accepted green building code, guideline, or standard that is reviewed and recommended by the Maryland Green Building Council and approved by the Secretaries of Budget and Management and General Services.

At first blush that language sounds innocuous, however the bill portends fewer, if any, Maryland state and local government projects will be LEED certified in the future, in favor of projects built to the International Green Construction Code.

By way of background, existing law has required since 2008 that most new or renovated government buildings and new school buildings be constructed as high performance buildings. High performance building is defined as one that “meets or exceeds the U.S. Green Building Council’s (USGBC) Leadership in Energy and Environmental Design (LEED) criteria for a silver rating,” a definition that has existed in state law since 2001.

That law has both resulted in significant government LEED building and been a driver for private sector LEED construction. In point of fact, only weeks ago USGBC announced that Maryland ranked #2 in the Top 10 States in the Nation for LEED Green Building.

But as I wrote in a blog post in November in anticipation of this legislation, IgCC About To Get A Boost In Maryland, the USGBC is falling out of favor in this very green state, including with school construction interests and others seeking state capital budget funding that are concerned LEED v4 strayed too far from high performance building. Those ‘post LEED’ forces combined to drive HB 207. And such is instructive, because those favoring this sidestepping of LEED were not lumber interests or “plastics” industry interests that have been involved in anti-LEED legislation in other states. In Maryland with a mature environmental industrial complex, buttressed by some 114 green building laws and codes, this Department of General Services bill was supported by local pro green building players.

The state will adopt a version of the 2012 IgCC for its specific use for government building before the new law goes into effect on October 1, 2014.

While not expressly authorized by the bill, the Collaborative for High Performance Schools (“CHIPS”) rating system which is gaining momentum around the country, will all but certainly be tested in Maryland in future school construction.

It is also expected that this year Baltimore City and Montgomery County, Maryland will each adopt a local IgCC enactment as a voluntary alternative to existing mandatory LEED centric green building laws that impact all private construction.

Maryland was one of the first states to incentivize green building in 2001 with a tax credit tied to LEED. Today, Maryland is joining Washington DC and Virginia leading a nationwide trend sidestepping exclusively LEED centric green building laws. All of this should be good for green building, good for Maryland, and very good for the planet.

The 2015 IgCC Takes a Major Step Forward

By Stuart Kaplow on May 7, 2014 Posted in Codes and Regulations, Construction

We alerted readers of this blog in a post some days ago, All the Cool Green Building People will be in Memphis Next Week. And some thought we oversold the story. But when Britain’s Prince William and Prince Harry arrived in Memphis last week for the wedding of Elizabeth “Lizzy” Wilson and Guy Pelly, we felt vindicated.

And while the paparazzi did not take our picture after we ate at Rendezvou, last Thursday night the restaurant was full of code folks having completed a day of Committee Action Hearings on the 2015 International Green Construction Code.

More than 900 changes to the 2012 IgCC were proposed grouped and ordered in a big code effort into just over 500 “proposed changes” publicly discussed and voted on over 7 days of hearings. Changes ranged from clarifying confusing text to updating provisions to reflect the new and best science.

Much of the chatter among the hundreds of participants in the hearings was about “super habitable” buildings and questioning the efficacy of the proposed emphasis on materials, including EPDs, as being not supported by science and as straying too far from green building and any articulable benefit to building occupants.

With hundreds in the room, many representing industry interests, the ICC update of the Green Code is a voluntary consensus based process with openness, balance of interests, due process, an appeal process, and consensus. It is not perfect and at this hearing the concrete industries united to oppose the asphalt pavement industry’s attempt to allow asphalt pavement to be used under the IgCC. The existing code all but bans asphalt pavement in favor of concrete products (i.e., the 2012 IgCC mandates heat island mitigation for not less than 50% of site hardscape with material as having a solar reflectance value of not less than 0.30, including not even allowing the use of permeable asphalt); making the IgCC an outlier as the only green standard, rating system or code to effectively ban the use of asphalt pavement.

With the hearings now concluded the Report of the Committee Action Hearings (to accept, reject or accept with modifications each IgCC change proposal) will be posted online on June 6, 2014. A public comment period will be conducted until July 16, 2014, where any member of the public may provide written comments. And this is where the new IgCC gets real.

Public Comment Hearings will be held in Ft. Lauderdale between October 1 and 7, 2014. Voting on the final action on the public comments will be done by governmental ICC members both at the hearing and for a two week period afterward with the online cdpACCESS.

The resultant document, the 2015 IgCC will be released for use in the calendar year 2015 offering a more robust and greener Green Construction Code that will be a real alternative to LEED and Green Globes, with broader and wider adoption across the country.

The IgCC is moving forward. On June 6, with the posting online of the then current version, the public will have more than a month to comment. Don’t be left behind. Review the proposal and comment.

Photo credit Reuters

FTC is Pursuing Green Marketing Claims

By Stuart Kaplow on May 4, 2014 Posted in Federal

The Federal Trade Commission announced last Friday that it approved a final order settling charges that American Plastic Manufacturing, Inc. made misleading and unsubstantiated biodegradability claims for its plastic products. The final order is the fourth resulting from a set of “green” marketing cases the FTC first announced in October, 2013.

The FTC alleged that APM advertised its plastic shopping bags on its website as biodegradable.

Under the FTC’s final order, APM is prohibited from making biodegradability claims unless they are true and supported by competent and reliable scientific evidence. The company must have evidence that the entire plastic product will completely decompose into elements found in nature within one year after customary disposal (defined as disposal in a landfill, incinerator, or recycling facility) before making any unqualified biodegradable claim.

In order to make biodegradability claims, the FTC takes the position that companies must state the time required for complete biodegradation in a landfill or the time to degrade in a disposal environment near where consumers who buy the product live. Alternatively, companies may state the rate and extent of degradation in a landfill or other disposal facility accompanied by an additional disclosure that the stated rate and extent do not mean that the product will continue to decompose or decompose completely. This is a high bar.

In another FTC green marketing case, N.E.W. Plastics Corp., of Wisconsin, has agreed to stop making allegedly unsubstantiated claims about the recycled content and recyclability of two of its brands of ‘plastic lumber’. The company claimed that its “Evolve products are made from 90 percent or more recycled content”, and that its “Trimax products are made from mostly post-consumer recycled content”.

The fake plastic lumber products were used as trim and decorative moldings, including in green buildings, as well as for outdoor decking.

The proposed consent order prohibits N.E.W. from making any statements about the recycled content, post-consumer recycled content, or environmental benefits of any product or package unless they are true, not misleading, and are substantiated by competent and reliable evidence, which for some claims must be scientific evidence.

In an earlier blog post I wrote that the FTC announced in October, 2013 it would begin to ramp up enforcement of environmental claims. It is clearly doing so. The FTC does provide guidance to businesses on environmental claims, including its interpretations of federal law that at times fly in the face of the free flow of commercial information, in its Green Guides. This law firm regularly assists businesses with green claims that can be made with certainty.

The Green Guides and much more will be the subject of the educational session I am presenting tomorrow morning, Tuesday, May 6 at 8:00 a.m., with Ida Cheinman for USGBC Maryland in Baltimore. There is still time to register today for Marketing Green Building: A Competitive Advantage Without Greenwash.

Marijuana Smoking is Allowed in LEED Buildings

By Stuart Kaplow on April 30, 2014 Posted in LEED, Legal

Today 20 states allow medical marijuana use and Colorado and Washington state have laws allowing recreational marijuana use. Colorado started allowing recreational marijuana use in January and Washington is expected to allow sales this summer.

While there are a patchwork of current laws for legal marijuana that vary from state to state, and legislation is pending in at least 6 states, it is clear that there has been a major shift in attitudes across the country to now allow marijuana smoking for medical and even recreational purposes.

Those laws trump and supersede most, if not nearly all, “no smoking” laws. However, LEED certified buildings generally prohibit smoking, irrespective of law, and that has led to inquiries about whether marijuana smoking is allowed in a LEED building?

The answer is simply, yes, you can smoke marijuana in a LEED certified building assuming it is otherwise legally permissible in the jurisdiction to do so (but, see the disclaimer below about federal criminal laws).

Many are aware LEED includes the Indoor Environmental Quality Prerequisite 2, “Environmental Tobacco Smoke (ETS) Control”. The rating system language explains, “Intent. To prevent or minimize exposure of building occupants, indoor surfaces and ventilation air distribution systems to environmental tobacco smoke (ETS).” ETS is arguably what is commonly described as secondhand smoke from the burning end of tobacco cigarettes, pipes, and cigars, including as exhaled by smokers.

And LEED offers options to comply with that prerequisite. Option 1 is,

Prohibit smoking in the building. Prohibit on-property smoking within 25 feet (8 meters) of entries, outdoor air intakes and operable windows. Provide signage to allow smoking in designated areas, prohibit smoking in designated areas or prohibit smoking on the entire property.

LEED offers a second option with two alternatives: the first for non-residential buildings prohibiting smoking in the building except in designated smoking areas; and the second alternative for residential and hospitality projects prohibiting smoking in all common areas of the building.

But none of that applies to marijuana. By its express language, beginning with the title, “Environmental Tobacco Smoke (ETS) Control” this prerequisite is about tobacco smoke. The language is clear and precise, and unambiguous that it does not apply to marijuana smoke.

It important that when creating a LEED required smoking policy and signage that both make clear it is tobacco smoking that is being prohibited. More than one Colorado landlord is seeking advantage in the marketplace by advertising a “marijuana friendly” building. Many LEED smoking policies, certainly in the 20 states allow medical marijuana use, should now be revised to articulate that marijuana smoking for medical and even recreational purposes is permitted.

And while, of course, the author has no personal knowledge, today increasing quantities of marijuana is ingested through vaporizers versus rolled joints, not to mention in edibles from brownies to granola bars and butter to chocolate, such that concern over secondhand smoke from marijuana is lessening.

On a related matter there is at least one medical marijuana cultivation and dispensary under construction in Massachusetts pursuing LEED certification.

While for many buildings it is likely necessary and proper that existing LEED smoking policies now be revised to articulate that marijuana smoking for medical and even recreational purposes is permitted; it is certainly important from this point forward that when creating a LEED smoking policy and signage that both make clear it is tobacco smoking that is being prohibited.

“Federal and state laws [should] be changed to no longer make it a crime to possess marijuana for private use.” – Richard M. Nixon, 1972. Despite that statement, be aware that possessing, using, distributing and selling marijuana are all federal crimes and may be state crimes. Beyond the general disclaimer below about the purposes of the blog, this blog post is not intended to give you criminal law advice or for that matter, any legal advice.

Photo Credit United Kingdom Cannabis Social Clubs

All the Cool Green Building People will be in Memphis Next Week

By Stuart Kaplow on April 23, 2014 Posted in Codes and Regulations, Construction, LEED

The process of updating the 2012 International Green Construction Code moves to Memphis next week.

The IgCC provides model code language, to be adopted by local governments as an overlay to existing codes to establish “baseline regulations for new and existing buildings related to energy conservation, water efficiency, building owner responsibilities, site impacts, building waste, and materials” and other matters.

It is surprising to some that adoption of the IgCC across the country has not been faster and broader. It may be that mandatory green building codes are controversial and fly in the face on the tenets of green building as voluntary stewardship of the Earth; which would explain the large market share that LEED has, as a voluntary third party green building rating system. But a better explanation may be that the IgCC needs to find its place among standards, rating systems and codes; which is a balancing act between the hard left environmental extremists and the conservative engineering based code officials? And that is what is going to happen in Memphis.

The ICC’s new cloud based code development system “cdpACCESS” will be used for the first time for offsite comments to the 2015 IgCC, but the action will be on the ground in Memphis.

Proposed IgCC changes submitted have been posted online since March 10th for public review. The changes will be heard at two Committee Action Hearings conducted April 27th through May 4th in Memphis. The hearings will also be webcast live.

There are more than 900 changes proposed ranging from clarifying confusing text to updating requirements to reflect the best science evolved since 2012. By way of example, one positive change is GC 159-14, being advanced by the National Asphalt Pavement Association, to revise IgCC section 408.2.4. Pervious and Permeable Pavement, to now refer only to permeable pavements defined as having an air void of at least 15% versus the current measure of a percolation rate of 2 gallons per minute per square foot. Recent research describes how permeable pavements can not only manage stormwater but also mitigate urban heat island effect due to the high air void nature.

NAPA is also proposing GC 156-14 to delete IgCC section 408.2.1 describing site hardscape material as having a solar reflectance value of not less than 0.30. This is significant because the IgCC mandates heat island mitigation for not less than 50% of site hardscape, including that the hardscape materials meet that requirement. Given the growing body of evidence of unintended consequences associated with reflective pavements and the potential negative impact they may have on energy usage, it is time ICC members accept the code may have gotten ahead of the science and be prepared to eliminate provision.

The results of the hearing (to accept, reject or accept with modifications) each IgCC change proposal, will be posted online. A public comment period will then be conducted until July 16, 2014, where any member of the public may provide written comments.

The resulting document, the 2015 IgCC will be released for use in the calendar year 2015 and will offer a more robust and greener Green Construction Code.

Zoning Laws Stop Wind

By Stuart Kaplow on April 22, 2014 Posted in Sustainability

The application of zoning laws, many of which date to the 1920s are bringing alternative energy projects to a halt in 2014.

In a recent New York case, the Town of Allegany issued a special use permit to a landowner on July 11, 2011, allowing it to construct a wind farm. The Town notified the landowner that its permit would “expire if construction has not commenced within a year of approval.” On June 11, 2012, the Town extended the deadline “until the earlier of” one year or 90 days after the “conclusion of the” lawsuit commenced against the Town by a citizens’ group, Concerned Citizens of Cattaraugus County, which opposed the project.

By letter dated August 3, 2012, petitioner advised the Town that it was “considering use of alternate turbine models” for the project. Petitioner thereafter requested a second extension of the special use permit, but the Planning Board denied that request at its October 15, 2012 meeting.

The Supreme Court of the State of New York, in Allegany Wind LLC v Planning Board of Allegany, 2014 WL 1099718 (NYAD 4 Dep. 3/21/2014), concluded that, contrary to the landowner’s contention, there was a material change in circumstances since the special use permit had been issued, and that the Planning Board’s refusal to extend the special use permit for a second time was not arbitrary or capricious. When the special use permit was granted, the landowner was going to use Nordex N1000 turbines. It was undisputed that, by the time landowner requested its second extension of the permit, it proposed using alternate turbine models because that model was no longer being produced and less expensive more energy producing turbines had become available during the pendency of the lawsuit. The Town determined that a change in turbine models would constitute a change in circumstances sufficient to warrant reconsideration of the project.

The landowner also argued the time period should be tolled because, until the litigation was resolved, it could not obtain necessary financing and could not commence construction of the wind farm. The high court rejected that further contention that the expiration date of its special use permit was tolled during the pendency of the lawsuit.

Most zoning laws, including those in New York, do not provide for or otherwise recognize an equitable doctrine that would allow for the tolling of the time period of zoning approvals. Such is a bar to large and expensive projects that require special zoning approvals, as many alternative energy projects do. Interestingly, most Dinasaur electric utilities’ projects ‘are permitted as of right’ in all zoning districts, while zoning laws require special exceptions or special use permits or the like for many alternative energy projects.

Historic zoning laws need to be brought into the contemporary era. Electricity in the 1920s, when many of today’s zoning laws were written, powered the Edison light bulb. Today, that light bulb is illegal and electrons drive our socio-technological trends powering the information age. Modern alternative energy projects must not be allowed to be halted by old fashioned zoning laws.

Why You Care About the Revision to OMB Circular A-119?

By Stuart Kaplow on April 15, 2014 Posted in Federal, LEED

The U.S. Office of Management and Budget is seeking comments, no later than May 12, 2014, on proposed revisions to Circular A-119, “Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities.”

“Green Globes and LEED are voluntary, consensus based standards” according to Kevin Kampschroer, director of the office of federal high-performance green buildings at the U.S. General Services Administration, referring to the March 2012 U.S. Department of Energy, Green Building Certification System Review.

That is, both of those green building programs are the very type of “voluntary consensus standards” that will be impacted by the revised Circular A-119.

By way of background, in the National Technology Transfer and Advancement Act of 1995, Congress provided that federal agencies “shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards means as a to carry out policy objectives or activities,” except when such use “is inconsistent with applicable law or otherwise impractical.” In response to the enactment of the 1995 law, OMB prepared Circular A-119. In light of changes that have taken place in the world of regulation, standards, and conformity assessment since the Circular was last revised in 1998, it is now being updated.

The revised Circular A-119 proposes to “maintain a strong preference for using voluntary consensus standards in Federal regulation and procurement.”

The reliance on nongovernment standards is not without controversy. That is, created by a particular interest group (arguably a small group of people with shared interests that is exclusive of most people) for a limited purpose at a specific time, be it an ISO, ANSI, ASHRAE or other, standards offer efficacy to a process or product, but can be problematic when the limits of the standard are not appreciated.

Within the green building coterie much is made of the fact that the Green Building Initiative is an ANSI accredited Standards Developing Organization and that its Green Globes 2010 rating system for new construction was ANSI approved. The LEED ratings systems do not pursue ANSI approval and the U.S. Green Building Council points to the fact that “The Foundations of LEED” allows for a flexible and faster adoption of each new version of LEED than the ANSI Essential Requirements permit. Additionally, the ANSI process doesn’t contemplate nor accommodate the participation of thousands of people in a voting consensus body. USGBC expresses pride in offering all its members the right to participate in and vote for each proposed version of LEED.

That ‘inside baseball’ debate within the green building community over the relative merits of ANSI is apparently lost on the federal government that in the 2012 DOE study (described above) determined, Green Globes 2010 and LEED 2009 both contain “the attributes of a voluntary consensus standards body defined in OMB Circular A-119: openness, balance of interest, due process, an appeal process, and consensus.”

Much of the controversy over the emergent Environmental Product Declarations is that most are based on dated European ISO standards originally conceived for other purposes.

Given that the federal government is the largest owner of buildings in North America and is also the owner of more certified green buildings than anyone else, it is of critical importance that any revision to Circular A-119 continue to allow agencies to recognize LEED and Green Globes as voluntary consensus standards.

All are encouraged to review the Federal Register notice and comment here.

The Single Most Significant Change in LEED

By Stuart Kaplow on April 9, 2014 Posted in LEED

By Jacqueline Lusk and Stuart Kaplow

The newest version of LEED, with the designation LEED v4 is not simply another step in the continuous improvement of the third party verified green building rating system, and while not paradigm shift equal to a Neil Armstrong “giant leap for mankind,” LEED v4 is an all but an entirely new green building certification program.

Among the many modifications from the previous version, LEED 2009, there is a single change that is the most significant, bar none.

The change is buried deep within the LEED Operations and Maintenance Existing Buildings program and is not even in the printed reference guide.

The quick explanation is the change is an alternative method of satisfying the prerequisite that an existing building achieve an Energy Star Portfolio Manager tool energy performance rating of at least 75. Prior to the availability of this alternative compliance path, an existing building that could not achieve an Energy Star rating of 75 was excluded from participating in LEED.

There are nearly 4.9 million existing non-residential buildings in the U.S. If green building is going to save the planet, the huge impact that existing buildings have on the natural environment must be addressed.

Launched in 2004, as of February 1, 2014, more than 2,700 existing buildings are LEED Existing Building –Operations and Maintenance certified, and more than 6,500 buildings are registered pursuing certification. And while that is a respectable number, it is also a ridiculously small percentage of those nearly 4.9 million existing buildings.

As a practical matter the LEED EB-OM Minimum Energy Performance prerequisite is the gatekeeper determining if an existing building can even be a LEED candidate. LEED v4 requires a minimum Energy Star rating of 75. (This is more significantly stringent than LEED 2009 requiring an Energy Star score of 69.) An Energy Star score of 75 means the building is performing better than 75% of similar buildings nationwide. The prerequisite of a minimum score of 75 arguably excludes 75% of all existing buildings from participating in LEED.

David Gottfried, the cofounder of U.S. Green Building Council has often been quoted saying, “USGBC decided that the minimum bar for the ‘L’ level for LEED [i.e., L for Leadership] certification would begin with the top 25% of buildings.” And the very real application of that philosophy is that the maximum potential market for LEED is 25% of existing buildings (as limited by an Energy Star score of 75).

Even with that cap LEED EB-OM certified more than half of all the domestic floor area in the LEED rating system in 2013. So, any change to EB-OM is of paramount import to LEED itself, not to mention the implications for the millions of existing buildings.

In LEED v4, the “Existing Building – Operations and Maintenance” rating system was renamed “Operations and Maintenance: Existing Buildings” and is known as O+M: EB.

LEED O+M: EB encourages owners and operators of existing buildings to implement sustainable practices and reduce the environmental impacts of their buildings, while addressing the major aspects of ongoing building operations, including: exterior building site maintenance programs, water and energy use, environmentally preferred products and practices for cleaning and alterations, sustainable purchasing policies, waste stream management, and ongoing indoor environmental quality. LEED O+M: EB is popular with building owners concerned about costs because it identifies and rewards current best practices and provides an outline for uncovering operating inefficiencies.

The monumental change in O+M: EB is there is an alternative for satisfying the EAp2 prerequisite that an existing building achieve an Energy Star rating of at least 75. There is a pilot credit known as “EAp2 Energy Jumpstart” which is that alternative compliance path.

Existing building that reduce energy consumption by 20% are now LEED eligible. The pilot credit text provides,

Demonstrate energy efficiency improvement, measured by source energy use intensity (EUI), of at least 20%, normalized for climate and building use. The percent reduction is determined by the project building’s energy reduction over the most recent 12 months, and data from three contiguous years of the previous five represents the baseline period. Buildings without four consecutive years of energy data are ineligible.

That is, a building that improves its Energy Star score by at least 20% is LEED O+M: EB eligible! And that is huge.

There are a few limitations on use. This pilot alternative compliance path is only available to projects from Energy Star eligible building types. Today, when Energy Star rating are available for building types from bank branches and barracks to wastewater treatment plants and warehouses, such is not a significant limitation. And there is a 500 project cap on participation in this pilot credit. Which is also not a significant bar to entry when it does not appear any project has yet been certified using the pilot credit.

This is a pilot credit and will no doubt be revised over time, including providing other options for providing energy consumption data to USGBC.

By way of background, USGBC did test this idea. The little used (and still available for LEED 2009 EB:OM buildings) Pilot Credit 67, was the precursor to Energy Jumpstart, offers the same “alternative compliance path requiring projects to achieve an energy improvement of 20% over a 12-month period.”

Available for use now, the single most significant change to LEED O+M: EB, and to the entire LEED v4 green building certification program, is the alternative method of satisfying the prerequisite that an existing building achieve an Energy Star rating of at least 75. LEED certification is now possible for the over 3.6 million buildings (of the nearly 4.9 million existing non-residential buildings in the U.S.) that would otherwise be excluded.

The new pilot credit provides expanded opportunities for USGBC.

Pilot credit EAp2 Energy Jumpstart may be “one small step” for LEED, but it is “a giant leap” for reducing energy use on the planet.

Jacqueline Lusk is a sustainability consultant at Lorax Partnerships and can be reached at jackie@loraxllc.com. Stuart Kaplow is a sustainability and green building attorney and can be reached at skaplow@stuartkaplow.com.