The law of green buildings : regulatory and legal issues in design, construction, operations, and financing / J. Cullen Howe and Michael B. Gerrard, editors ; Frederick R. Fucci, contributing editor.
2010
KF5701 .L39 2010 (Map It)
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Details
Title
The law of green buildings : regulatory and legal issues in design, construction, operations, and financing / J. Cullen Howe and Michael B. Gerrard, editors ; Frederick R. Fucci, contributing editor.
Published
Chicago, Ill. : American Bar Association, Section of, Environment Energy, and Resources ; [Washington, D.C.] : ELI Press, [2010]
Copyright
©2010
Call Number
KF5701 .L39 2010
ISBN
9781616320140
1616320141
1616320141
Description
xxv, 408 pages ; 26 cm
System Control No.
(OCoLC)645708322
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Added Corporate Author
Table of Contents
Preface / Michael B. Gerrard
xv
About the Editors
xix
About the Contributors
xxi
pt. One
OVERVIEW OF GREEN BUILDINGS AND THEIR RATING SYSTEMS
ch. One
Overview of Green Buildings / J. Cullen Howe
3
Introduction
3
What Makes Buildings Green?
3
Definitions of "Green Building"
4
The Most Important Element: The Efficient Use of Energy
4
The Reality of the Built Environment: The Problem of Existing Buildings
5
Impacts of Conventional Buildings That Green Buildings Seek to Rectify
5
Energy Use in Buildings
5
Greenhouse Gas Emissions and Indoor Air Pollution
7
Building Water Use
8
Land Use and Consumption
9
Construction Materials
10
Construction, Operation, and Demolition Waste
11
The Role of Lawyers in Green Building
11
ch. Two
Green Building Rating Systems and Green Leases / Jeff York
15
Introduction
15
Green Building Rating Systems in General
15
Leadership in Energy and Environmental Design (LEED)
16
Background and Development of LEED
16
LEED Basics
17
LEED Certification Submittal Process
21
LEED Certification Appeals Process
22
Criticisms of LEED and Its Evolution
23
LEED Accreditation
25
Other Green Building Rating Systems
25
Building Research Establishment's Environmental Assessment Method
26
Green Globes
26
Energy Star
27
Green Guide for Healthcare
27
Regional Residential Rating Systems
27
Green Leasing Systems/Measurements
28
What Is a Green Lease?
28
Green Leasing Frameworks and Guides
28
Unique Legal Issues for Green Leases
29
Conclusion
31
pt. Two
FEDERAL, STATE, AND LOCAL GOVERNMENTAL INITIATIVES
ch. Three
Federal Government Initiatives to Promote Green Building and Sustainable Development / Gregory Hoffnagle
37
Introduction
37
The Statutory Landscape
38
The Energy Policy Act of 1992
38
The Energy Policy Act of 2005
39
The Energy Independence and Security Act of 2007
39
The American Recovery and Reinvestment Act of 2009
41
The American Clean Energy and Security Act of 2009
43
Leading by Example: Furthering Green Building Practices in the Executive Branch
45
Executive Order 13, 123
45
Sustainable Buildings Memorandum of Understanding
46
Executive Order 13, 423
48
Executive Order on Federal Sustainability
48
The Bully Pulpit: The Federal Government's Use of Voluntary Programs to Promote Green Building in the Private Sector
49
Before Construction Starts: Green Design and Green Building Materials
49
Storm Water Management During and After Construction
50
Green Construction Equipment
52
The Energy Equation
54
Greening the Indoor Environment
58
Greening the Outdoor Environment
60
Planning for the End of Building Life
60
Conclusion
61
ch. Four
State and Local Green Building Laws and Initiatives / Preston D. Koerner
71
Introduction
71
Selected State Green Building Initiatives
71
Statewide Green Building Codes
72
State Legislation Concerning Green Buildings
73
State Executive Orders Concerning Green Buildings
75
Greenhouse Gas Reduction Legislation
76
State Tax Incentives
78
Other Financial Incentives
79
Technology-Specific Incentives
80
Municipal Initiatives
81
Larger Municipalities---Private Construction
82
Smaller Municipalities---Private Construction
83
Non-governmental Initiatives
85
Questions about LEED Building Performance as Basis for Policy Making
86
Legal Obstacles to Implementing State and Local Green Building Legislation
87
Causes of Action Challenging State- or Local-Level Green Building Legislation
87
Corresponding Drafting Considerations for Policy Makers and Legislators
92
pt. Three
FINANCING AND ALTERNATIVE ENERGY OPTIONS
ch. Five
Green Building Financing / Jennifer M. Rohleder
103
Introduction
103
Federal Financing Options
104
Federal Grant Programs
104
Energy-Efficient Mortgages
105
Federal Tax Incentives in the Internal Revenue Code
107
State and Local Financing Options
109
State Financing Options
109
Municipal Financing Options
115
Conclusion
118
ch. Six
Alternative Energy Options for Buildings: Distributed Generation---Power Generation On or Near Buildings / Annette Nichols
125
Introduction
125
Distributed Resources
126
Demand-Side Management
126
Smart Metering
129
Performance Contracting/Reducing Energy Use in Existing Buildings
130
On-Site Generation of Power
131
Backup Diesel Generation
131
Combined Heat and Power/Cogeneration
132
Fuel Cells
134
Solar Energy
135
Geothermal Energy
138
On-Site Wind
140
Biomass
141
District Energy
142
Interaction of Distributed Resources with Central Generation
142
Installing On-Site Generation
143
Energy Services Agreement
143
Design-Build Model
144
Energy Sales Model
144
Construction Contract Characteristics
146
Operations and Maintenance (O&M)/Performance over Period of Contract
148
Sophisticated Energy Management Services
150
Financing
151
Incentives and Renewable Energy Credits
152
Things to Watch Out For in DG Projects
156
Interconnection
156
Relationship with the Local Utility---Standby Tariffs
159
Regulatory Concerns
160
Land Use/Permitting Issues
161
Integrated Building Design
162
ch. Seven
Energy Performance Contracting for Buildings / Frederick R. Fucci
169
Introduction
169
Energy Performance Contracting
170
Energy Performance Contract Customers
171
Components of an Energy Performance Contract
172
Initial Energy Assessment
173
Investment Grade Audit
174
Procurement/Installation Phase
174
Commissioning
177
Performance Period---M&V and O&M
177
Government Contracting Aspects
180
Financing Energy Improvements
183
Non-appropriation Risk
186
Contract Models
187
Performance Contracting for New Buildings
188
pt. Four
PRACTICAL ISSUES IN BUILDING GREEN: SITING, MATERIALS, WATER USE, AND RETROFITTING
ch. Eight
Site Selection and Land Use Planning / Amy Lavine
195
The Problem of Sprawl
195
Solutions to Sprawl
198
LEED and Site Selection
198
Mixed-Use Zoning
199
Transit-Oriented Development
200
Cluster Development
200
Habitat Overlay Zoning
201
Subdivision Requirements
201
Parking Ordinances
201
Urban Containment Regulations
202
Infill Incentives
203
Transfer of Development Rights Programs
204
Using Environmental Reviews to Assess Greenhouse Gas Emissions
204
Greening Comprehensive Plans and Performing Green Audits
205
ch. Nine
Green Materials and Construction / Scott J. Sachs
217
What Is Green Construction?
217
Why Green Construction Is Necessary
218
Benefits of Using Green Materials and Green Construction Methods
218
Evaluating Green Projects Using Life-Cycle Construction
219
Environmental Costs of Traditional Building Materials and Methods
219
Raw Materials
219
Construction Debris
219
Health, Indoor Air Quality, and Volatile Organic Compounds
220
Common Green Building Materials
221
Reused and Repurposed Materials
221
Recycled Materials
222
Steel
223
Wood
224
Concrete
225
Glass
226
Rapidly Renewable Materials
227
Locally Sourced Materials
228
Green Building Job-Site Construction Considerations
231
Demolition versus Deconstruction
231
Construction Air Emissions
235
Incorporating Green Elements into Construction Contracts
238
The Importance of Specifying Goals and Strategies
239
The Danger in Using Form Contracts
239
Specifications to Include in a Green Building Contract
240
Public Construction and Sustainability Specifications
241
ch. Ten
Water Use and Management in Buildings / Alexandra Dapolito Dunn
249
The Increasing Importance of Water Use in Buildings
249
Indoor Water Use
250
Improving Indoor Water Efficiency
250
Laws and Programs Regarding Indoor Water Use
251
Selected State and Local Indoor Water Use Regulations
255
Outdoor Water Use
256
Pervious Pavement
257
Green Roofs
258
Gray Water Irrigation, Cisterns, and Rainwater Harvesting
261
Innovative Municipal Regulations Concerning Building Water Use
262
Reducing Water Used for Yard Irrigation
262
Promoting Groundwater Recharge
263
Reducing Per Capita Water Use
263
Storm Water Innovation and Mitigation
263
Low-Flow Fixtures
264
Conclusion
264
ch. Eleven
Retrofitting / Erica Brabon
273
Standards and Methods for Improving Building Energy Efficiency
274
LEED Criteria for Existing Buildings
274
Other Third-Party Green Building Rating Systems
280
Federal Requirements and Incentives for Retrofitting
281
The American Recovery and Reinvestment Act of 2009
281
Other Federal Laws Regarding Retrofitting
283
Federal Tax Incentives
284
Selected State Requirement, Policies, and Incentives for Retrofitting
285
California
285
Connecticut
286
Florida
286
Indiana
286
Massachusetts
286
New York
286
Nevada
289
Local Requirements and Incentives for Retrofitting
289
Aspen, Colorado
289
Babylon, New York
290
Gainesville, Florida
290
Los Angeles, California
290
Montgomery County, Maryland
290
New York, New York
291
Why Businesses Should Consider Retrofitting
292
Retrofitting and Due Diligence
292
Basis for Due Diligence
292
Methods of Due Diligence
293
Retrofitting and Green Leases
293
Retrofitting and Historic Preservation Laws
294
Conclusion
295
pt. Five
EMERGING LEGAL AND MARKETING ISSUES AND ADAPTING BUILDINGS TO CLIMATE CHANGE
ch. Twelve
Emerging Legal Issues in Marketing Green Buildings / Randal Shaheen
301
Introduction
301
The Potential Legal Consequences of Making a False or Misleading Environmental Claim in General
302
Federal Actions: The Federal Trade Commission
302
State Law Claims
303
The Potential Legal Consequences of Making Certain Building-Related Claims
304
Claims of General Environmental Benefit
304
Building Certification Claims
304
Energy Savings Claims
305
Carbon Offset and Carbon-Neutral Claims
306
The Activity Measured
306
What Emissions Are Being Offset?
307
Is the Source of the Carbon Offset Legitimate?
307
Conclusion
309
ch. Thirteen
Environmental Review and Climate Change Adaptation / L. Margaret Barry
313
Introduction
313
Climate Change and Real Estate Environmental Review
314
The Basics of Environmental Review
314
Environmental Review Laws, Climate Change, and the Courts
316
Adapting Environmental Review Laws to Address Climate-Change-Related Impacts of Real Estate Developments
316
Incorporating Climate Change into the Environmental Review of Real Estate Projects
318
Environmental Review Laws and Adapting Real Estate Development to Climate Change
330
Adapting Buildings for Climate Change
331
Flood Plain Sea-Level Rise: The State of Things
332
State Approaches to Climate Change Adaptation for Buildings
334
Other Approaches to Climate Change Adaptation for Buildings
344
Final Thoughts on Adaptation
345
ch. Fourteen
Emerging Legal Issues in Green Construction / Chris Cheatham
359
Introduction: The New Regulatory Environment
359
Anatomy of Green Building Regulations
360
Government Construction Regulations
360
Mandatory Green Building Regulations
361
Financial Incentives
361
Non-financial Incentives
361
Current Legal Challenges to Green Building
361
Green Federalism: AHRI v. City of Albuquerque
361
LEEDigation: Southern Builders v. Shaw Development
363
Overbroad Financial Incentives: The Failure of the Las Vegas Green Building Tax Incentive
366
Unenforceable Enforcement Mechanisms: District of Columbia's Green Building Act
367
Identifying and Managing Potential Regulatory Risks
369
Guide to Online Resources
375
Index
385