This post is the second in a five part series on green building regulation looks at how green building regulators can avoid problems down the line if they establish regulations that have a clear intent, evaluate extreme outcomes, carefully analyze utilizing third party green building criteria and certification systems, create measurement and verification mechanisms, develop valid enforcement mechanisms, check for state and federal preemption, and anticipate litigation.
1. Have a clear intent
In Going by the Book, authors Eugene Bardach and Robert Kagan state, “A regulation requirement is unreasonable if compliance would not yield the intended benefits…” In other words, a regulation should have a clear intent–like increasing the number of high performance buildings or reducing greenhouse gas emissions or improving indoor air quality–and compliance with the regulation should acheive the intent.
2. Evaluate extreme outcomes
Las Vegas instituted a tax cut for green buildings so sweeping and easy to qualify for that it threatened to cut a giant hole in the state’s budget. In planning regulatory mechanisms, regulators must look at a likely scenario of compliance and an extreme case to ensure that all outcomes are considered, and the extreme case is prevented.
3. Carefully analyze utilizing third party green building criteria and certification systems
Many local governments incorporate third party green building criteria (and in some cases, certification) like LEED, NAHB-Green, Green Globes, etc. as the core of their green building regulations. I will do a full post on this topic as part of this series, but regulators need to examine the pros and cons of choosing a third party system as a component of their regulations.
4. Create measurement and verfication mechanisms
In conjunction with point number 1 above, compliance with the regulations should be measurable and verifiable. Looking to decrease greenhouse gas production? Require reporting on energy usage. Looking to increase green buildings in your municipality? Require receipients of tax credits to indicate what green components the credit enables them to add that they would not have done in the absence of the credit.
5. Develop valid enforcement mechanisms
Washington DC has come under major criticism for requiring a performance bond which is forfeited in the event that a building fails to comply with the green requirements of the DC green building act. Essentially, this is not what a performance bond has traditionally been used for, and the surety industry has expressed significant concerns over providing bonds for this purpose. Another mechanism DC could have used was to levy fines, or withdraw (or refuse to issue) occupancy permits, if the project did not meet its green requirements.
6. Check for state and federal preemption
Last year, the HVAC industry associations sued the City of Albuquerque to prevent the city’s green building code from taking effect. They argued that the energy efficiency requirements in the green building code was preempted by federal standards for HVAC equipment. In the course of the litigation, it came out that the city attorney had not checked for federal preemption.
In addition to federal standards, many states have state-wide building codes which may preempt local municipalities’ ability to require construction to conform to more stringent standards.
7. Anticipate litigation
The first environmental legislation was passed in the early 1970s. There is still litigation on the interpretation of sections of the Clean Water Act and the Clean Air Act. The purpose of the judiciary is to interpret and clarify regulations, and this process is a normal part of new regulatory schemes
Check out part one of the Regulating Green Building Series: Rules For Sound Green Regulations, which looks at the anatomy of green building regulations identifying three main types of regulations, which are command and control, in other words building codes and such; financial incentives, like tax breaks; and non-financial incentives such as increases in floor to area ratio, building height or density for building green.
© 2011, Tracey de Morsella. All rights reserved. Do not republish.