Legislating Green: So, You Want to Be Sustainable. Now What?

By: William E. Kelley, Jr., LEED AP BD+C

Spring is in the air, Earth Day is around the corner, and green is on everyone’s mind.  So, let’s suppose that you are a city, town, or maybe even a state looking to encourage green building and sustainable design and construction practices in your jurisdiction.   You have a wide range of options available to you, but your legislative efforts likely will fall into one of two categories: (1) a mandate (i.e., requiring all covered projects to comply with the legislation); or (2) an incentive (i.e., providing some benefit, like tax credits or rebates, to projects that comply with sustainable project goals).  Within these two categories, jurisdictions further have the option of setting baseline requirements for the mandates or incentives with reference to codes (e.g., energy codes, green building codes, the IgCC, etc.), green building rating systems (e.g., LEED, Green Globes, Energy Star, etc.), or green building standards (e.g., ASHRAE 189.1, ICC 700, etc.), all of which have different benefits and potential challenges.

How do you figure out what path is right for you?  It depends on the goals that are you trying to advance in your jurisdiction.  What is it that you are seeking to encourage in your jurisdiction?

  • Universal recycling programs for private businesses and residents?
  • Incorporation of energy efficiency measures in all new construction projects?
  • Developing a mechanism for requiring some level of sustainable retrofits for existing buildings?
  • Encouraging development of alternative or renewable energy sources?
  • Creating a plan to add more bike and pedestrian trails connecting residential developments to local amenities?
  • Finding ways to lower utility bills for publicly owned facilities through system upgrades and facility management procedures?
  • Looking for ways to encourage redevelopment of vacant lots, underutilized buildings, or challenging building sites?

It is easy to get bogged down in the myriad of available options for legislating green, but jurisdictions should first undergo a goal-setting process.  Goals should take on the form of short-term, middle-range, and long-term goals for sustainability.  The goal setting process should also include key stakeholders in the jurisdiction, including internal agencies (e.g., economic development, purchasing departments, facility managers, planning & zoning, code enforcement, etc.), as well as private entities and individuals (e.g., developers, owners, business leaders, contractors, architects and engineers, residents, etc.).  Ideally, those goals should then be incorporated into a “master sustainability” plan, outlining a comprehensive plan for the direction the jurisdiction wants to head on the sustainability front.  A “master sustainability” plan also helps set the stage for identifying how future developments, ordinances, laws, and policies are addressed, and how each of those future items fits into the overall sustainability plan for the jurisdiction.

The idea of beginning with a goal setting process seems basic, but jurisdictions often seem to take the opposite approach, by trying to first legislate green, and then figuring out how that legislation fits into the master plan for the jurisdiction.  While state or local governments may successfully adopt a green building law, the piecemeal approach may leave it without a real vision as to how that legislation fits into the overall development plan for the area.  Further, jurisdictions may be at a loss to figure out how to encourage use of the incentive program or even how to develop a successful enforcement program for mandates, unless there is a comprehensive plan in place.  How will you finance an incentive program?  How will you enforce green building requirements that may not materialize until after project completion?  A little planning can help you effectively answer these questions.

More importantly, without a master plan or vision, how will you know if your sustainability efforts are successful?  The master plan is the key.  With it, jurisdictions can begin evaluating all decisions on future development of the community in terms of how those developments will help reach the desired sustainability goals, instead of taking a piece meal approach to sustainability efforts.  No matter where you are in the process, we can help you navigate the process, assist you in the weighing of the multiple options available, and work with you to evaluate the legal processes, procedures, and considerations involved as you develop your sustainability plan and implement green legislation.

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Daniel M. Drewry

Daniel M. Drewry

Daniel M. Drewry

About This Blog

The DSV Construction Law Blog is hosted by Daniel M. Drewry. Dan is a Partner with the law firm Drewry Simmons Vornehm, LLP and concentrates his practice in the areas of Construction Law and Litigation, and Labor & Employment Law.

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