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 non-government 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.

Article by Stuart Kaplow, appearing courtesy Green Building Law Update.



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Stuart Kaplow is an environmental attorney and the principal at the law firm that bears his name, Stuart D. Kaplow, P.A.

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