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green building

International Green Construction Code Now Mandatory For All Building in Baltimore

International Green Construction Code Now Mandatory For All Building in Baltimore

written by Stuart Kaplow

This week, the Baltimore City Council adopted the International Green Construction Code 2012 as an overlay to the City’s building, fire and related codes.

Baltimore, the 26th most populous city in the country, was among the first jurisdictions, in 2007 to mandate that all “newly constructed, extensively modified non-residential buildings” .. “achieve a Silver rating in the appropriate LEED rating system or satisfy the Baltimore City Green Building Standard” (a LEED-like local enactment). That mandatory law had some efficacy with new construction but almost no market impact on renovations as building owners strived to avoid the enactment.

Council Bill 14-0413 repeals that existing law and commencing April 1, 2015 expands its scope and breadth with a new Baltimore Green Construction Code to apply to all new construction and “all repairs, additions, or alterations to a structure and all changes of occupancy” with very few exceptions (.. one or two family dwellings, etc.).

Significantly, the new Green Code does not apply to: structures that achieve a LEED Silver rating; residential and mixed use buildings of five stories or more that comply with the ICC 700 at the Silver performance level for energy and Bronze level for other categories; and, to structures that comply with ASHRAE standard 189.1. The new enactment allows the Code official to accept third party certification of compliance with these alternative compliance paths.

There is an exemption process where the Code official may, in unusual circumstances and upon a showing of good cause, grant an exemption from any specific requirement of the Code.

Sensitive that the port of Baltimore, founded in 1729, is an already built-out older industrial city that has shifted to a service economy, the new Green Code alters the form IgCC with 32 pages of edits, including that it requires “at least 50% of the total building materials used” in a building of 25,000 square feet or greater, must be recycled, recyclable, bio-based or indigenous (within 500 miles), where the form code threshold is not less than 55% of buildings of all sizes.

And the enactment corrects some of the industry bias in the form IgCC when, in pursuit of heat island effect mitigation, Baltimore permits the use of “porous asphalt pavement” in addition to pervious concrete. The form code all but bans asphalt pavement in favor of concrete products (i.e., when the IgCC 2012 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 [.. think light colored concrete and not dark colored asphalt]).

In a first for any American city, buildings are now mandated to have renewable energy systems.

Both with the sunsetting of the Baltimore City Green Building Standard (the green standard that most residential projects pursued in recent years) and that this new Green Code applies to all repairs and renovations (not subject to the prior law), whichever compliance path a builder pursues, will be a sea-change.

While there are co-sponsors, the bill is all but the singular and Herculean effort of Councilman James Kraft. It is rare that a code enactment is not an executive branch bill. And the Councilman’s commitment to the environment is further evidenced by the fact that last evening the City Council also had before it his bill to ban plastic bags.

As progressive as this bill is, it should not be lost that Baltimore is representative of a very limited number of jurisdictions mandating new construction and renovation of both private and public buildings must be green. After the 2014 mid-term elections, many of today’s newly elected conservatives believe that a voluntary, non-mandatory approach to environmental protection is the best hope for stewardship of our planet. It is that same belief that has led to the broad brand and wide market share acceptance of LEED as a voluntary green building rating system. But Baltimore has had a mandate on the books since 2007, so, while there are not 50 shades of green, with alternative compliance paths for achieving green building, this bill is being viewed favorably.



November 19, 2014 0 comment
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Enterprise Green Communities Criteria Being Updated

Enterprise Green Communities Criteria Being Updated

written by Stuart Kaplow

In 2015 the use of LEED v4 will become mandatory, a new 2015 International Green Construction Code will be available, an updated ASHRAE 189.1 will be published, the new ICC 700 National Green Building Standard will be approved, and there will be a 2015 Enterprise Green Communities Criteria.

In the arena of green building standards, green rating systems and green codes among the widely respected residential rating systems is the Enterprise Green Communities Criteria.

While the Criteria was developed by Enterprise to “provide a clear, cost-effective framework for all affordable housing development types in any location in the country, including new construction and rehabilitation in multifamily as well as single-family buildings,” the Criteria are used in more than just affordable housing.

The current Enterprise Green Communities Criteria, adopted in 2011, are grouped into the following eight categories: 1. Integrative Design, 2. Location + Neighborhood Fabric, 3. Site Improvements, 4. Water Conservation, 5. Energy Efficiency, 6. Materials Beneficial to the Environment, 7. Healthy Living Environment, and 8. Operations + Maintenance, which are not dissimilar from LEED for Homes.

All project types (single family, low rise multifamily, and mid/ high-rise multifamily) and construction types (New Construction, Moderate Rehab, and Substantial Rehab) use that set of Criteria.

There is only one level of Enterprise Green Communities Certification awarded. To achieve certification, projects must achieve compliance with the Criteria mandatory measures applicable to that construction type. Additionally, New Construction projects must achieve 35 optional points and Rehab projects must achieve 30 optional points.

Enterprise Green Communities has certified more than 30,000 homes to date (as compared to more than 132,000 registered with 50,000 certified under the LEED for Homes rating system). Also significantly, the Criteria have been adopted by more than 20 states as a mandatory requirement for allocation of Low Income Housing Tax Credits, a Federal program that finances roughly 90% of all affordable housing production in the U.S. So, the revision of the Criteria is of great import.

There are two primary opportunities where you can engage with the 2015 Criteria Development Process: First, Enterprise community partners local market offices are currently collecting feedback during the “Local Developer Comment Period” through third quarter 2014. And then, after the efforts of several working groups, Enterprise Green Communities will welcome comments on a draft version of the 2015 Criteria during their public comment period late in the fourth quarter of 2014.

For more information about the 2015 Green Communities revisions process email greencommunities@enterprisecommunity.org

2015 will be a year of great change in green building standards, rating systems and codes. Participating now in the development of the 2015 Enterprise Green Communities Criteria is an ideal way to prepare for what is to come.



August 15, 2014 1 comment
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Litigation Over First Ever LEED Platinum Building Tarnishes Green Building

Litigation Over First Ever LEED Platinum Building Tarnishes Green Building

written by Stuart Kaplow

Last week, a federal appeals court brought back from the dead, a more than $6 Million lawsuit filed over materials supplied in 2000 for the first ever LEED certified Platinum building. Despite that the unpublished opinion is not binding precedent, it will have a chilling effect on green building and in particular on the selection of new or untried materials and products that are the keystone of many sustainable projects.

The Chesapeake Bay Foundation v. Weyerhaeuser Company arose from the construction in 1999 of the Chesapeake Bay Foundation’s headquarters in Annapolis, Maryland. SmithGroup designed the building and Clark Construction oversaw its construction. SmithGroup’s “green” design called for exposed structural wood members outside the building envelope, including some that penetrated the facade. Under a March 3, 2000 purchase order that it entered into with Clark, Weyerhaeuser agreed to provide Parallam PSL columns and beams for use as the exposed wood members.

Parallams, which have a rough-hewn appearance, are manufactured by bonding together strips of wood. Its contract with Clark required Weyerhaeuser to treat the Parallams with the preservative PolyClear 2000, something then new and untried.

Water damage to the Parallams was observed during construction. Following final completion of construction in late December 2000, water began leaking through the Parallams into the building. In 2001 and 2002, the leakage was investigated by two outside consultants hired by Clark. A 2001 report by one of those consultants addressed to the Bay Foundation described that such water could cause deterioration or rot in the Parallams themselves if they were not properly treated with a wood preservative.

In a damning fact that may have had more to do with this court decision than the law, the Bay Foundation “… subsequently learned that the Parallams had not been treated with PolyClear 2000 as certified, that PolyClear 2000 was not in any event well suited to the job of preserving the Parallams, and that Weyerhaeuser had knowingly given false assurances to the contrary.”

The Bay Foundation initiated this case in state court on December 3, 2010 (i.e., 9 years, 11 months and some odd days after final completion) and the case was ultimately removed to the US District of Maryland. The complaint focused on the deterioration of the Parallams. According to the complaint, Weyerhaeuser breached its contract with Clark, owed common law indemnity and contribution to SmithGroup and Clark, and was liable to the Bay Foundation and SmithGroup for negligent misrepresentation and negligence.

The federal trial court, in awarding summary judgment to Weyerhaeuser, concluded that the plaintiffs’ state law claims were time-barred. Maryland’s statute of limitations provides that “[a] civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be commenced.” Maryland follows the discovery rule, which provides that “the cause of action accrues when the claimant in fact knew or reasonably should have known of the wrong.” And the trial court reasoned the 2001 report did just that.

But, the three judge panel of the Fourth Circuit Court of Appeals vacated the more than 2 year old order (that had dismissed the case) and remanded the case for further proceedings.

The federal appellate court said, “viewing the evidence in the light most favorable to the plaintiffs, a genuine dispute exists as to whether knowledge of the water infiltration problem would have put a reasonable person on notice that the Parallams were susceptible to premature deterioration and that their PolyClear 2000 treatment would not preserve them.”

This blog will continue to watch the saga that are these disputes and differences arising out of the first LEED Platinum certified building. And while only time will tell if this case will have a chilling effect on green building, it certainly will cause architects to give pause before specifying new or untried materials and products that are the keystone of many sustainable projects.



August 6, 2014 0 comment
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Where are America’s Greenest Buildings?

Where are America’s Greenest Buildings?

written by Elisa Wood

Ok, no surprise to see Washington, D.C. or San Francisco ranked high in a list of the cities with America’s greenest buildings. But Atlanta?

Georgia’s capital was the only southern state to make the top ten in the 2014 U.S. Clean Tech Leadership Index, released July 15 by Clean Edge. The cleantech research firm tracks the cleantech progress of the 50 largest metro areas and the 50 states.

“A good deal of Atlanta’s performance can be chalked up to the city’s green-building requirements, having passed an ordinance that all new city construction and major renovations must be Silver-LEED certified,” said Ron Pernick,  Clean Edge managing director.

Atlanta knocked out Milwaukee to take over the number ten spot in the green building ranking.

The South has been notoriously slow to pursue green technology. But Atlanta is different. This is not the first time the city made Clean Edge’s top 10 list.   It was number #8 in 2012, but then dropped to #12 in 2013, according to Pernick.

With the exception of Atlanta’s entry, the green building list showed little change over 2013. Clean Edge attributed the lack of change to the long lead times for new construction.

This year’s top spot went to Washington, D.C. , driven by efficiency efforts in federal buildings. Boston and Minneapolis also made the top ten. Otherwise  the usual suspects, Western cities, dominated the top slots: San Francisco, Denver, Portland, Seattle, San Diego, Sacramento. The five cities at the bottom of the green building list were: New Orleans, St. Louis, Memphis, Birmingham and Oklahoma City.

Why cities are important

Energy use by cities is gaining increased attention because of the dramatic population growth in metro areas. Cities accounted for almost all US population growth from 2012 to 2013.Worldwide, 7 out of 10 people are expected to live in cities by 2050, up from today’s 5 out 10.

Meanwhile, city leaders are increasingly pursuing green energy to attract jobs and meet carbon emissions goals. They are also looking for more control over their power supply, which is contributing to growing interest in microgrids and other forms of decentralized energy.

Green-Building-City-Ranking-e1405239060319

Green building was just one aspect of the green tech market analyzed in the detailed 49-page report. It also looked at electric vehicles, renewables, patents, policies, investment and other factors that signify progress by cities and states.

Across all categories, the top three cities were all in California: San Francisco, San Jose and San Diego, which jumped four places. California was the top state for the fifth consecutive year, with Massachusetts and Oregon repeating their #2 and #3 rankings from the 2013 state index. Vermont and Connecticut moved into the top 10 this year, while Hawaii and Minnesota dropped out.

For overall energy efficiency, California continued with the lowest annual per capita consumption, 6,704 kWh, followed closely by Hawaii. 6,767 kWh. The remaining top states were all in the Northeast, with the exception of #9 Alaska

Other significant findings from this year’s report are:

  • Colorado, Vermont, Oregon, and Washington each now exceed 100 LEED projects per million people for the first time
  • Eleven states now generate more than 10 percent of their electricity from non-hydro renewable energy sources, with two – Iowa and South Dakota – exceeding 25 percent.
  • U.S. solar installations climbed more than 40 percent year-over-year
  • Registrations of all-electric vehicles more than doubled from last year to nearly 220,000 nationwide
  • At least eight states now have more than 50 percent smart-meter market penetration; California leads with 70 percent.

“Net-zero building and energy-storage mandates and new public-private investment vehicles are just a few of the emerging policies that are dramatically shifting the energy landscape,” said Clint Wilder, Clean Edge senior editor. “While there have been some regional attacks against cleantech supportive policies, such as net metering and renewable portfolio standards, for the most part, the clean-tech industry and its allies have successfully fought off such efforts.”

Issued July 15, the 2014 U.S. Clean Tech Leadership Index is available here.



July 16, 2014 3 comments
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Six World Cup Stadiums Achieve LEED Certification from U.S. Green Building Council

Six World Cup Stadiums Achieve LEED Certification from U.S. Green Building Council

written by

Brazil’s global leadership position in high-performing green buildings has been reaffirmed further with the U.S. Green Building Council awarding LEED certification for six of the country’s World Cup stadiums. The Council, in conjunction with the 2014 FIFA World Cup in Brazil, has announced this award, which includes South America’s largest stadium, Maracana in Rio de Janeiro, which will host the World Cup final game.

Both FIFA and the Brazilian government have demonstrated exemplary leadership and commitment to mitigating the environmental impact of the World Cup facilities, and for using the occasion to showcase the benefits of sustainable construction before the global community. In addition to the stadium in Maracana, which will also serve as a key venue for the Rio 2016 Olympic Games, the other LEED-certified stadiums for 2014 FIFA World Cup include Castelao Arena in Fortaleza, Arena Fonte Nova in Salvador, Mineirao in Belo Horizonte, Arena da Amazonia in Manaus and Arena Multiuso in Salvador.

Felipe Faria, managing director of Green Building Council, Brazil, said that the country is making history with these LEED stadiums. He pointed out that the Brazilian construction firm responsible for the certification of Maracana, Odebrecht, pushed the boundaries of sustainable innovation with Maracana, providing green features such as photovoltaic panels on the roof, rainwater reservoirs and selective collection for waste. The innovative green elements incorporated into these stadiums will significantly reduce the overall environmental impact of the games in Brazil.

Each of the World Cup stadiums that have won a LEED certification incorporates multiple sustainable features. For instance, Castelao Arena features a 67.6 percent reduction in drinkable consumption, a 12.7 percent reduction in annual energy consumption, and 97 percent of the project waste was diverted from the landfill. Arena Fonte Nova used 20 percent of its building materials made from recycled content and diverted 75 percent of the project’s construction waste from the landfill, in addition to purchasing 35 percent of its power from renewable sources such as solar and wind.

Brazil ranks among the world’s top five countries with LEED-certified projects, covering about three million square meters of LEED-certified space.

Article by Vikas Vij of Justmeans, appearing courtesy 3BL Media.

 



June 19, 2014 1 comment
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Can LEED Certification be Revoked?

Can LEED Certification be Revoked?

written by Stuart Kaplow

Revocation of LEED Certification is the title of the largest section within the U.S. Green Building Council’s Guide to LEED Certification: Commercial. The more than 2,800 word section consumes over 3 pages of the 7 page guide; far more words are dedicated to revocation than any other topic.

And one of the most common questions by owners considering LEED certification is, does USGBC revoke certification?

However, with all of that attention paid to the topic, Susan Dorn, the USGBC and GBCI General Counsel makes clear”

“While GBCI reserves the right to revoke and there have been a few occasions to review project certification, GBCI has never found a reason to proceed against certification after a review.”

That said, the Certification Challenge Policy may be initiated by GBCI or any third party within 18 months of a project’s certification (an owner is advised to maintain all associated records through that period).

The Certification Challenge Policy is in place to protect the integrity of the LEED certification program. In an incident of intentional misrepresentation which results in an inappropriate award of LEED certification, it is clear that GBCI will reduce the level of certification (e.g., from Gold to Silver) or revoke certification. But such would only happen after the multi level challenge process where an owner is afforded the right to actively participate in the process, including if an owner desires two hearings where witnesses may be called and cross examined, the first before a panel appointed by the GBCI President and the latter before the GBCI Board.

Despite that the policy expressly says it “is not meant to serve as a vehicle for the adjudication of disputes between outside parties” to make certain sub contractors, materialmen and the like do not file challenges, contract documents now commonly have confidentiality provisions, including expressly precluding any such communication.

Certification is a one time grant based upon a one time review, not dissimilar from issuance of a building permit. Only LEED for Existing Buildings: Operations & Maintenance has an expiration date requiring recertification every 5 years. USGBC just recently announced specifics for how projects are to do that.

However, GBCI does also retain the right to revoke certification from any project where it is “not provided with energy and water use data on an ongoing basis after LEED certification is conferred, as required.” To date, GBCI has not been pursuing that data.

Interesting, beyond the guide, the new GBCI Certification Agreement has new provisions expanding termination, including “this Agreement will automatically terminate in full .. upon the complete  or substantial demolition of a Project.” And in an effort to protect the LEED trademarks, “You agree if you use the Marks in any manner that could or does disparage, tarnish, or dilute the distinctive quality of the Marks, .. GBCI will have the right, at its sole option, to terminate this Agreement.”

We know with certainty that GBCI has never revoked a certification, but GBCI does not make public complaints that initiate the Challenge Policy. It is apparent challenges are infrequent. So, among the many issues associated with green building, to quote the Bob Marley lyric, “don’t worry” about revocation of LEED certification.



June 5, 2014 0 comment
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Green Building Bonds as a Game Changing New Source of Capital

Green Building Bonds as a Game Changing New Source of Capital

written by Stuart Kaplow

Regency Centers Corporation, a publicly traded REIT, completed the sale of $250 million of “green building bonds” on May 14, 2014.

Proceeds from these corporate bonds will be used to fund “eligible green building projects” including the acquisition, construction, development or redevelopment of projects that will pursue LEED certification.

Regency is an owner, operator, and developer of grocery anchored neighborhood and community shopping centers. With 332 retail properties, the REIT’s portfolio encompasses over 43.9 million square feet located throughout the United States. The REIT has 17 LEED registered projects since 2009 (7 of which are under construction) and 7 of which have been certified.

Regency described this source of capital as an opportunity to support an important market as investors seek more socially responsible investment options. This bond issuance also confirms Regency’s commitment and long term view on sustainability, as evidenced by its greengenuity© program, which is the REIT’s “commitment to do all that is practical to reduce its environmental impact in developing and operating shopping centers.”

Only days before the green building bond sale, on May 12, 2014, Regency was honored by the U.S. Department of Energy’s Better Buildings Alliance as an inaugural Green Lease Leader, leading the market by incorporating lease clauses that help overcome market barriers and align tenant and property owner interests to save energy in commercial buildings.

These green building bonds are more specifically 3.75% ten year senior unsecured notes due on June 15, 2024. The interest rate for these green building bonds was lower than other similar, but non-green building bonds offerings by REITs. While bond financing can have higher transaction costs than oft used mortgage backed loans, even in large dollar amounts as in this instance, it is significant that there was strong market demand for these unsecured bonds that drove the lower interest rates.

Green building bonds are a new investment vehicle in the U.S.  Until recently green bonds had been issued by the World Bank raising funds from investors to support World Bank lending for projects “that seek to mitigate climate change or help affected people adapt to it,” but while ‘green’ the bonds were not limited to ‘green building’. Since 2008, the World Bank has issued over $6 Billion in green bonds through 65 transactions and 17 currencies. And while several European business entities have issued similar green bonds, this transaction is the first in the U.S. exclusively for green building.

In November 2013, Bank of America issued the first ever U.S. bank green bond, but again its purpose was not limited to green building. The funds of the debenture are being used to finance renewable energy projects such as wind, solar and geothermal. Funds are also being used to finance energy efficiency projects such as lighting retrofits, district heating, co-generation, and building insulation in residential, commercial and public properties. The bank acted as underwriter on Regency’s deal.

As investors seek socially responsible investment options, green building bonds present a game changing opportunity for financing green building. Green building, which arguably offers higher value collateral and reduced risk, will be advantaged by bonds as a cheaper cost of capital all while saving the planet.

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



May 29, 2014 3 comments
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LEED v4 has a New and Improved Registration Contract

LEED v4 has a New and Improved Registration Contract

written by Stuart Kaplow

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).

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



May 22, 2014 0 comment
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Maryland Sidesteps LEED in Favor of the IgCC

Maryland Sidesteps LEED in Favor of the IgCC

written by Stuart Kaplow

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.

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



May 13, 2014 0 comment
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The 2015 IgCC Takes a Major Step Forward

The 2015 IgCC Takes a Major Step Forward

written by Stuart Kaplow

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 Rendezvous, 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.

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



May 9, 2014 0 comment
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What Does OMB Circular A-119 Mean to Green Building?

What Does OMB Circular A-119 Mean to Green Building?

written by Stuart Kaplow

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.



April 17, 2014 0 comment
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The Single Most Significant Change in LEED v4

The Single Most Significant Change in LEED v4

written by 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 v4 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.

Article by Jacqueline Lusk and Stuart Kaplow.  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.



April 11, 2014 1 comment
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LEED Reaches 3 Billion Certified Square Feet

LEED Reaches 3 Billion Certified Square Feet

written by Stuart Kaplow

The U.S. Green Building Council is about to announce that there are more than 3 Billion square feet of LEED certified commercial and institutional building.

Three Billion! That is a three followed by nine zeros or three thousand millions.

In a sense of scale, the Earth is only 4.67 Billion years old. The distance to the moon and back is less than 3 Billion feet (actually 2.66 Billion feet at apogee). It is very hard to comprehend how many 3 Billion is. The word Billion may not be as unfathomable as it once was, but 3 Billion square feet of LEED building is nothing less than a market transformation of real estate.

USGBC does acknowledge that 10.5 Billion square feet of construction space is “participating in LEED” and admittedly that number does add another zero.

It was publicly reported that “more than 2.8 Billion square feet” of building space was certified as of January 1, 2014. Then the organization released that 2.9 Billion square feet had been LEED certified, buried in a February 18, 2014 press release. And senior staff at USGBC have at least twice in public comments during the last week hinted that 3 Billion was approaching.

Many folks are aware that USGBC reports each and every day, more than 1.6 million square feet of space is certified using LEED.

Based solely upon the publicly available information it is clear USGBC is within hours of announcing that there are now more than 3 Billion square feet of LEED certified building (not including residential construction). That milestone is significant because LEED has transformed the way we construct buildings and holds the promise of green building mitigating the negative impacts that human activity has on the planet

Platitudes aside, what does that 3 Billion look like? USGBC tells us that as of February 1, 2014, LEED for New Construction & Major Renovations, the first rating system launched in 2000 has more than 19,000 buildings registered and nearly 10,000 certified. But today LEED is much more than new construction ..

LEED for Existing Buildings: Operations & Maintenance launched in 2004 has more than 6,500 registered buildings and nearly 2,700 have been certified. Significantly, the square footage of certified existing buildings has surpassed certified new construction on a cumulative basis. Last year the existing building rating system accounted for approximately 48% of total square footage certified.

LEED for Core & Shell launched in 2006 has more than 4,800 registered buildings and more than 1,450 have been certified.

LEED for Schools launched in 2007 has more than 1,400 registered buildings and more than 640 have been certified. But that number does not take into account projects with K-12 or Higher Education designated as the “space type” (e.g., LEED New Construction or others) which adds nearly 4,000 registered and more than 3,300 certified.

LEED for Retail: New Construction launched in 2010 has more than 550 registered buildings and more than 375 have been certified.

LEED for Healthcare launched in 2011 has more than 200 registered buildings and 2 have been certified. But that number does not take into account projects with healthcare designated as the “space type” which adds nearly 1,460 registered and more than 600 certified.

LEED for Commercial Interiors launched in 2004 has more than 4,100 registered projects and nearly 3,900 have been certified.

LEED for Retail: Commercial Interiors launched in 2010 has nearly 600 registered projects and nearly 300 have been certified.

The use of LEED internationally continues to grow rapidly. At the beginning of 2014, approximately 42% of all square footage pursuing LEED certification existed outside the U.S.

There is much to celebrate. LEED is now a global movement. But the impact of green building is still very small. For those who believe green building is the ideal means of mitigating the negative impacts that human activity has on the planet, it is time to work on the more than 7 Billion square feet registered but not yet certified.

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



April 3, 2014 0 comment
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LEED Law Intersects Miracle on 34th Street

LEED Law Intersects Miracle on 34th Street

written by CleanTechies.com Contributor

On March 18th the Tomkins County legislature enacted a new local law providing for up to a 10 year property tax abatement for construction achieving LEED certification.

Tomkins County, New York which includes the Ithaca area, was named for Daniel Tomkins. Tompkins may be best known because he was mentioned by Kris Kringle in the 1947 film Miracle on 34th Street. The onscreen line was incorrect, however, in that Kringle said Tompkins served as Vice President of the United States under John Quincy Adams when in fact he was elected on the ticket with James Monroe in 1816 (.. but you knew that).

In 2012, New York enacted NYCL RPT § 470 enabling local governments to exempt green buildings from real property taxes. For the exemption to apply, the local government must adopt an appropriate ordinance. The state statute describes new construction or improvements and that a project must meet the LEED, Green Globes, American National Standards Institute, or substantially equivalent green building certification standards.

Tomkins County, desiring “to encourage sustainable practices,” enacted Local Law A of 2014, effective on the date of enactment, providing for up to a 10 year property tax abatement for building achieving LEED certification (and the law does not include the other permissible green building rating systems). The amount of the exemption permitted varies by year and by the certification level achieved. LEED Silver, Gold and Platinum projects each are exempted from 100% of property taxes for 3 years and then taxes are re established with a sliding scale over 10 years, with the most generous tax incentives being awarded to Platinum building.

The maximum taxable value to be abated under the proposed law would be $100,000.

The local law was one of the ‘Top 22’ priority projects in the Cleaner Greener Southern Tier Plan, which was developed with input from community residents, businesses, and government to develop a regional sustainability plan to improve the economic and environmental health of the area.

The County is home to Cornell University, Ithaca College and Tomkins Cortland Community College, and these institutions have LEED buildings on campus, but there are no other LEED certified buildings in the Ithaca area.

A real property tax exemption is the most common local government incentive for Green building. In a recent survey of local government green building laws across 100 jurisdictions, overwhelmingly the most often granted incentive for a LEED certified building was an abatement of real property taxes.

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



March 24, 2014 0 comment
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