Strengthening States' Authority To Enact Tougher Green Building Standards

Treehugger has an article identifying 7 executive orders which Obama should sign to protect the environment.

The one which interested me calls for protecting stronger state laws from weaker federal ones

The next President should [...] should amend the existing Executive Order on Federalism to strengthen provisions setting forth a presumption against preemption; require agencies to provide a written justification for preemption; and require that, when a federal statute allows states to adopt more stringent standards or seek a waiver of statutory preemption (as in EPA's denial of California's Clean Air Act waiver), agencies must provide a written justification to the White House before denying the state's regulatory authority or waiver request. As is the case with the existing Executive Order on Federalism, these recommendations are consistent with the goals of the various statutes under which the environmental, safety, and public health agencies operate, including the National Environmental Policy Act.

The preemption issue has proven to be extremely significant in green building regulatory challenges. In AHRI v. City of Albuquerque, we saw an effective challenge to Albuquerque's green building code based on weaker federal energy standards for HVAC equipment. See my post here for more on the AHRI v. City of Albuquerque case.

However, an executive order will not go very far to prevent federalism challenges to green building regulation. For example, it would not have effected the challenge to Albuquerque's green building code because 1) the City of Albuquerque never applied for a waiver, so the executive order would not have applied in that case, and 2) Congress specifically preempted state regulation of energy efficiency of HVAC equipment.

See related posts on green building law and federalism here

Consumers Coming On Board

Interesting post on Consumers Buying Into Sustainability
on Bulider Online. Builder Online reports that "energy efficiency" garnered an 88 percent favorability rating among consumers. This reflects, I believe, a growing opportunity for green buildings to command higher rents and be more robust in a declining real estate market.

Interesting Green Leasing Post

http://sustainable.bizjournals.com/green/Possibilities_to_think_over_when_negotiating_a_green_lease.html

List of Green Regulations

I found a neat resource from the AIA trust--a list with links to all nationwide green building regulations. http://www.theaiatrust.com/goinggreen/2008GreenPaperAppendixA_CurrentSustainabilityLaws.doc

The Value of Density

Two articles this morning brought to mind the the classic urban theory that the density of urban environments creates cross-pollination and agglomeration benefits. GreenBuildingsNYC had an article about four closely located green businesses in New York City's Lower East Side http://www.greenbuildingsnyc.com/2008/03/05/the-lower-east-side-nyc%e2%80%99s-emerging-green-retail-district/ and another about a proposed green industrial park http://www.greenbuildingsnyc.com/2008/02/29/new-york%e2%80%99s-first-green-industrial-park-breaks-ground-on-long-island/ .

Essentially, the argument goes like this--cities are places where people are densely packed together. As a result of the clustering of people and businesses, innovation increases and there is a benefit in human capital externalities (ie more businesses, more jobs, more money, etc.). If it all seems a bit esoteric, think about fashion. You can get a lot more ideas about what to wear to work on the subway in New York City than alone in your car on a suburban commute.

The same concept should work with green businesses and green building--the more of these entities grow up in a small geographic region, the better they will be able to feed off one another and innovate. This is a good argument for local government incentives to stimulate green building and businesses. One green building is good, but a cluster of greeen buildings with workers in green businesses will foster more carpools, more sharing of ideas, more emulation--in short more innovation which will lead to the afforementioned human capital externalities. With the growing concerns over a faltering economy, fostering dense clusters of green innovation is one way to combat the tide.

Title IX of the House Energy Bill--The Green Building Provisions

I have spent the last few days parsing the hideously convoluted legalese which is Title IX--Energy & Commerce of the House's recently passed--and much touted--Energy Bill, which I wrote about generally earlier in the week. http://greenlaw.blogspot.com/2007/08/at-long-last-energy-bill-post.html

Title IX contains most of the provisions related to green building. Below is a non-comprehensive tour through some of the provisions of interest to me.

Sections 9001-9020 relate to the energy efficiency of appliances, raising the required energy efficiency for dehumidifiers, washing machines, dishwashers, refridgerators, etc.

Sections 9021-9030 relate to energy efficiency of lighting. There is some neat provisions in this section, including 9021 which requires the Secretary fo Energy to issue regulations prohibiting the sale of 100 watt general service incandescent lamps after January 1, 2012, and specifying ever increasing efficiency ratings for other lamps. However, three way lamps are exempted from the requriements. I have a problem with this--many, many lamps are three-way. What is the point of this exemption? Is there a three-way lamp lobby? Section 9023 mandates the use of energy efficient lighting fixtures and bulbs by the Federal government.

Sections 9031-9040 relate to residential building efficiency. Section 9031 requires states to update their building codes to be more energy efficient. THIS IS A BIG DEAL! It provides funding, support, etc. for the states to do so. Section 9034 provides additional financial assistance to consumers for home weatherization.

Sections 9041-9060 relate to commercial building efficiency. Section 9042 establishes an Office of Federal high-Performance Green Buildings to, among other things, coordinate the green building activities in various Federal agencies, identify and develop Federal high performance green building standards to be used for Federal facilities and research budget and contracting practices that affect achievement of green buildings. In an effort to employ more of us green-building types, Section 9043 establishes an Office of Commercial High-Performance Green Buildings. This Office is tasked with managing a public-private partnership program (Section 9043 (f)) which shall, among other things,further development of green buildings, study and refine a national goal to reduce commercial building energy use (Section 9044), and create a national high-performance green building clearinghouse of information. Sounds like a nice job, perhaps they will hire me. Section 9052 provides up to $100,000,000 for loan guarantees for renovation projects that will result in a building achieving LEED "certified" level. Several other provisions in these sections provide funding for the establishment of various green building pilot programs.

All in all, there are many good-sounding programs in Title IX, but we shall see what remains when the House and Senate bills are reconciled.