Many of the economic predictions in circulation mark 2009 as the year the world will begin to see improvement in the economy. Most foresee a long, slow path to recovery, something that may be 10 years in the making. It took about this much time for the current green building movement to gain real momentum. Coupled with a dour economy and court-challenged green building legislation, the green building movement is in jeopardy. Can the green building movement survive the onslaught of legal challenges and tough economic times? Will green building goals be set aside as expensive, unnecessary luxuries? Will it be litigated out of existence?

As money for new construction continues to be scarce, construction budgets are feeling the pinch and are being carefully scrutinized to trim all possible fat. There are many green building strategies that will fall into the “unnecessary frills” category for many owners and developers, and will be eliminated outright. Exotic and expensive green building components such as solar panels, certified wood, on-site waste water treatment, green roofs, and storm water treatment will likely not even be considered. Instead, if green building strategies are pursued at all, they will more than likely be limited to the easiest and least costly items like low-emitting materials, reflective roofing membranes, recycled-content material, low-flow plumbing fixtures, and building ventilation.

The tough economy may well result in better green buildings and green building rating systems. Instead of spending time, energy, and money chasing green building strategies of dubious value, project teams with a green conscience will be focused on things that make the most sense, and have the greatest demonstrable economic and environmental value.

A TICKING TIME BOMB

A handful of states, cities and local jurisdictions have passed legislation requiring new buildings to meet minimum green building performance benchmarks, usually tied to green building rating systems. The adoption of this type of legislation without a thorough examination of the consequences is a recipe for disaster. The lawsuits are just beginning and will become more widespread as it becomes tougher to buy the green building rating system points necessary to meet minimum requirements.

To reduce potential lawsuits, existing and future legislation requiring minimum green building achievement will have to carefully consider what is achievable, at what cost and whether or not what is achieved provides demonstrable environmental benefit.

An example of the litigation we can expect to see more of can be found in a reading of the HVAC industry association’s recent lawsuit against Albuquerque, N.M. in AHRI vs. City of Albuquerque, in which the litigants were successful in enjoining the green building performance legislation from taking effect.

Last summer, the Real Estate Center at DePaul University, Chicago, and Alberti Group organized a two-day conference in Chicago titled, “Managing the Risk of Sustainable Buildings: Policy, Performance and Pitfalls.” An excellent account of the perils facing green building legislation can be found in the proceeds, in which a participant, attorney Stephen del Percio, sums it up nicely:

“As of August 2007, 24 states and 90 local governments had adopted the U.S. Green Building Council’s LEED building standards, while 12 states had included the Green Building Initiative’s Green Globes system in legislation. In the rush to respond to what many believe to be an imminent natural crisis, much of this legislation has been quickly passed without consideration of its broader legal ramifications.

“First, some pieces of legislation have been poorly drafted, incorrectly defining significant terms. For example, Washington’s Green Building Act of 2006 seems to misunderstand the fundamental concept of a performance bond, which led the National Association of Surety Bond Producers to refuse to issue such bonds until the Act’s language was clarified.

“Second, an increasing number of laws are now applicable to private construction, obligating projects over a certain size to comply with an independent, third-party rating system over which the local government exercises no control. In some ways, this type of legislation is simply undemocratic. It takes local government completely out of the decision-making process and hands control over the building code to a third-party organization over which the public exercises zero oversight.

“Third, pursuant to Supreme Court case law, constitutional questions exist over the ability of a local government to regulate private land use through the application of rating systems that may not, in fact, bear a substantial relationship to public health, safety, morals or general welfare.

“Finally, legislating one specific building rating system into law may present antitrust law implications under both statutory and case law authority.

“Enacting legislation without considering these critical legal implications is irresponsible and dangerous to the long-term prospects for the sustainable building movement at large. Every real estate industry stakeholder will agree that environmental conservation is an important goal. However, by quickly passing legislation that does not consider all potential legal ramifications, state and local governments may ultimately end up pushing the building industry away from that desirable outcome. A morass of litigation challenging regulatory schemes that are poorly drafted or essentially illegal could slow the sustainable building movement’s positive momentum. Questioning the validity of these schemes should not be construed as legal pontification but rather an important piece of the dialogue that will, hopefully, result in a more sustainable outcome.”

Green building rating systems developers take notice: Well-drafted legislation cannot help poorly drafted green building rating systems. There are countless examples of “green” buildings that were built in accordance with green building rating systems requirements that have utterly failed to live up to promised results.

In the first article I wrote for this column, I gave some examples of this. Since then, more examples have emerged. In an article titled “Another Green School Gets Failing Grades,” found on the Washington Policy Center’s Blog Web site, a Tacoma school built under the state’s green building law passed in 2005 has failed to meet projected green building performance goals. The article reads: “Rather than putting funding where it will make a difference, Washington is chasing nonexistent benefits which are likely to do actual harm to students especially as the state deals with a $2.5 billion budget shortfall.” This example raises great concern over how the current economic situation and green building legislation will exacerbate an already problematic situation: State passes poorly drafted green building legislation based on poorly drafted green building rating system; building incurs additional costs to incorporate green building rating system requirements in meeting new legislative requirements; building does not perform as promised in green building legislation/rating system; money dries up; litigation ensues.

In a recent article by Joe Lstiburek titled “Prioritizing Green-It’s the Energy, Stupid,” the author pokes fun at the USGBC and its attempt to pull the wool over our eyes by using creative statistical reporting.

Lstiburek includes a sidebar in the article about a March 2008 USGBC report titled “Energy Performance of LEED for New Construction Buildings” in which a statistical sleight of hand is employed to show that LEED certified buildings perform better than non-LEED certified buildings. In explaining the statistical error made in the report, he proves conclusively and persuasively that this is not the case.

A NEW GREEN BUILDING DAWN?

There may be hope on the horizon for green building under the Obama administration. The Obama/Biden energy plan calls for an investment of $150 billion in green technologies over the next 10 years. Buildings are a prominent feature of this plan, which calls for the implementation of the American Institute of Architects 2030 challenge to make all new buildings carbon neutral with zero net emissions by 2030. Additionally, the plan calls for a 40 percent increase in energy efficiency in all new federal buildings within five years and carbon neutrality for all new federal buildings by 2024. In the residential sector, the plan calls for increasing energy efficiency of at least one million low income houses each year for the next decade.

Whether or not this plan will be enacted as law remains to be seen but there is strong bipartisan support for green collar jobs and the passing of a quick economic stimulus bill.

CONCLUSION

The green building movement is analogous to the mythological Greek character Sisyphus who was cursed to roll a huge boulder up a hill, only to watch it roll down again and to repeat this throughout eternity. Although the green building movement’s boulder has not yet rolled to the bottom of the hill, it is coming dangerously close. Rushing to enact poorly drafted green building legislation is slowing momentum. Poorly drafted green building rating systems are slowing momentum. The poor economy is slowing momentum. A slow economy may be an opportunity, however, to improve poorly drafted green building legislation and rating systems.

Think of the slow economy as a wheel chock under the boulder, providing the time out we need to make necessary improvements. Paying attention to smart people, such as Stephen del Percio and Joe Lstiburek, is what we need to do in making the necessary improvements. Ignoring the advice being given by these individuals is tantamount to removing the chock, endangering all of the hard work done thus far in getting that boulder to the top of the hill.