While technically our “competition,” there’s nothing wrong with us welcoming the Lane Powell law firm to the sustainability conversation with the launch of their new blog, Sustainability and Climate Change Reporter.

By gleaning over the promo materials, it appears the blog will focus on environmental regulation and sustainable business practices…which, sometimes, fits right in with our focus:  Green Building and Design issues.

Our favorite post from Lane Powell’s new reporter so far:    Oregon’s Renewable Energy Tax Credit Program Undergoes Revisions.

The new blog from Lane Powell will be well-written and informative, and for those interested in sustainability laws and the green industries, they should subscribe (and subscribe to us, too, of course).

Green building continues to gain momentum nationwide. But developments surrounding a landmark piece of green legislation continue to have major implications for communities across the country.

At issue is Washington D.C.’s Green Building Act, which passed in 2006. The law requires builders in the nation’s capital to meet new energy efficiency standards by 2012. But the act’s language has proved problematic with the surety industry, which is responsible for issuing the construction bonds that guarantee work and protect taxpayer investments.

To dig deeper into the issue, the Surety Bonds Education Center recently interviewed Chris Cheatham, a Washington, D.C., construction attorney and an expert in the green building issues facing the surety industry. His blog, Green Building Law Update, has become a hub for information and insight into the future of green building in the nation’s capital and beyond.

Chris has closely followed the Green Building Act and the subsequent uproar from the surety industry. You can listen to the full interview at the Surety Bonds Sit-down.

On our Construction Law Monitor blog, and here, we’ve written about the intersection of standard insurance policies and green building projects.   And at times, have discussed specific insurance products that may be available.

The problem is simply explained:   Green building projects present unique liability exposures.

Will one party promise energy performance that does not deliver (read:  negligent misrepresentation)?   Will a newer and not fully tested green product constitute a defect in the building, and lead to consequential damages (read: negligence)?  These two examples notwithstanding the obvious possible contractual breaches.

So how does the insurance industry address this unique exposure?

Susanne Sclafane, managing editor of National Underwriter’s Property and Casualty edition, published a really great article on this topic earlier this year:  Insurers ‘Green Up’ Gray Coverage Areas.

The author discusses the coverage problems presented by green building projects, and analyses items that insurance companies are refusing to cover and new endorsements and coverages becoming available.

I highly recommend the article.

My wife and I were looking for condominiums in the Seattle area a few years ago, and every place we inspected marketed themselves as “green built.”   Being a LEEP AP, I asked a few questions about what the label meant.   Most of the time, it meant nothing.

That’s precisely what a new bill in the Washington legislature is trying to prevent.

The practice of deceptive green marketing has a name.   Wikipedia defines Greenwashing as follows:

Greenwashing (green whitewash) is the practice of companies disingenuously spinning their products and policies as environmentally friendly, such as by presenting cost cuts as reductions in use of resources. It is a deceptive use of green PR or green marketing.

Greenwashing is so serious it has its own Greenwashing Index.

The new bill was introduced just this January 2010 by Senators Becker and Fraser, and requires the state building code council to adopt rules to define “green” home and “energy efficient” home for residential units and residential buildings.   It seeks to prohibit builders and developers from marketing or selling a home as “green” or “energy efficient” unless it meets the specifications.

As currently written, the code must be written by December 2012.  Thus far, the bill has strong support.

Builders and Developers should keep a close eye on this legislation, especially as they begin new projects in the coming years hoping to market the project to green-seeking buyers.

If the bill passes, it will be interesting to see how the definitions are drafted, and whether they will incorporate already existing certification programs, such as the U.S. Green Building Council’s LEED program (as a recent amendment to the bill suggests).   Follow the bill at Washington Votes here, or stay tuned to the Northwest Green Building Law Blog.

Let me see if I can convince you Northwesterns to head down to cajun country for a few days to attend the Green Legal Matters conference in New Orleans, LA.

Here are three reasons:  (i) the conference and list of speakers is impressive; (ii) it’s the weekend of Jazz Fest in the city; and (iii) the weather will be perfect (not raining).

Green Legal Matters is a national symposium aimed to bring together the best and brightest legal minds to discuss opportunities presented by the green movement, and the legal challenges it presented for folks in the industry.   The conference producers promise a very full 2 days of keynotes, panels and presentations from subject matter experts.

In what is great news for the Louisiana green industry, the industry is hosting its first annual conference in New Orleans between April 26 – 28, 2010.

I’m happy to be among a number of great experts to speak at the conference, and among some attorneys who are good friends of ours from twitter and blogs such as Christopher Hill (who I’ll present with on green litigation), Shari Shapiro and Tim Hughes.

The conference hopes to pull in great attendance based upon its location (New Orleans = greatest city in the world), the time of year (sandwiched between the two weekends of New Orleans Jazz Festival) and a line-up of very significant speaks including:

• New Orleans Mayor Elect, Mitch Landrieu
• James Carville, political consultant
• Susan Dorn, General Counsel of US Green Building Council
• Roberta Lang, General Counsel, Whole Foods
• Steve Harmon, Sr. Director Legal Services, Cisco

If you’d like to learn more about the conference, or to register to attend, please visit www.greenlegalmatters.com.

At the end of 2009, the U.S. Environmental Protection Agency (EPA) published effluent limitations guidelines (EGLS) and new source performance standards (NSPS) to control storm water runoff and the discharge of pollutants from construction sites.  The new regulations took effect on February 1, 2010, requiring all permits issued by the EPA to incorporate the new requirements.

New Maximum Numeric Turbidity Limitations

For the first time, the EPA has set numeric limits for  the discharge of storm water from construction sites.    The EPA has set a maximum daily average numeric limit of 280 NTU (a turbidity measurement) for covered sites.

In case you don’t know, Wikipedia defines Turbidity as:

Turbidity is the cloudiness or haziness of a fluid caused by individual particles (suspended solids) that are generally invisible to the naked eye, similar to smoke in air. The measurement of turbidity is a key test of water quality.

The turbidity limitations will effect construction sites on a phase-in schedule.    Construction sites with 20 or more acres of earth disturbance must comply starting August 2, 2011, and those sites with 5 or more acres of earth disturbance must comply starting February 2, 2014.

Covered sites must monitor the storm water discharge for turbidity, report the results of the monitoring and use control technologies (which are not defined) to ensure that the maximum levels are not exceed.

Other Changes (Non-Numeric BMPs)

The EPA has identified other mandatory Best Management Practices (BMPs) relating to:  (i) Erosion and Sediment Controls (40 CFR § 450.21(a)); (ii) Soil Stabilization (40 CFR § 450.21(b)); (iii) Dewatering (40 CFR § 451.21(c)); (iv) Pollution Prevention Measures (40 CFR § 450.21(d)); and (v) Prohibited Discharges (40 CFR §450.21(e)).

Additional Resources

• Environmental Protection Agency Web Release of Regulations
• Full Text of Regulations
• Article by Barnes & Thornburg, LLP
• Article by Vinson & Elkins, LLP

A draft of the International Green Construction Code (IGCC) is scheduled for release in March 2010.  Developed in partnership with the American Institute of Architects and ASTM International, and supported by the United States Green Building Council, the code is expected to perform as a “model code” for jurisdictions across the country looking to draft and enforce green construction codes in their areas.

There’s a key difference between the proposed “code” and rating systems such as the LEED Rating system.    Unlike rating systems like LEED, the IGCC is a regulatory framework.

A great article explaining the IGCC and its potential uses and challenges was written by Harvey Berman, a LEED AP lawyer in Ann Arbor, Michigan.   Read it here:   “ICC makes rapid progress on International Green Construction Code.”

It will be interesting to see which jurisdictions adopt the IGCC, and which go further to make it mandatory.

As many in the green building sector know, California has already adopted a “California Green Building Standards.”  While code compliance is currently voluntary, it becomes mandatory this year.   Other cities and states have introduced and passed legislation that will require commercial projects to meet certain sustainable performance benchmarks, although not always in the form of a code.

In Washington state, and the City of Seattle, new laws require commercial property owners to report its energy performance, and disclose it to future tenants and purchasers.   Seattle, Washington, Portland and the entire Pacific Northwest is likely to be among the early adaptors of the IGCC.

Building upon the “Efficiency First” SB 5854 signed into law last year by Washington Governor Chris Gregoire, the City of Seattle announced a new city ordinance that will require owners of large commercial and multi-family properties to measure its annual use of energy.

Why?  Seattle City Council Chair Richard Conlin explains in the city’s press release that “[y]ou can’t manage what you don’t measure.”

New Requirements in Washington & Seattle

In large part, the Washington bill and Seattle ordinance will require certain classes of private property owners to rate their buildings using Energy Star software, and disclose the information to prospective buyers, lessees and lenders prior to any closing transaction.

Here are some highlights of the new state-wide regulations, including information on how it may apply to you:

• Non-residential buildings greater than 50,000 square feet must rate and disclose beginning January 1, 2011.   Buildings greater than 10,000 square feet required to rate and disclose beginning January 1, 2012.
• Beginning January 1, 2010, public agencies may not lease or renew space in private buildings with Energy Star rating less than 75.

The Seattle ordinance adds a few wrinkles, highlighted as follows:

• Multifamily buildings (5 units or more) are subject to disclosure requirements.
• Rating date must be disclosed to current tenants, if they request it
• Energy performance data must be reported annually to City of Seattle.   Multifamily properties must report beginning April 1, 2012.  Other non-residential property must report beginning April 1, 2011 if over 50,000 SF, and April 1, 2012 if over 10,000 SF.

Consequences for Failing to Report

Since the state law and city ordinance is so new and not even in full effect, it’s difficult to predict how aggressive the city and state will be in enforcing the regulations.   As time goes on and the challenges of the requirements are examined, these regulations may even be altered to aid in enforcement.

Seattle’s City Ordinance provides the city with the following remedies if a building owner fails to comply:

1. Failure to Report:  $150 citation, and if not filed within 15 days of the citation, a $150 per day penalty for first ten days of noncompliance, then $500 per day for each day in violation pat the 10th day until compliance is achieved.
2. Failure to Disclose:  $150 citation for first violation, $500 for subsequent violations.

The failure to disclose penalty is a lot less severe than then failure to report, which can become astronomical to a property owner if they try to ignore the ordinance.    As usual, the ordinance does provide administrative procedures to challenge and mitigate citations.

Related Links

Seattle Green Building Capital Initiative

Raw Text:   Seattle Ordinance 123226

Raw Text:   Washington Senate Bill 5854

Guardian News ran an article last week about “Greenroads,” opening with these daunting statistics:

With 4m miles of highway, the USA has around 10% of the entire planet’s paved roads – and spends $85bn (£52bn) annually on rolling out tens of thousands more miles. Building and maintaining a single mile of freeway takes as much energy as 200 US homes use in a year, consumes as much raw material as 1,000 households get through in 365 days and generates more waste than 1,200 homes produce annually.

Wow.

The good folks at the University of Washington have been focused on the greening of roads, and have announced the development of a rating system for road construction.

The “Greenroads Sustainability Performance Metric” works a lot like the U.S. Green Building Council’s LEED program, awarding credits for approved sustainable practices.     The metric already has a bit of support from states according to the Guardian article and the Greenroads website, which states that Greenroads “already has the support of five US state departments of transport.”  Greenroads is following a few projects as “case studies,” one of which was the I-90 West of George paving project in Washington.

Interesting metric system creating that is worth following, as it may one day change the way states and the federal government pave all their roads.

Related articles by Zemanta

• Greenroads lays foundation for more sustainable US road construction | Mark Harris (guardian.co.uk)

Thanks to the Beer With A Construction Lawyer blog for pointing out a new bill in the Washington State Legislature that has green building implications.    The bill is sponsored by Senators Kastama, Rockefeller, and Ranker.

The bill, if passed, would offer very aggressive tax incentives to projects that meet LEED certification standards.   Here is the breakdown:

Platinum Certification:   100% Sales and Use Tax Deferred

Gold Certification:  75% Sales and Use Tax Deferred

Silver Certification:  50% Sales and Use Tax Deferred

Less than Silver:  25% Sales and Use Tax Deferred

Projects would have to apply for the deferral before initiation of the construction.

The bill is interesting to green building nerds because it completely relies on the LEED green building standards published by the United States Green Building Council.   While the LEED program is certainly the most widespread of programs in the country, it’s not without its critics.   See Chris Cheatham’s recent article on his Green Building Law Update blog analyzing the complaint against the USGBC for using anti-competitive practices.

You can follow this bill at the legislature’s website, or by subscribing to the bill’s RSS feed.   Download the original bill text.