Green building emerged as somewhat of a proactive or “feel good” movement. While some may dismiss “green” as a passing trend, regulators from local to federal levels are creating laws and regulations that will ensure green building is around to stay for at least the near future. Perhaps most significantly, recent EPA action will regulate nearly every commercial building by 2016.
Probably the most established and best known of the standards used for green building is the Leadership in Energy and Environmental Design (LEED) standards. Instituted in 2000 by the U.S. Green Building Council (USGBC), the LEED system awards credits for buildings based on certain factors in specified categories. Based on the number of points earned, a rating level is awarded. This is a voluntary system. A building owner applies to obtain this certification.
International Green Construction Code
Currently, most building codes do not address energy and water issues, material waste, impact on construction sites, and other environmental concerns. In fact, some building codes are so outdated they restrict advances in green building.
To address the issue and to avoid patchwork regulations, a coalition of building standards organizations have united to create a draft International Green Construction Code. The first draft was released in early 2010 and will be final by early 2012. The uniform code will make it easier for municipalities, especially smaller ones, to adopt comprehensive and functioning green building codes.
State and Municipal Regulations
A variety of states and municipalities have started to require some green or sustainable construction on both new projects and remodels. California has created its own standards with the CalGreen regulations. Utah and Arizona, among other states, have adopted requirements that certain public buildings comply with some level of LEED certification.
The regulations are a potpourri of forms and functions. Some regulations only apply to public buildings, while others apply to both public and private buildings. About 40 percent only apply to new construction while the other 60 percent apply to existing buildings. Notably, a handful of regulations apply to existing buildings on which no construction is occurring.
The majority of states and municipalities use the LEED system as a guide. LEED is an easy choice because it offers an established set of standards to entities without the manpower or expertise to create their own. Once the green code is finalized, regulators will likely shift away from regulatory reliance on LEED and use the code instead.
EPA Regulation of Buildings
Standard commercial buildings were not historically subject to significant regulation under the Clean Air Act. Rather, the Clean Air Act was generally regarded as a regulation that applied more to industrial and manufacturing facilities.
Recent EPA action and rule making will, unless modified or limited, make standard commercial buildings of approximately 25,000 square feet and greater subject to permitting requirements under the Clean Air Act by 2016. The expansion stems from a 2007 United States Supreme Court Decision and subsequent regulatory action making greenhouse gas (GSG) emissions subject to regulation under the Clean Air Act.
Understanding the scope and impact of the regulations is technical to be sure, but the force and effect will be significant. Buildings subject to the Clean Air Act require:
(a) a permit setting forth emissions limitations
(b) facility review and public hearing
(c) best avaliable control technology to limit each pollutant subject to regulation.
Given the time, expense, and delay of getting PSD permits under the Clean Air Act, without mitigating action, the Clean Air Act process would virtually halt construction and development—pending compliance with the regulatory process. Absent congressional action, which does not appear to be forthcoming, the issue will be resolved in the courts and through the EPA for now.
Melissa A. Orien, Esq. is a LEED AP with Holland & Hart LLP.