photo credits
Photo Credit: © Daniel J. Sheridan, 2011. All rights reserved. This is a photograph of the recently constructed Frick Chemistry Building at Princeton University. Sustainable building features include a photovoltaic panel array that generates power while providing shade to the glazed atrium roof, a gray water system to collect and recycle storm water for non-potable uses, and landscaped rain gardens and bio-filtration areas. For more information concerning Princeton's commitment to creation of a sustainable campus environment, visit
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A Conversation at the Crossroads of Law and Sustainability

Second Annual Greenbuild Legal Forum Highlights Unique Challenges and Opportunities for Green Building Lawyers

On Thursday I attended Greenbuild’s second annual Legal Forum, and it did not disappoint.  Organizers Susan Dorn (General Counsel to USGBC) and green building law pioneer Stuart Kaplow assembled an excellent panel to discuss topics ranging from litigation and green construction contracts to the latest insurance products and greenwashing. According to Susan, there are now approximately 1,100 LEED accredited professionals (LEED AP or LEED Green Associate) who now identify themselves as being related to the legal services industry.  Granted, they are not all lawyers in private practice, and there are many more lawyers practicing green building law who are not LEED accredited.  And while the number is modest in view of the total lawyer population in the U.S. (which, according to the American Bar Association, is approximately 750,000), it evidences the growing relevance of this legal specialty.

Leading off the presentations was David Blake of Seyfarth Shaw’s Washington, D.C. office who discussed green building risks, laws and litigation. David offered a concise and informative summary of thirteen LEED-related disputes which have been either decided or filed since 2007. In this wide array of cases, there is an extraordinarily diverse group of claimants, defendants and issues.  Among the cases involving public entities, the primary claims have involved bid protests and challenges to code requirements, whilst private parties have addressed failure to obtain LEED certification, non-satisfaction of LEED standards, additional costs of LEED compliance, and whether and to what extent “green” damages are cognizable and calculable. Clearly representing only the LEEDing edge (sorry, couldn’t help myself) of green building litigation, David’s presentation offered valuable insight into the depth and breadth of affected parties and the diversity and complexity of legal issues unique to green building.

Following David was a great panel discussion of green building construction contracts by Tom Giordano of Lend Lease, Mike Deane of Turner Construction and Dave McPherson of Watt, Tieder Holfar & Fitzgerald. This primary focus was on allocation of contractual responsibility and potential liabilities of owners, design professionals and constructors for achieving identified “green” targets, be they LEED certification, energy efficiency, or some other green building performance metric. Issues such as assigning responsibility (often at the “task” level), waivers of consequential damages (both inside and outside of the government contracting context), and allocation of risk of non-performance were discussed, and helpful examples from actual projects presented. Giordano and Deane both emphasized the necessity of a careful (and sometimes surgical) allocation of responsibilities, as well as a cooperative spirit when negotiating these matters.  In some respects, the discussion echoed several themes identified in Wednesday’s presentation on “Sustainable Building Law” during which Joshua Ballance, Associate Counsel on the American Institute of Architects’ Contract Documents team, provided a helpful overview of the AIA’s Guide for Sustainable Projects (a free download). Rounding out the discussion of transaction and contract issues was Keith Sutherland of Stewart McKelvey, a leading Canadian firm. Stuart covered key “green leasing” issues, with particular attention to Canada’s Realpac Model Green Office Lease. This form, which incorporates a separately negotiated “Environmental Management Plan”, provides a useful drafting approach for incorporating green lease requirements.

Next up was Jeff Lesk of Nixon Peabody’s Washington, D.C. office who discussed legal issues in the context of green building financing.  This guy is not only on top of his game, he has true passion for this stuff. Realistic about the nature of the challenges facing green building finance, including the glaring lack of standards through which the real property appraisal community might quantify the economic benefits and enhanced asset values of green buildings, Lesk focused instead on the availability of a variety of tax credits (and associated monetization schemes) as the best hope for financing green building projects.  Renewable energy tax credits, which in many circumstances can be “bundled” with tax credits for other project attributes (such as affordable housing credits), is often the only way many green projects are realized.  It also accounts for the fact that today so much affordable housing is being built to green standards.  Jeff’s current Holy Grail is an affordable housing project which utilizes wind-based on-site renewable energy. If you have a project that fits this description and needs additional funding, send it his way!

The next two segments of the program shifted back to risk management – and how various insurance products and construction sureties might be used to help bridge some of the unique risk gaps encountered in green building. Keith McGlamery of The McGlamery Law Firm, PLLC described some newly available builder’s risk coverage offered by Zurich, Ace and others for green construction projects. These policy forms (which are often negotiable) offer enhanced coverage for losses resulting from construction delays for the acquisition of special equipment or materials, waste recycling, and loss of tax credits and other financial incentives.  And while no company is insuring that a building will achieve an identified standard or performance level, an AIG affiliate now offers to design professionals “green reputation insurance” which provides limited defense coverage should the architect or engineer be sued if a project fails to achieve a specified standard.  Keith then walked through a hypothetical (that would be the envy of many a law school professor) involving hurricane damage to a green roof.  Think about the doomsday scenarios that were predicted when Hurricane Irene hit Manhattan and all of the sudden none of this sounds much less “hypothetical”.  While expensive, coverage for these kinds of losses is available.  However, project owners must now make sure that their underlying policies cover special risks to green buildings, and obtain a separate “difference in conditions” or DIC policy to cover wind damage from a hurricane. Next up was Edward Lee of Whiteford Taylor Preston to discuss many of the misinformed expectations regarding the role of the construction surety in a green building project.  Ed emphasized that a surety company only guarantees performance by the obligated party (contractor).  It does not guarantee achievement of any performance or construction standard, such as LEED, and should not be relied upon for this purpose. Harking back to the earlier discussion regarding construction contracts and related risks, he reiterated that a surety’s obligations can rise no further than the contractor’s, again highlighting the importance of clearly allocating in the contract documents responsibility for activities related to LEED or similar certifications. Ed also echoed with some dismay the observations made on several occasions by Chris Cheatham in his Green Building Law Update regarding the D.C. Green Building Act, which still contains a performance bond requirement that simply is not offered in the market. This requirement, which amounts to a “forfeiture bond” (like when someone skips bail), will be effective in less than three months.

Up next was Stephen Del Percio of Arent Fox, blogger extraordinaire and publisher of The Green Real Estate Law Journal, who shared an insightful (and entertaining) analysis of greenwashing issues associated with green buildings. First was the news that we will apparently be waiting much longer for final promulgation of the long awaited and now twice-proposed revisions to FTC’s Green Guides.  Steve provided several useful examples of misleading (or potentially misleading) claims regarding the environmental or sustainability features of green buildings, including claims of LEED registration and certification status.  As you may know, it was green building performance claims that were front and center in the  recently decided case of Gifford v. United States Green Building Council.  And there is little doubt that there will be more where that came from.  One very positive outcome of that case (and related media reports) is the extraordinary emphasis now being placed on actual performance of LEED certified buildings. Many of the educational sessions at Greenbuild addressed topics related to green building performance measurement, as well as LEED certification and recertification.

Also making an appearance on behalf of the Canadian green building law community was John Haythorne of Fraser Milner Casgrain LLP.  John observed that, mainly as a result of a well-defined public-private partnership finance structure, the certification and performance risks which were discussed at great length by the U.S. based panelists are managed and allocated in a more straightforward manner in Canada.  In John’s recent experience, much greater emphasis is placed on long-term building lifecycle risk, especially those related to either product or materials failure associated with green building components, not unlike the claims being litigated in The Chesapeake Bay Foundation, Inc., et al. v. Weyerhauser Company, which is scheduled to go to trial next month. It was helpful to gain the Canadian perspective.  Maybe we could learn a thing or two from our very hospitable friends north of the border, eh?

Rounding out the presentation was Stuart Kaplow of Stuart Kaplow, P.A. and its consulting affiliate, Ajhon.  With due apologies to Letterman, Stuart presented his “Top 10” list of what green building lawyers can and should do to help move the industry forward.  In particular, he emphasized the “internationalization” of LEED and stressed the level of opportunity this has created for U.S. based legal professionals.  He also suggested that lawyers consider leveraging their talents through non-traditional business vehicles, such as consulting practices, noting that his business has experienced explosive growth by performing services through a “non-legal” affiliate.

So there you have it folks. While green building law has made great strides in the past few years, there is a sense that we are still only at the beginning, and many growing pains are yet to be endured.  Green building lawyers are presented with ongoing opportunities to shape and influence the direction of this industry, and perhaps do a little good along the way, a unique advantage not enjoyed by most of our colleagues.  I hope to see many more of you at Greenbuild 2012 in San Francisco next November.

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Green Jobs Forum Makes Greenbuild Debut

Greenbuild 2011, the tenth annual U.S. Green Building Council’s premiere educational event and product expo, got underway yesterday in Toronto.  I must say it’s impressive.  Attendance is nearly eight times that of the inaugural event in 2002, and the number of exhibitors has increased fourfold.  If anyone still thinks green building is a passing fad, they should get on a plane and come to Toronto. Corporate event sponsors from industry powerhouses such as Kohler, Hermann Miller and Steelcase and participating industry partners such as BOMA and the World Building Council for Sustainable Development reinforce the sense that this movement has truly come of age and is here to stay.

I’m not really the intrepid reporter type, but since I am here I thought I would share some of the highlights from the conference. I haven’t (yet) figured out how to be in several places at once, so I can share only about those sessions I attended.  For those of you interested in keeping up with other Greenbuild news, check out the posts under Twitter hashtag #GBNEXT .

This year marked the addition of a new Greenbuild program: The Green Jobs Forum.  Kimberly Lewis, VP of Conferences and Events for USGBC, received  well-deserved kudos from Rick Fedrizzi (Founder and Co-Chair of the USGBC) and others for launching this program and for keeping the issue of green jobs front and center.  Fedrizzi kicked off the opening session of the forum with a dual message.  First, he firmly rejected the current political paradigm that pits economic growth against environmental stewardship. Second, he implored forum attendees to have a “bias toward action”, and cited as an example former President Clinton who, according to Fedrizzi, was relentless in his drive for results over commitments at last month’s annual meeting of the Clinton Global Initiative.  Fedrizzi’s sentiments were echoed and expanded upon by Bracken Hendricks, Senior Fellow at the Center for American Progress, a Washington think tank which co-sponsored of the forum.  The opening session also featured presentations by Michael Thompson, Councillor of the City of Toronto, Ken Neumann, National Director of the United Steelworkers Canada, Robert Peck, Commissioner of the Public Buildings Service of the U.S. General Services Administration, and Dan Esty, Connecticut’s Commissioner of Energy and Environmental Protection and author of the book Green to Gold. Peck made an interesting observation about the “green jobs” label itself, and predicted that within five or six years the label will become less and less relevant as familiarity with sustainability and green building concepts become necessary core competencies across the entire real estate and construction  industries.  Esty highlighted Connecticut’s approach to financial support for development of sustainability technologies and green building, an approach that does not pick winners or losers, but creates opportunity for as many ideas as possible.  According to Esty, markets, not governments, are much better equipped for the task of determining winners.  To implement this approach, Connecticut recently launched the nation’s first Green Bank, which has been hailed as a true innovation in the sphere of public-private financial cooperation to support the development of green technologies and industries. Esty also laid down his own challenge to industry: focus on the problem to be solved, and don’t presuppose that existing solutions are the only answer. People want cold beer and hot showers – not fridges and hot water heaters. Now there’s a man with his priorities in order!

Following the opening session, there were several breakouts.  The first one that I attended was entitled “Moving Investment Capital – Commercial Real Estate Finance and the Green Economy”.  This terrific panel which was moderated by Ashok Gupta of the Natural Resources Defense Council, included Duane Desiderio, VP and Counsel of the Real Estate Roundtable, Bob Hinkle of Metrus Energy, Claire Broido Johnson, GM of Serious Energy Capital, and Maria Vargas, Deputy Director of the U.S. Department of Energy’s Office of Systems, Analyses and Planning.  Desiderio led off the panel with a discussion of current Roundtable initiatives to improve government support for green building by, among other things, expanding the availability of the current 179(d) tax deduction to include existing buildings, and by urging changes to the current DOE loan guarantee program (yes, the same one involved in the Solyndra debacle) to emphasize retrofits, not just new technologies.  Next, Johnson and Hinkle each described new models for financing energy efficiency improvements offered by their companies.  While the models have some similarities, they are both innovative entrants to the market previously monopolized by Energy Service Companies (ESCOs).  Both emphasized flexible, deal by deal underwriting which is “supplier agnostic”, distinct advantages to the ESCO model.  The goal of these product offerings is to solve the internal hurdles faced by key decision makers inside of any enterprise (most notably, capital commitments), and drive broader market penetration for these types of deals.  Finally, Director Vargas described DOE’s Better Buildings Challenge, and articulated the Department’s ambitious goal of improving energy efficiency in commercial buildings by 20% by the year 2020, generating over $40 billion in annual energy cost savings. During the Q+A, yours truly posed a question about driving energy efficiency retrofits into the mid and lower ends of the commercial real estate market.  All of the panelists expressed some dismay at the pace of progress in these market sectors, and mentioned some of the structural barriers with which we are all familiar, including non-aligned lease arrangements, an appraisal community ill-equipped to handle green building
valuation, and general market ignorance, malaise or both. However, there was clear recognition that these all are solvable problems, and that persistent outreach and education from the green building community will be key to eventual success in these market sectors.

The final breakout session I attended, entitled Understanding the Performance of the Green Building Economy, featured an equally impressive panel moderated by Chris Pyke of the USGBC, including Jonathan Flaherty of Tishman Speyer, Timothy Howell, Vice President of Sustainability for Ecological, Mike Zatz, Manager of USEPA’s Energy Star Portfolio Manager, and Bill Sisson, Director of Sustainability at United Technologies Research Center.  The focus of the panel was benchmarking of energy performance and transparency and disclosure of performance data, an issue I addressed in an earlier blog post in the context of the ASTM’s recently promulgated standard on building energy performance assessments. The discussion was lively and informative, and addressed many of the challenges posed by New York City’s ordinance that mandates disclosure of energy performance data for commercial buildings containing at least 50,000 gross square feet. Leasing was again discussed as a primary topic of concern, especially in the context of multi-tenant facilities.  But all panelists agreed that the pent up demand for energy efficiency modeling, benchmarking and improvement is both real and large, and will be the source of a great many new jobs.  As one of the panelists noted, if you have a child going off to college and thinking about engineering, this is a great career opportunity.

Although I learned much, my biggest takeaway from the green jobs forum is that the participants in the green building movement are not concerned solely with creating the next architectural wonder or “net zero” carbon emission buildings.  No, there are many smart and devoted people who care deeply about the employment and other challenges that we now face as a nation, and who are working diligently to unleash the full economic power of green building to help us face those challenges.  Soldier on, good people!

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Access to financing continues to challenge the green building movement. The Environmental Defense Fund provides an excellent discussion of these challenges in its recently released whitepaper entitled Show Me the Money – Energy Efficiency Financing Barriers and Opportunities.  Overcoming these challenges over the long term will require sustained commitment by the lending and appraisal communities, among others.  There are, however, three recent developments specifically addressed to the issue of green building and energy efficiency financing which signify some positive movement.

The first of these is the launch on May 31 of an energy efficiency improvement initiative coined “Green Refinance Plus”.  The program, jointly administered by FHA and Fannie Mae, aims to make available additional financing proceeds to owners of older multi-family affordable housing properties to support the installation of green systems and appliances.  The goal of the program is to reduce both energy use and greenhouse gas emissions and generate contemporaneous savings on utility bills. Read the rest of this entry »

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Green Building and Carbon Offsets – A Missed Opportunity?

Like many other New Jersey business people and professionals who have spent the better part of their careers working in a state known for its progressive environmental policies, I was surprised by the recent announcement that New Jersey would withdraw from the Regional Greenhouse Gas Initiative, or RGGI, at the end of 2011.  And as I have reviewed the policy debate surrounding this decision, I am again puzzled by our (collective) resistance to policies and programs that attempt to impose real economic consequences associated with our energy choices.  RGGI is a cooperative 10-state “cap and trade” arrangement through which regulated power sources  in these states (i.e. those with a generating capacity of 25 megawatts (MW) or greater) are required to hold RGGI-auctioned carbon allowances equal to their anticipated CO2 emissions over a three-year period.  The agreed “cap” is a 10% reduction from 2005 levels of CO2 emissions by the end of 2018.  The allowances can be “traded” by the regulated sources, and can be used across state lines (i.e. allowances are valid in any participating state, not just the state from which it was initially auctioned), thus creating a “single regional compliance market” for CO2 emission targets.

In his statement announcing the withdrawal, Governor Chris Christie conceded that “it’s time to defer to the experts” on the issue of human contribution to global
warming (a welcome departure from his previous statement which seemed to question the validity of the scientific community’s consensus on this point).  He nonetheless concluded that RGGI was “ineffective” in reducing greenhouse gas emissions and is “unlikely to be [effective] in the future.”  The metric he cited in support of this conclusion is the relatively low price of carbon allowances auctioned through RGGI ($2.00 per ton, in contrast to the projected price of $20-$30 per ton when New Jersey initiated its participation in the program). Because of this, “RGGI does nothing more than tax electricity, tax our citizens, tax our businesses, with no discernable or measurable impact upon our environment.”  While there is lingering debate about the causes of the low price (most often attributed to the slow economy and the increased reliance on natural gas) and the relative benefits of participation in RGGI, it is worth noting that even with the crash in carbon allowance prices (at the most recent auction only 30% of available allowances were actually purchased, all at the reserve price of $1.89 per ton), as of this past February, the RGGI participating states have raised over $885 million to fund other strategic energy programs.

One of the additional benefits initially touted for participation in RGGI was the availability of “offsets” through which regulated power plants could meet up to 3.3% of their total compliance obligations “outside of the energy sector”.  There are six categories of potentially qualifying offset projects, one of which is
“energy efficiency” i.e. the “reduction or avoidance of CO2 emissions from natural gas, oil or propane end-use combustion due to end-use energy efficiency in the building sector” .  When Maryland joined RGGI, Stuart Kaplow was enthusiastic about the potential benefits of this offset category to the green building sector, but correctly cautioned that “the efficacy of green building as an offset will depend heavily on yet to be issued state regulations.”  In fact, it does not appear that a single RGGI participating state has developed implementing regulations to support this (or any other) category of CO2 offset.  I can only assume that the primary reason for this is that the overabundance of allowances at (relatively) low cost creates no real economic incentive to pursue offsets as an alternate compliance path.  In other carbon trading markets in which green building offsets are recognized and utilized, there is the additional challenge of verification.  As Shari Shapiro aptly noted more than a year ago, “[n]othing will erode the credibility of a cap-and-trade system faster than discovering that the carbon offsets at the base of the market are fraudulent.”

Of the many perceptions about green building, “increased cost” is perhaps the most pervasive. While those of us conversant in the jargon can quickly launch into a discussion of “life-cycle cost assessment” and “triple bottom line” benefits, the reality is that, for much of the real estate market, “green building” are bad words.  Accessible funding mechanisms to defray increased up-front costs (real or imagined) are necessary to continue to drive the green building movement into new market sectors.  Government funding constraints will continue to inhibit even the most laudable of sustainability goals.  Carbon offsets, however, offer a potential market-based funding mechanism that, if properly implemented, could generate millions to fund green construction. Verification will continue to be challenging, but throughout the sustainability industry new processes, standards and tools are developed on an almost daily basis that can provide a sound framework for audit and verification.

The very existence of a carbon offset market relies upon mandatory carbon emission caps.  While RGGI may not be right for New Jersey, there must be some recognition by our policymakers that it will take money to move us to a renewable energy future.  The current political and fiscal climate seems to facilitate a great deal of foot-dragging, even in the face of ever more convincing scientific evidence that the longer we persist in our energy profligacy, the more challenged the world’s resources will become for future generations.  It’s time to be creative in our approach, and to take advantage of the tools at our disposal.  Are carbon offsets a missed opportunity for green building?  You be the judge.

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Building Energy Performance: The New Frontier of Transactional Due Diligence (and Contractual Liability)

The American Society for Testing and Materials (ASTM) recently published its much heralded Standard Practice for Building Energy Performance Assessment for a Building Involved in a Real Estate Transaction E-2797-11 (the “Standard”) in response to the perceived market need for a uniform methodology for evaluating energy efficiency in buildings.  The Standard is available for purchase and download here.  The Standard defines a careful process through which a “qualified Consultant” collects and analyzes “energy use” information, and specifies the format in which various “findings” are reported, the most relevant of which are (i) “pro forma building energy use” (reported in kilo (103) British thermal units (kBtu) per year), (ii) “energy use intensity” (reported in kBtu per square foot), and (iii) “pro forma  building energy cost” (reported in US Dollars ($) per year and $ per square foot per year).  The stated (and laudible) objectives of the Standard are to

(1) define a commercially useful practice for collecting, compiling, and analyzing building energy performance information associated with a building involved in a commercial real estate transaction; (2) facilitate consistency in the collection, compilation, analysis, and reporting of building energy performance information as may be required under building labeling, disclosure, or mandatory auditing regulations; (3) supplement as needed a property condition assessment conducted in accordance with Guide E2018 or an environmental site assessment conducted in accordance with Practice E1527; (4) provide that the process for building energy performance data collection, compilation, analysis, and reporting is consistent, transparent, practical and reasonable; and (5) provide an industry standard for the conduct of a BEPA [building energy performance assessment] on a building involved in a commercial real estate transaction, subject to existing statutes and regulations which may differ in terms of scope and practice.

The Standard references and in some respects parallels the Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process (E1527), the ASTM’s effort to standardize the practices and procedures that satisfy the “all appropriate inquiry” element of CERCLA’s innocent landowner defense.  Having witnessed the evolution of environmental due diligence from the mid-1980s through the present, and the concomitant expansion in breadth and depth of contract representations, warranties and indemnities specifically addressed to environmental concerns, I cannot help but wonder when green building and energy efficiency issues will find their way into standard “due diligence” checklists and definitive agreements for corporate mergers and acquisitions transactions. Not long, I suspect. Read the rest of this entry »

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Among the many significant changes under LEED v3 was the inauguration of the Existing Building Operations and Maintenance (EBOM) standard designed to certify the sustainability of ongoing operations of existing commercial and institutional buildings, and to encourage building owners and tenants to implement sustainable practices and reduce environmental impacts over a building’s life cycle.  EBOM is a welcome development from several perspectives, including the fact that it implements measurement standards that actually can document whether or not a building has lived up to its “design” potential. It also creates a path toward green building certification for owners and tenants of existing buildings willing to make the requisite investments.

Notice that I said “owners and tenants”, not “owners or tenants”.  Leased buildings that already are occupied present significant challenges to parties wishing to pursue LEED EBOM.  Because the EBOM standard can be achieved only for an entire building, occupants of at least ninety percent (90%) of the total square footage must agree to be part of the certification process.  For owner-occupied and single tenant buildings, this is not a major hurdle, but for multi-tenant facilities, the challenges can be substantial, especially if the existing leases do not provide a process allocating costs and benefits associated with “greening” the premises.

The old “triple net” paradigm under which building owners absorb up-front capital costs and tenants pay ongoing operating costs does not square with the lifecycle cost assessment paradigm employed under LEED.  This could leave a landlord in the position of making substantial capital investments (for example, in a more energy efficient HVAC system) that reduces the tenant’s operating costs yet does not allow the landord to share in that benefit.  These are not simple issues to negotiate mid-way through the term of a lease.

If both a landlord or tenant wish to consider a plan for achieving EBOM certification, step one is a careful review of the underlying lease and identification of those provisions that may require adjustment to accommodate an effective EBOM certification process.  These would normally include provisions covering the characterization and allocation of building operating expenses, provision of building services, including utilities and cleaning, tenant alterations and improvements, and building rules and regulations.  There are several useful starting points when considering potential approaches to these issues, including BOMA’s Guide to Writing a Commercial Real Estate Lease, Including Green Lease Language (available for purchase here), REALPac’s Office Green Lease National Standard (available for download here), the Corporate Realty, Design and Management Institute’s  Model Green Lease (available for purchase here), and the USGBC’s Green Office Guide (available for purchase here (under LEED Integration Guides).   While all of these publications have useful and thought-provoking approaches to common green lease issues, they all share in common one key advantage:  a clean slate. Read the rest of this entry »

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Green Remediation and Green Building – Is There a Connection?

In September, 2010, the USEPA published its “Superfund Green Remediation Strategy”, the purpose of which is to reduce the environmental footprint associated with cleanup actions by reducing greenhouse gas emissions and other “negative environmental effects” of environmental remediation.  You can view the principles here: and New York are among a variety of States that have announced policies favoring green remediation.  In a recently circulated “interested party draft” of its proposed rules relating to the Administrative Requirements for the Remediation of Contaminated Sites, the New Jersey DEP has taken the further step of  defining “green remediation” as the “practice of considering all environmental effects of the remediation and incorporating options that maximize the net environmental benefit of cleanup activities.”  Unfortunately, at this drafting stage, the regulations do not incorporate the definition into any substantive or operable provisions, leaving it more or less in “orphan” status.

The movement towards green remediation is a welcome development.  But where does it fit into the overall scheme of green building?  Within LEED v3 for New Building Construction and Major Renovation, there is one credit available for brownfields redevelopment, and another for “protecting or restoring habitat” (also a primary goal of green remediation).  Obviously, not every remediation project is a development project, but many are (or someday could be).  So, in addition to the regulatory mandate for green remediation, creation of additional development incentives in the form of available LEED credits for employing or selecting green remediation options could be created.

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Do We Really Have a Choice?

As I write this first post to LegallyGreen, I am at once awestruck and humbled by the convergence of forces shaping our future.  In recent weeks we have been reminded of the limits of technology in the face of great natural disaster along the northeast coast of Japan, and of the fragility of fossil fuel supplies in the face of social revolution in the Middle East (much of which ironically can be credited to the proliferation of social networking, a phenomenon with distinctly Western roots and grounded in Western ideals).  We are about to mark the first anniversary of the oil spill disaster in the Gulf of Mexico, and the tenth anniversary of the attacks of 9/11.

Yet in the face of these events, we have and continue to march forward. The Enron scandal ushered in an age of “corporate social responsibility” in which companies have been challenged to re-evaluate the core capitalist principles of shareholder value.  The United States Green Building Council (“USGBC”), which was founded barely 18 years ago, recently released the third itieration of its much-touted “LEED” green building standard.  Investments in “clean” and “green” energy sources (yes, there is a difference) continue to grow even in the face of the international community’s inabilty to develop a clear concensus on greenhouse gas reductions.  And lest anyone doubt the money and momentum behind this movement, according to a recent report in, 2010 saw a 170% increase over 2009 levels in clean tech patent applications.

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