In an effort to foster student interest in law that touches on sustainable development, I reached out to my alma mater, New York Law School.  I credit two wonderful professors, Andrew Berman and David Schoenbrod, with cultivating my interest in green building.  Both professors are with the Center For Real Estate Studies at New York Law School, and one of the students in the program, Sonia Gutkin, took me up on an offer to write a post for the CGBB.

Sonia decided to cover the Air Conditioning Heating and Refrigeration Institute, et al. v. City of Albuquerque and BIAW, et al. v. Washington State Building Code Council cases.  Please find her great coverage below:

FEDERAL PREEMPTION ISSUES REMAIN UNRESOLVED

By Sonia Gutkin

Federal law regulates energy use and efficiency of some specific products used in buildings. States are not permitted to change that law – they are preempted unless a state or local code adheres to an exception provision. The law itself lays out very specific exceptions, described in more detail below.

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First ever mobile post, so excuse the brevity.
Mayor Lee will sign the proposed ordinance into law tomorrow.

WHERE: Adobe headquarters, 601 Townsend

WHEN: 10 A.M., Friday, February 18, 2011

I wish I could be there, but I’m out of town.
Congrats, San Francisco!

For our comprehensive analysis, please click here

A class action lawsuit against the USGBC has just been filed in Federal Court for the Southern District of New York (Gifford v. U.S. Green Building Council, docket number 10 CIV 7747).  Stephen Del Percio who does a great job publishing the Green Real Estate Law Journal and Green Buildings NYC broke this story (at least to me), and it’s going to have reverberations throughout the sustainable development community.

The complaint is brought on behalf of Henry Gifford, Gifford Fuel Saving, Inc., and others similarly situated.  In a nutshell, the plaintiffs allege the USGBC has engaged in deceptive trade practices, false advertising and anti-trust (among other things) by promoting the LEED system.  Plaintiffs further allege that because the LEED system does not live up to predicted and advertised energy savings, the USGBC defrauded municipalities and private entities.

The basis for the class action has been mentioned more than a few times in this blog and many others (including Mr. Del Percio’s).  Essentially, many green buildings are not performing as touted.  In some situations they are performing WORSE than buildings built to code.  The plaintiffs allege that because of these performance shortcomings, the USGBC commits anti-trust violations when it convinces municipalities to align their building codes to the USGBC’s LEED system.

While some LEED buildings are underperforming, the lawsuit is no slam-dunk for the Plaintiffs.  From a personal perspective, I find plaintiff’s complaint is a bit overly dramatic.  An effective complaint acknowledges and then refutes the defense’s potential arguments.  Here the plaintiffs’ complaint seems almost melodramatic in its representation of big bad USGBC.  In my opinion they lose some credibility there.

One of the biggest issues plaintiff will face is that occupants are often the primary reason green buildings underperform.  Many occupants don’t understand the new technology used in green buildings.  However, occupant “sabotage” is not the exclusive reason green buildings underperform.  Often it is also because the technology itself doesn’t work.  The USGBC is working on this issue, and Post-Occupancy Performance is a cornerstone of LEED 3.0.

No doubt there is a valid lawsuit here, and I anticipate this lawsuit will grow if more members of plaintiffs’ class sign on.   We’ll keep you updated as the lawsuit progresses.

Click here for a copy of the complaint.

The burning question everyone is asking: “What is the difference between the new California Building Code (CALGreen) and third party rating systems?”  GOOD NEWS – a very handy and thorough comparison chart has arrived!

The USGBC-NCC, along with AIA California Council, AIA-SF, StopWaste, City of San Francisco, Simon and Associates, and Build it Green formed the Green Building Codes Educational Collaborative.  This group created two matrixes (one for commercial space and one for residential space) as quick reference guides to compare CALGreen to third party systems.  The matrixes are as compact as one could hope.

The commercial matrix compares CALGreen (Commercial) with LEED BD+C.  The residential matrix compares CALGreen (residential) with (GreenPoint) Build it Green and LEED for Homes.

Please click below for the complete packet I just received Friday from the USGBC-NCC.  If you like the content of these documents, please consider a membership with at least one of the groups that helped make the documents possible.

Cover Letter

Commercial Buildings

Residential Buildings

(Full disclosure, I am a member of the USGBCC-NCC, but I receive no compensation for this, or any, post on the CGBB)

As always, it’s great to have Sarah Grilli contribute.  Here is her latest post:

Last week San Francisco Mayor Gavin Newsom proposed new legislation with co-sponsor City Supervisor Bevan Dufty focused on reducing the energy use of existing commercial buildings over 5,000 square feet. This new law is expected to be passed next month by San Francisco supervisors. San Francisco is currently subject to a strict green building code which was described in detail on a prior blog post. If this new measure passes, it will assist in making San Francisco’s green building legislation one of the most comprehensive of any city nationwide.

In May, we mentioned that the Mayor was planning this legislation, and, as predicted by pundits, it does go far beyond the statewide energy reporting required by AB 1103.  The program proposed by Mayor Newsom implements many of the recommendations suggested by the Task Force on Existing Commercial Buildings. (For our discussion of AB 1103 and our series on the Report from the Mayor’s Task Force On Existing Commercial Buildings, click here).  The legislation is modeled on similar programs in California and Boulder, Colorado, and requires the use of free software from the US EPA.

The cornerstone of the legislation is that it requires building owners to conduct a comprehensive energy audit every five years and an updated audit every year. This emphasis on energy efficiency will provide an additional layer of measurement and verification that is often missed in building codes and third party rating system such as the USGBC’s LEED. However, the newest version, LEED 3.0, does require measurement and verification through a post occupancy audit process. See our prior blog post on this issue here.

The city’s efforts in this regard will provide an important catchall for non-LEED buildings, and even more importantly will focus on existing buildings, not new construction. In theory, once the building owners and managers receive an audit report they will embrace the resulting proposed energy-saving renovations.   Most, if not all, of the available energy-saving renovations are subsidized by Federal and State programs, thus assisting implementation.  Stay tuned to the California Green Building Blog for a comprehensive review of the ordinance if this legislation passes.

UPDATE: This legislation is on the way to passage.  Click here for coverage

I am presenting in one of three great webinars presented by the State Bar of California.  The webinars will be on May 12, 19, and 26.

The first webinar is “Sustainable Development: Moving Beyond Green Building Toward Sustainable Building and Sustainable Master Planning” I will discuss alternatives to LEED and the many factors interested parties should consider when designing and developing sustainable buildings and neighborhoods.   Jeff Conner (Conner & Associates), Matt Burris (CTG), and Patricia Chen (Miles Chen Law Group, P.C.) will join me  in a roundtable discussion that will discuss LEED as well as other ways to develop a sustainable project (i.e. ICC, GreenPoint Rated, or independent assessment).  Each approach requires unique planning and permitting.  More information can be found by clicking here.

Our webinar is the first of a series.  There are two more webinars that are really worth checking out.  The first is , “Sustainable Development: Charting a Course to a Sustainable Future Through CEQA Compliance and Effective Climate Action Planning – Demystifying AB 32 and SB 375″ and the second is “Sustainable Development: The California General Plan Law and General Plan Updates: The Future of Sustainable Development”

We hope to catch you online at these events!

As discussed in Part I of this post, LEED version 3.0, first implemented in June 2009 includes enhancements that place greater emphasis on closing the gap between performance expectations and actual performance.  These measures were likely included partially in response to studies focusing on performance of LEED buildings that illustrated a potential for large fluctuations in meeting projected performance levels. Performance is primarily based on energy and systems modeling, and one study of existing LEED buildings found that although LEED buildings are higher performing than regular buildings, the actual performance measurements deviate as much as 25% from projected levels.

Version 3.0 introduces several new elements which will work to close the gap between expected and actual performance. Buildings can now gain more points under both the LEED energy efficiency credits and measurement and verification credits, which include greater emphasis on commissioning, post occupancy monitoring and validation of energy use.

One key component to performance monitoring is that the USGBC now mandates that buildings provide post occupancy data on all LEED-certified structures. Buildings must provide the USGBC with post-occupancy water and energy bills, even if the building changes owners. The USGBC plans to collect and analyze this data to determine areas which need the most improvement and in turn to address these areas in subsequent LEED versions. Data collection is taken seriously, the USGBC has posted the following statement on its website:

“CERTIFICATION MAY BE REVOKED FROM ANY LEED PROJECT UPON GAINING KNOWLEDGE OF NON-COMPLIANCE WITH ANY APPLICABLE MPR.  IF SUCH A CIRCUMSTANCE OCCURS, REGISTRATION AND/OR CERTIFICATION FEES WILL NOT BE REFUNDED.”

MPRs, minimum project requirements, were newly introduced with version 3.0 and require each project to meet certain specified criteria including compliance with environmental laws and providing the energy and water use data referenced above.  If a building’s owner fails to provide this data to the USGBC, the building’s LEED certification MAY be revoked.

The USGBC has not stated that once the building’s data is received and analyzed, if it is not meeting performance criteria, its certification will be revoked. As written, it seems that certification can only be revoked by failing to provide the data itself. We will need to wait to see how this new element plays out upon completion of more 3.0 projects. Maybe in the future the USGBC will take the more drastic step of de-certification for failure to meet projected performance if confirmed by data collection.

Obviously, green building will never be as prolific as it seems destined to be if buildings fail to perform.  The USGBC’s recent changes, along with the actions taken by the BSC and ASHRAE (discussed in Part I of this article) are huge steps in the right direction. This nascent emphasis on actual building performance is a trend that will increase significantly as green building continues to gain traction and a larger percentage of LEED buildings’ post-occupancy performance can be tracked and analyzed.

Stay tuned to the California Green Building Blog for new information on this topic.

It seems that green building made it to primetime in 2009. Not only are individual projects embracing third party rating systems, the past few years has also seen a meteoric rise in popularity of codifying green as hundreds of cities and towns across the country adopted green elements into their building codes. And, just this January, California became the first state to mandate a state wide green building code.

Despite the hype about the use of sustainable building methods, actual systems performance of green buildings is sometimes neglected and often overlooked. This is because much of the energy and building systems post-occupancy performance evaluations are based on pre and mid construction modeling and calculations. People have finally seriously begun to ask the question: are green buildings meeting their performance expectations?

If a building does not perform as promised, it not only fails to deliver, it could lose its marketing edge, lose its tax or government incentives, and could even be faced with a lawsuit over these failed expectations. Thankfully, this was also the year that these concerns began to be concretely addressed. California’s Building Standards Commission (BSC), the American Society of Heating, Refrigerating and Air-Conditioning Engineer’s (ASHRAE), and the US Green Building Counsel (USGBC) all placed greater emphasis on building performance by including heightened commissioning and mandatory post-occupancy performance evaluations in their rating systems or mandates.

California’s new “CALGreen” building codes place emphasis on the typical areas such as site sustainability, water use efficiency, energy efficiency, indoor environmental quality, air pollution, and materials and resources, but also include the often under emphasized requirement of commissioning. Commissioning is added assurance that all the building’s subsystems for HVAC, plumbing, electrical, fire/life safety, and building security are operating as intended by the owner and as intended by the building architects and engineers. It is a key element in achieving reduced energy levels and ensuring a high performance green building. The BSC recognized this and included in the CALGreen building codes a requirement for a pre-construction commissioning plan as well as the mandatory preparation of a commissioning report recommending post occupancy commissioning and systems operation training.

Another major recent development is ASHRAE’s newly released Standard 189.1, published in conjunction with the Illuminating Engineering Society of North America and the USGBC. The ASHRAE standard was developed with the intention that it will be adopted and incorporated into building codes. Standard 189.1 increases energy savings over the prior commonly used Standard 90.1. It requires that measurement devices with remote communication capability be installed to collect energy consumption data. Energy subsystems like the building’s HVAC system, or elevators are also required to collect and store data if the subsystems collective load exceeds specified thresholds.  Data must be collected daily with hourly energy use profiles and must be retained for at least 3 years. This will assist building owners and operators as well as local jurisdictions meet their sustainability targets and is intended to complement LEED and other existing green building rating standards.

Finally, the leading market based rating system developed by the USGBC, LEED, released a new version 3.0 last June which includes enhanced commissioning requirements placing further emphasis on building performance… Stay tuned for part II of this post for more information.

Governor Schwarzenegger signed AB 510 on February 26, 2010 (Click here for full text of AB 510) (Click here for press release and video). We covered the basic elements of the new law in Part 1 of our coverage last week (click here for that post). Now, we turn to some other elements of the law… some of the fine print, if you will…

The law balances the interests of utilities, customer-generators, and non-participating customers. (This balance, and the fact that there is no discernable impact to the General Fund, are likely the reasons the bill passed the Senate by a nearly unanimous vote.)    In addition to lowering the proposed cap from 10% to 5%, an example of concessions to utilities is found in Section (3)(l).  That section requires that customer-generators pay the Department of Water Resources for all charges that would otherwise be imposed on the customer had they not entered the net-metering arrangement.

Another significant concession is found in Section (5)(B).  Under that section, the utilities can use the energy provided through net-metering arrangements toward the Renewable Portfolio Requirements (outlined in Public Utilities Code Section 399.15 and 387).  Under previous net-metering law, utilities were not permitted to count net-metering toward these obligations.  Now, utilities have a chance to meet the aggressive target of generating 33% of their energy from renewables by 2020.  (The utilities are far from reaching the Renewable Portfolio Requirements of 20% of energy from renewables by 2010).  If California residents and businesses continue to install solar and wind power generation, the utilities have a chance to meet the portfolio requirements, but the current 5% cap will have to rise again.

On the consumer side, there are very reasonable concerns that net-metering raises the energy bill for non-metering customers.  To assuage those concerns, the bill establishes a rate-setting commission that will set net-metering compensation rates and provide a report detailing 1) the market effects of net-metering and co-energy metering, and 2) how the authority’s rate schedule ensures consumers who don’t enter net metering arrangements pay the same for power that customer-generators pay.

AB 510 reflects a state leading the way in establishing energy independence.  It is great legislation now because it doesn’t tap into the General Fund, and it encourages private businesses (e.g. Solar City or Renewable Funding, LLC).  The law is another step forward that keeps California as a leader in United States renewable energy generation.

Editor’s Note:  The CGBB is always pleased to have Sarah Grilli contribute, and here is her latest post:

On Tuesday January 12, 2010 California became the first state in the USA to pass a state-wide building code that requires comprehensive sustainable construction and energy reduction. Currently voluntary, the CalGreen Codes are mandatory starting January 2011.

The codes focus on all aspects of sustainable buildings (materials, energy, water, construction and other waste). An important piece of the legislation that media failed to mention, however, is the requirement for building commissioning and post occupancy systems management. This often overlooked piece is seen as a huge victory by the USGBC whose LEED version 3.0 also placed significant emphasis on systems performance elements.

Several California environmental organizations such as the Sierra Club and NRDC along with, Build-it-Green and the USGBC (the two leading CA organizations with private green rating systems) have opposed certain elements of the codes.  A key concern for some of these groups is the fear the new code will allow developers to market a development as “green” by building to code instead of the more stringent private rating systems.  Thus, the new codes may cause marketplace confusion about the definition of a “green” building.

These concerns are legitimate.  The fight to define “green,” is the subject of constant debate.  Take the term “organic” for example.  The federal “organic” label is regularly the subject of litigation and debate.  Is “green” different?

As sustainable building measures become commonplace, the building community and the public will strive to comprehend what elements make a building “green.”  People may still opt for buildings that exceed the State’s green code, but the state now provides an easier option.  As long as the codes are enforced, smaller California communities without any green elements in their building codes will benefit enormously. This is precisely the reason a national energy efficiency building code is needed.

It is possible that “green building” will follow a similar path as “organic,” and the federal government will pass a national energy efficiency building code (See our post on the subject here and a fact sheet from the EPA here). There will always be variations on quality, but at the end of the day what’s most important is that “green building” practices become the norm.

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