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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As you will recall, the Property Assessed Clean Energy program allows residents to pay for solar installations through a tax assessment on their property.  Last year, the Federal Housing Finance Agency (FHFA) essentially stopped the program with a letter advising mortgage lenders that Fannie Mae and Freddie Mac would not purchase mortgages on homes that also have PACE financing.  California and eight other parties sued the FHFA to rescind its letter and change its policy.

The PACE lawsuit (Case Nos. 10-cv-03084 CW, 10-cv-03270, CW, 10-cv-03317 CW, 10-cv-04482 CW) continues with a possible end some time in the summer of 2012.  A trial date is set for April 30, 2012.  (click here for the Case Management Order).  Some of my previous coverage of the lawsuit can be found by clicking here. In the beginning of this year, the court asked the Attorney General of the United States to submit a Statement Of Interest offering its position regarding the PACE lawsuit.

Although the executive branch previously endorsed the PACE program, and the creative financing mechanism that is the cornerstone, the Statement of Interest evades the issue at hand (the subrogation of primary mortgages).  Instead, the DOJ argues simply that the the FHFA has authority to bring and defend its own lawsuits and the DOJ does not see a need or mandate to interfere with FHFA’s handling of the matter.  The DOJ then states its only area of concern is that the plaintiffs lack standing to bring the suit.  While plaintiffs may lack standing (I doubt it), the DOJ could have also offered analysis of the legitimacy of the program’s structure.

The parties are now heading to the discovery stage of litigation, but frankly there is nothing to discover.  As far as I can tell, there are really no material facts in dispute.  Either the FHFA is going to allow for PACE programs to move forward, follow the Department of Energy guidelines (Full Guidelines Here), and acknowledge the minimal risks involved.  Or, the FHFA will undermine one of the best modern approaches to nurturing mainstream adoption of sustainable development.

Unless Congress passes a law supporting PACE financing, the lawsuit will move forward, and frankly the prospects don’t look good for plaintiffs.  That means PACE programs will essentially become a great idea undermined by the inflexibility of bureaucracy.

The feud between Fannie Mae, Freddie Mac, and the PACE program is heating up.  I’m going to play devil’s advocate (for a moment), so let me quickly set the stage.  As you will recall, Fannie Mae, Freddie Mac, and their parent entity (following the financial crisis of 2008) the Federal Housing Finance Agency (for convenience, collectively “FHFA”) single-handedly torpedoed the Property Assessed Clean Energy program (PACE), one of the best publicly and privately-funded tools for gaining energy independence.  California immediately sued to stop FHFA from interfering with the programs. (United States District Court For The Northern District Of California, Case 4:10-cv-03270-CW)  According to pacedata.org, five other parties have separately sued the FHFA.  Just last week, the FHFA filed a motion to dismiss the California lawsuit. I am not willing to join FHFA’s motion, but I am also willing to say we can’t just scapegoat FHFA. They are just doing their job.  Perhaps a compromise is in order?

For a copy of California’s lawsuit against the FHFA, click here.

For a copy of FHFA’s recently filed Motion To Dismiss, click here.

FHFA is in charge of protecting the integrity of the housing finance industry, and they have taken on PACE financing because it undermines the integrity of primary mortgages. They have a point, and they can’t just look the other way (as much as it appears they are looking straight into the pockets of big banks).

(See our previous posts on AB 811 backed PACE financing programs such as BerkelyFirst or SFGreenFinance by clicking here).

PACE debt is classified by municipalities as an assessment, and in case of non-payment the PACE debt becomes a tax lien against a home. The issue FHFA have is that in case of foreclosure, tax liens are paid first. That puts the PACE payout in front of a primary mortgage, and that undermines the integrity of the primary mortgage market.  If PACE programs explode in popularity across the nation (as they were prior to the FHFA advisory letter), that’s a big problem for FHFA.  The PACE debt is likely small, but if it is nationwide it is definitely an issue. If FHFA are going to be true to their mission they have to stand up to this (especially since Fannie Mae and Freddie Mac didn’t show sound judgment leading up to the mortgage-backed securities financial crisis).

The sticking point is proponents of PACE financing aren’t interested in making the PACE debt secondary to a primary mortgage.  Recently, California Representative Mike Thompson (and many others) proposed a bill that’s a pretty good compromise, but still asks the FHFA to look the other way on PACE financing.  The devil’s advocate is not sure this is appropriate in situations where private entities finance PACE debt.

HR 5766 requires that:

“the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation [Fannie Mae and Freddie Mac] shall adopt underwriting standards that are consistent with the Guidelines for Pilot PACE Financing Programs issued on May 7, 2010, by the Department of Energy.”

The DOE guidelines referred to in HR 5766 state:

“In states where non-acceleration of the lien is standard for other special assessments, it should also be standard for PACE assessments. After a foreclosure, the successor owners are responsible for future assessment payments. Non-acceleration is an important mortgage holder protection because liability for the assessment in foreclosure is limited to any amount in arrears at the time; the total outstanding assessed amount is not due in full.” (Full Guidelines Here)

The DOE guideline quoted above states that under a PACE program in a state where under foreclosure proceedings a primary mortgage holder can demand payment for the full amount of the debt, PACE assessments can only ask for the debt that was owed up to the time of the foreclosure.  This is an important distinction.  The problem is that the PACE lien still supersedes the primary mortgage to some degree.

I doubt this would be such a problem if municipalities provided all of the financing for PACE programs. Municipalities will always have the power to impose assessments.  The problem is that often PACE financing is provided by private enterprise.  Further, with the municipal budgets in pieces, the likelihood of private finance for PACE programs only increases.  I am all for PACE programs, but allowing a private entity to supersede a primary mortgage without asking the primary lender seems a little, shall we say, inconsistent (even if the motives are pure).

For my return from the devil’s side of the argument, and some suggestions for solutions, click the “more” link here:  (more…)

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 local California programs that allow homeowners to pay for green renovations through an added assessment on their property taxes is in jeopardy.  The BerkeleyFirst program – the first Property Assessed Clean Energy (PACE) program in the nation, is still up and running, but San Francisco suspended the GreenFinanceSF program, and Sonoma County now sends warning letters out with every application.  Mind you, 22 states now have PACE programs (enabled in California by AB 811), and President Obama wants to allocate $150 million in federal funds for these programs.  Someone in his office better call the Federal Housing Finance Agency (FHFA), because they don’t like the programs one bit.

The issues started when Fannie Mae and Freddie Mac sent out a letter in the beginning of May that scared some investors and homeowners because it stated, “an energy-related lien [i.e. PACE loan] may not be senior to any mortgage delivered to Freddie Mac.”  Then, at the beginning of this month, the FHFA (who oversee Fannie and Freddy) stated that the PACE loans pose a risk to lenders, and called for the programs to be stopped.  Last week, California shot back and sued the Federal Government to have the FHFA back PACE programs.

FHFA’s concern is that if a property goes into foreclosure, property taxes are the first debts paid off.  Since the PACE loans are an assessment included in property taxes, the PACE loans would be paid off first in a foreclosure.  Almost universally, a primary mortgage is paid off before any subsequent loans taken on a property.  The PACE loans throw that fundamental rule out the window.  This allegedly adds risk to the primary mortgage, and since Fannie and Freddie are the largest purchasers of mortgages in the nation, they object.

To make matters worse, a New York Times article reports that Fannie and Freddy might not accept mortgages with PACE loans.  Fannie and Freddy turning down mortgages is huge.  The two entities own nearly 50% of the mortgages in the nation, and banks rely on the ability to sell mortgages in bulk to Fannie and Freddie.  If PACE loans make mortgages less valuable in the mortgage market (the banking market that bundles groups of mortgages and sells them wholesale between banks and investors . . .e.g. “mortgage-backed securities”), that will essentially end the programs.

I understand the FHFA point of view, but I think their concerns are overblown. The improvements to the property add value, and the PACE payments are generally very small. A $25,000 loan at 6.5% over 20 years comes to about $185 / month.  If you consider the savings to the owner’s energy bill, are we really talking about a debt obligation that will jeopardize someone’s mortgage payment?  Indeed, what if the local government just increased taxes outright?

The PACE programs are gaining tremendous momentum, creating jobs, and leading us toward energy independence.  Throwing a wrench in the system over something quite small is not only counter-productive, its subversion.  We’ll track this issue closely, and let you know of further developments.

More on the lawsuit from Sustainable Business here

More on the lawsuit from the San Francisco Chronicle here

The CGBB first post on BerkeleyFirst is here

The Mayor’s Task Force Report On Existing Commercial Buildings divided their recommendations into four themes.   In this final post of our series, we address the final theme, “Lead By Example.”

The theme speaks for itself.  The task force essentially states that the city must institute change in municipal buildings before it can insist on changes in the private sector.   I emphatically agree, if for no other reason than the government needs to understand how the systems work before enforcing their use.  San Francisco, under Chapter 7 of the Environment Code leads by example, and there are other examples.  The recently launched GreenFinanceSF, a Green Finance program from the SFPUC, is a direct answer to the task force report.  Admittedly, we missed it in our last post on the topic, but we’ve updated the post, and we will discuss the program in the future.  Please check out the program, it looks great.

Some argue that the private sector is more adept to implement change.  The belief that the private sector will lead the way, however, is misguided.  The private sector has had years to renovate existing buildings, but the implementation is only on the fringe.  Below, please find a quick timeline as to why this is.

The 1960’s and ‘70’s saw a huge surge in societal awareness of sustainability.  This was due to hippies, the oil embargo, and in my case, Ranger Rick, Woodsy Owl, the Tearful Native American, and John Denver (among others).  Even then, these advocates addressed pollution and environment.  Sustainability in construction was considered a fringe movement for those who could afford it.  Then, sustainability lost momentum when the price of oil tanked in the 1980’s.

Even when oil prices rose in the ‘00’s, and analysts touted life-cycle cost savings, private developers were unwilling to pay a “green premium” (the cost difference between a green building and a standard building).  But in 2001, citing life-cycle costs, energy independence, and social consciousness, California and Oregon required that all new municipal buildings meet high environmental and energy efficiency standards.  Other states including Washington, and New York followed, and in 2003, the GSA mandated that all new federal buildings meet LEED Silver standards.   Other states including Pennsylvania, Massachusetts, and Florida joined the green movement.

With such huge markets mandating green, economies of scale took over.  To answer the large orders from state and the federal government, manufacturers produced higher volumes of green products thus reducing the price. The municipal contracts created a new green economy, and materials such as denim insulation (pun intended) emerged as viable products.  New companies formed and new technologies were invented to answer the call for green supplies.  Large contractors altered their methodologies and trained their workforce for the green future.

Legislating incentives to encourage green building helped too.  The government, with the help of the taxpayer, led all of this.  Let’s be clear.  If it were not for government, the green building movement would still be for the eccentric fringe. Period.

I’ve said many times that political parties are a liability to progress.  There is no room for partisanship in promoting sustainability and green building.  Energy independence is a matter of national security, and as the gulf oil spew shows, clean energy is a matter of protecting our domestic economy (e.g. keeping fisheries open, generating new construction, or creating auto jobs building electric vehicles at the NUMMI plant).   There is nothing wrong with government leading the way in green building and energy efficiency.  To the contrary, it must be one of their highest priorities.  Government involvement in sustainable development creates jobs, and makes us a stronger, more secure nation.

The task force report is very good, but now the hard part begins.  It has been six months since the report was issued, and I have not seen any new legislation passed or proposed.  GreenFinanceSF is a great program, but that was in the works long before the task force report was issued.  According to the San Francisco Examiner, the Mayor was going to propose new legislation, but I haven’t heard about it since.  I’m happy to help if that’s what it takes, but let’s keep up the momentum.

Hi All,

A friendly reminder that 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.  If you can’t make these dates, you can register by the date of the event, and listen any time in the three months afterward.

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!

I have a core belief that one can not complain unless one provides a solution (that is certainly part of the reason for this blog). Perhaps a number of people went to Al Gore with the same complaint.  Inconvenient Truth was heavy on problems and light on solutions.  Well, Al Gore’s new book, Our Choice: A Plan To Solve The Climate Crisis, is all about solutions, and it is a must read.

The central theme of Gore’s work is that civilization must price carbon emissions based on the effect they have on humanity.  There are other solutions Gore provides, but without monetizing carbon emissions, Gore’s plan falls apart.  It’s not a new concept (cap and trade), and Gore admits that.  If you don’t believe in cap and trade, the book is still a very valuable read.  There is something for everyone.

The book is very well written, and easy to read – which says a lot given the sometimes technical and dense content.  Gore is less colloquial than Tom Friedman (click here for my review of Hot, Flat, and Crowded) whose style sometimes loses efficacy to gain mass appeal.  Gore is more academic, but concise.  And on top of that, it’s just plain interesting.  As with Inconvenient Truth, there are graphics and photos to keep the book flowing through the technical parts.

The first half of the book systematically establishes the foundation of the problems we face (a quick summary of Inconvenient Truth), and provides options for the solution.  Mr. Gore addresses the issues with each sector of industry: energy, manufacturing, transportation, farming, housing (though there is really no section on green building per se) and then lays out all of the options for a solution (solar, wind, geothermal, nuclear, carbon capture and sequestration).

Our Choice is the kind of book one will use as a reference.  Not only does the book provide significant policy arguments, it backs up the positions with facts and science (and a healthy analysis of psychology).  The real take-away is the book drills down to risk/benefit analysis for each approach to solving the climate crisis.  Is nuclear energy really an option?  Can carbon capture and sequestration work for coal-fired power plants?  Our Choice asks the reader to make the choice based on the well-defined pluses and minuses for each technology.

The second half of the book focuses on the challenges of convincing the populous and governments that change must occur now.  Climate change detractors and some members of the Republican Party may take issue with some of this subject matter.  The first half of Our Choice is generally non-partisan, but the second half contains some chapters that take on detractors – many of whom are Republican.   A lot of the content in these sections is re-hashed argument, but it needs to be aired and recorded.  In so doing, the differences of opinion are laid out, and some progress can be made toward a political solution.

Mr. Gore has stated repeatedly that our need to create renewable energy is not just a matter of global warming, it’s a matter of national security.  I agree.  As someone who finds political labels a liability, I suggest we consider at least that rationale.

Al Gore does that and more. Our Choice is a great book to help anyone understand the diverse options we face.

My friends over at the Kellogg Alumni Club are at it again with another great clean tech event. On Wednesday, March 17 the group will host a panel discussion on two emerging clean industries: transportation and energy – including nuclear power. Can that, too, be clean?

The event is open to the public, and it will be a great way to learn and network with leaders. Ideas will definitely be flowing. The top-shelf presenters and panelists include:

Rod Diridon - Clean Tech Rail Pioneer, Executive, Political Leader, and High-Speed Rail Authority Board Member
Bob Garzee - Clean Tech Automotive Transportation Pioneer and Entrepreneur
Jeff Hamel - Energy Researcher and Clean Tech Advocate

Networking, passed hors d’oeuvres and a cash bar start at 6pm, and the presentations and discussion will go from about 7 – 8:30 pm. You couldn’t ask for a better setting: the beautiful McCormick and Kuleto’s – right on the water. See you there!

Click Here For More Information And For Reservations.

Also, remember Kellogg’s San Jose clean tech event with different panelists, Thursday, April 1. Click here for more information on that!

The International Code Council (“ICC”) recently announced that it is developing a model green building code for commercial buildings. The new code aims to catapult green building techniques into normal building practice. The code will provide guidance in the areas of water reduction, energy efficiency, indoor environmental quality, materials and resource reduction, and overall environmental impacts of the buildings.  The ICC stated in its announcement that it is creating the code while recognizing other rating systems. One can only assume it means the preeminent rating system, the USGBC’s LEED. (ICC’s world headquarters are located in a LEED certified building.) The ICC has also previously developed a residential green building code, ICC 700, which was released on 1/30/09.

The press release issued by the ICC for the new commercial code asks for comments from those working in the field during the drafting process. Comments can be sent to the following address: GreenBuildingCode@iccsafe.com. The ICC also stated that individuals can become even further involved by becoming members of the Sustainable Building Technology Committee, which they allege will play a key role in development of the code. If you are interested in joining the committee, click here.

This new ICC code will be yet another resource for governments to add to their toolbox, and hopefully it will provide even more incentive to cities and countries throughout the world to draft building codes with mandatory green building practices. Some may even decide to adopt the code in its entirety. Stay tuned: this blog will provide a summary of the code once it is released and will follow any standards that adopt all or part of its provisions.

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