Article by Matthew P. Coglianese*
The Earth Day movement of 1970 has come full circle. The "save the planet" mantra of three decades ago is currently being translated from matters of principle and idealism to the practical implementation of such principles within the fabric of everyday life.
The current focus on climate change has resulted in mass media attention, even in the United States, which has refused to participate in the Kyoto protocol and its potential successor treaty. International trading in carbon emissions has taken hold. In the United States, there has been recent major litigation on emissions and global warming issues.1 Individual states have also proceeded to adopt their own regulations to control greenhouse gas emissions.2
Focus on climate change has had the ancillary effect of highlighting other major environmental issues and problems that have been well-recognized in scientific and regulatory circles, but not as much in the general media. All of the current topical issues underscore the importance of the sustainability of resources and are national and international in scope and application. These environmental issues range from alternative fuels, to ecosystem approaches to environmental management and assessment,3 waste reduction and recycling, the preservation of wetlands and water resources, as well as stormwater pollution – and sensible planning and building. There appears to be a systemic recognition that the planet’s resources are, in fact, finite and that it is socially responsible, and good business, to incorporate that recognition into everyday practice.4
One of the most evident examples of environmental values being woven into the fabric of everyday life is the "green building" movement. While the concept of "green" is really not new, and the moniker is integrated into the names and the principles of environmental organizations, the word is now being used to promote earth-friendly development and construction. This essentially means the practice of selecting and developing a site, and building a building, with considerations of efficient and non-wasteful construction techniques and debris removal, energy efficiency in design and construction, and in the final building product, renewable building materials, reuse of resources, enhanced indoor air quality, and even enhanced outdoor air quality, including the reduction of a project’s "carbon footprint."
Although the application and implementation of green principles in development and construction are in the formative stages, an initial framework currently exists in the form of the United States Green Leadership in Energy and Design (LEED) guidelines - a structure established by the U.S. Green Building Council (USGBC).5 LEED buildings can attain a certain level of certification based upon the numbers, and types, of green principles or techniques that are incorporated into the selection and development of a site, and the design and building of a structure. The green principles include a variety of things, from sustainable site practices, such as erosion and sedimentation control plans and "green infrastructure" for reducing combined sewer overflow (e.g., green rooftops), to energy efficiency, material selection and indoor environmental quality issues. According to the USGBC, "To significantly reduce or eliminate the negative impact of buildings on the environment and on the building occupants, green building design and construction practices address: sustainable site planning, safeguarding water and water efficiency, energy efficiency, conservation of materials and resources, and indoor environmental quality."6
Green building is receiving a great deal of attention from the building industry, state and local (and even federal) governments, and by the mass media7. The green construction movement appears to be a significant adjunct to the global climate change issue, with potential implications and effects on people as deep and as widespread as those related to regulating greenhouse gases from cars and industry.8 And the trend looks like it’s here to stay. Why? First, data indicates that in cities, buildings, rather than vehicles, account for fifty to seventy percent of greenhouse gas emissions.9 Buildings also account for thirty-six percent of the U.S.’s electrical consumption.10 So, the data supports the importance of green building in combating deleterious global climate change.
Second, consumers are demanding that vendors, builders, etc. recognize their fiduciary responsibility to the planet. This recognition may initially come mostly in the form of reduction of waste and in reuse of materials, because those changes are relatively easy to implement. Other efforts, such as the use of green, or recycled, building materials, may be a little more involved and may cost more, but such increased costs for building green may be made back relatively quickly by savings in upfront approval costs, in energy efficiency and perhaps in the ability to charge a higher purchase price or higher rents. In any event, there is no question that developers and general contractors, as well as architects and other related trades, understand the rising demand for green are touting their understanding of LEED and green construction as promotional tools.
Third, the likely long-term future of green construction is reflected by the variety of municipalities and local governments that have built incentives into their approval processes to encourage green construction. The incentives range from expedited permits and zoning approval, to financial incentives.11 Undoubtedly, this administrative and regulatory recognition of green principles will become a widespread effort; it is only a matter of time until green principles are incorporated into most standard building codes.
Fourth, environmental organizations have embraced the climate change diagnosis and have filed numerous suits to force governments and the private sector to institutionalize the analysis of the effects that proposed developments may have on global warming. For example, in California, several cases have been filed by a non-profit organization, the Center for Biological Diversity, challenging the legitimacy of environmental assessment reports that do not analyze the effects of the proposed developments on global warming.12 Hence, it is only a matter of time before there is widespread legislation incorporating these principles not only into regulation of car emissions, power plants and industry, but also into land development and construction.13
Will the recognition of global climate change and green building movement lead to more litigation--environmental, construction or otherwise? Certainly the potential is there and has, in fact, begun. There are many issues related to the effects of global warming, such as a reduction in water supply, increased fire risk, more intense storms, etc. that could spawn ancillary lawsuits beyond the landmark suits to force the government to regulate greenhouse gases. For example, California Attorney General Jerry Brown sued the San Bernardino County in April under the state's environmental quality act for failing to account for the impacts of global warming in the county's 25-year growth plan. 14 If such suits to consider the effects of development projects on global warming succeed, developers will need to develop a whole new language; how to reduce the carbon footprint of a building or project by, in part, using "green" materials, recycling, building an energy efficient building, requiring contractors and sub-contractors to utilize green principles (e.g., reduction of waste, electric vehicles), reducing traffic and reducing water usage. If these things are not considered, the result could be litigation on the scale of major zoning litigation – not a welcome prospect for a developer.
Further, as green construction becomes codified in building codes and specifications, run of-the-mill construction litigation may take on a new flavor. For example, if an architect or a contractor is making certain representations in a contract to build a green building by utilizing certain types of materials, by using certain insulation or by committing to water reuse designs and systems, and the final product does not meet these commitments, there is real potential for litigation. While this may not differ from typical construction litigation over unmet contractual expectations or design defects, certainly the subject matter, and the nuances, will be a little different. There will be greater emphasis on more than just bricks, mortar and delays. Experts will need to be retained to analyze whether the stormwater management system is effective and consistent with the design and contract, whether the energy efficiency of the building is as promised, etc. As more novel materials are utilized in building construction, there will be questions whether such materials meet the durability standards expected and warranted by contractors and developers. Further, it is likely that there will either be new types of subcontractors, or existing subcontractors will have to quickly become familiar with the types and sources of material that are considered "green." Hence, there could be substantial litigation between general contractors and subcontractors regarding promises by subcontractors that they had green expertise, would utilize certain types of drywall or plumbing systems, etc.
But perhaps the more immediate impact of failing to meet green expectations will be the negative publicity that would derive from such a failure. It is one thing to promote and promise green expertise and the ability to design and build green, but another thing to fail to deliver on that promise. Such failure could have more wide-reaching repercussions than litigation over the use of green components in an individual project.
Footnotes
* Matthew Coglianese is a partner at Peckar & Abramson where he is Director of The Environmental Practice group. He also has a Ph.D. in biology.
1. See Massachusetts v. EPA, 127 S.Ct. 1438 (2007), a case which concerned EPA’s refusal to regulate greenhouse gases from automobile emissions, and where the U.S. Supreme Court ruled that the gases that cause global warming (i.e. "greenhouse" gases) are "pollutants" under the federal Clean Air Act affording the government the authority to regulate carbon dioxide and other heat-trapping gases. See also Connecticut v. American Electric Power, Inc. 406 F.Supp.2d (S.D. N.Y. 2005) where several states and environmental groups filed suit claiming that global warming is a public nuisance, and that the courts should order the major power companies to restrict their carbon dioxide emissions. In Connecticut v. American Electric Power Company, the plaintiffs sued five major U.S. power companies because, together, they emit 2.5% of the man-made carbon dioxide worldwide, and that allegedly in the next 100 years much of New York City will be flooded by rising sea levels. The plaintiffs were unsuccessful in their attempts to obtain regulation of greenhouse gases, with the lower court ruling that the issues raised by the plaintiffs were political questions and were more properly left to the legislature. The plaintiffs appealed the case to the Second Circuit Court of Appeals and oral argument was heard over a year ago. Interestingly, after the Supreme Court handed down the Massachusetts v. EPA decision in April 2007, both plaintiffs and defendants (and amici) wrote letters to the court explaining how the Supreme Court decision supported their positions in the case.
2. For example, in 2002 California passed a law requiring the California Air Resources Board (ARB) to develop and adopt the nation’s first greenhouse gas emission standards for automobiles. In 2006, California passed the California Global Warming Solutions Act of 2006 (AB 32) which established the first in the world comprehensive program of regulatory and market-based mechanisms to achieve a measurable reduction in greenhouse gases. Under the law, the rate of greenhouse gas emissions in the state must be cut to the 1990 level by 2010- a 25% reduction. See the ARB’s website at http://www.arb.ca.gov/cc.
3. On October 29, 2006, The Standing Committee on Environmental Law (SCEL) of the American Bar Association (ABA) issued a draft report in which it concludes that the ABA should recommend that federal, state, territorial and tribal governments and regulatory agencies utilize an ecosystem approach to preserve and enhance biological diversity, ecosystem integrity and ecosystems’ services and values when undertaking actions and when regulating private conduct. According to the SCEL’s draft report, "The ABA’s recommendation would promote protection of natural and man-made habitats create additional partnership opportunities within and outside the United States and complement the influential international bodies which have considered and adopted the ecosystem approach to regulation." See the SCEL's web site at https://www.abanet.org/publicserv/environmental/home.html.
4. Internationally, corporate and social responsibility are recognized by numerous standard or "grading" organizations, including the International Organization for Standardization’s (ISO) ISO 26000 standard which embodies the concept of social responsibility by providing guidance on environmental, human rights, community involvement and similar issues, and the Dow Jones Sustainability Index which has similar benchmarks.
5. See the U.S. Green Building Council’s (USGBC) website at www.usgbc.org.
6. Id.
7. On July 2, 2007, the U.S. EPA announced that since "America is shifting to a "green culture" in which 300 million citizens are embracing the fact that environmental responsibility is everyone’s responsibility," EPA will be launching a monthly e-mail newsletter, "Go Green." For information see http://www.epa.gov/newsroom/green.
8. Newsweek’s April 16, 2007 cover theme was "Save the Planet – Or Else," and included an article that "It’s hip to be Green."
9. See the U.S. Green Building Council’s (USGBC) website at www.usgbc.org
10. Id.
11. For example, following its January 10, 2007 Public Hearing, the Boston Zoning Commission approved several amendments to the Boston Zoning Code to require all projects over 50,000 square feet to be designed and planned to meet the "certified" level using the LEED system. http://www.cityofboston.gov/bra/gbtf/gbtfhome.asp. San Francisco’s Department of the Environment has a large staff and budget dedicated to sustainability issues. Austin, Texas is evaluating a program to make all new homes "zero energy capable" by 2015. http://www.ci.austin.tx.us/news/2006/ae_zero_energy_homes.htm. Marin County, California set up standards to measure greenhouse gases and set targets for reducing them in a growth plan likely to be approved this year. http://www.co.marin.ca.us/depts/CD/main/pdf/final_ghg_red_plan.pdf. Many cities have established transportation initiatives from more energy efficient public vehicles, to car sharing, to enhanced landscaping and green space. At the federal level, EPA and the Office of Federal Environmental Executive are developing The Federal Green Construction Guide for Specifiers to assist federal agencies in meeting environmental mandates, the Federal Leadership in High Performance and Sustainable Buildings MOU, and EPA and DOE program recommendations. In addition, the Guide will help federal agencies continue to use the LEED rating system and a number of voluntary consensus standards as metrics for their green building practices. See The National Institute of Building’s web site at http://www.wbdg.org/about.php.
12. For an explanation of the lawsuits, see the Center for Biological Diversity’s website at www.biologicaldiversity.org.
13. The California legislature is considering around sixty bills on global warming issues. See www.leginfo.ca.gov.
14. For a description of the suit, see http://www.legalnewsline.com/news/195667
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