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Will New Green Building Codes Supplant LEED Rating?

By Marilyn Sticklor
May 2010
Practice: Green Business, Real Estate
People: Matthew J. Kiefer, Marilyn L. Sticklor

Earlier this year, the International Code Council (ICC) and the American Society of Heating Refrigeration and Air-Conditioning Engineers (ASHRAE) each published model codes that set objective, mandatory standards for sustainable development.  State and local governments may come to adopt these or similar model “green building codes” rather than referencing the popular LEED building rating systems in their zoning and building codes.

LEED Certification Has Been a Market Standard but Was Never Intended to Serve as a Governmental Code.

The Leadership in Energy and Environmental Design (LEED) rating systems published by the non-profit U.S. Green Building Council (USGBC) have become a de facto market standard for green building in the U.S.  All projects must meet certain minimum requirements and can achieve different levels of certification based on “credits” within multiple categories, ranging from credits for optimized energy performance, which is measured objectively, to innovation in design, a more subjective category.

USGBC officials acknowledge that LEED was never intended to serve as a code for governments to regulate building performance.  Nevertheless, in the absence of a common regulatory standard for “green building,” several major U.S. cities, such as Boston and San Francisco, have incorporated LEED by reference in their zoning or building codes.

Completing the LEED certification process, or even just completing a LEED checklist as Boston requires, can be expensive and time-consuming.  Despite severe economic pressure and skepticism about the pace and causes of climate change, 92% of respondents to the 2010 Green Building Survey felt that it is worth the time and effort to build green projects.  Yet, only 62% thought that LEED certification was worth the time and effort, down from 77% two years ago.

Green Building Codes Are Emerging as Regulatory Tools.

New regulatory tools are emerging, suitable for incorporation in building codes.  The International Code Council (ICC) has developed a new model code called the International Green Construction Code (IGCC), issued in March 2010 (http://media.iccsafe.org/IGCC/docs/IGCC-Synopsis.pdf ). 

The IGCC meshes with ICC’s other model codes, including the International Energy Conservation Code (IECC), which has been adopted in some form by most U.S. states.  To regulate energy use, the IECC regulates building shell, windows and doors, heating ventilation and air-conditioning, and electrical power and lighting systems.  In contrast, the IGCC, like LEED, addresses non-energy issues, such as the use of water, indoor environment quality, and reduction in greenhouse gas emissions.

Just as one path to compliance with the IECC is through adherence to ASHRAE’s Energy Standard for Buildings Except Low-Rise Residential Buildings (Standard 90.1), compliance with the IGCC is also possible by adhering to an ASHRAE model code, Standard for the Design of High-Performance, Green Buildings (Standard 189.1) (http://www.ashrae.org/publications/page/927), which was released by ASHRAE shortly before of the release of the IGCC.

No jurisdictions so far appear to have adopted the IGCC or ASHRAE Standard 189.1.  However, California has incorporated similar green building standards in its building code effective 2011, through adoption of the 2010 California Green Building Standards Code (CALGREEN).  In addition to regulating energy performance, CALGREEN requires a 20% reduction in indoor water use, diversion of at least half of construction waste from landfills, and the use of low-pollutant emitting interior finish materials.  In this way, while it is less exacting than the IGCC and ASHRAE Standard 189.1, CALGREEN covers nearly as broad a field as LEED in the form of a mandatory state code.

Will There Be Coexistence or Forced Obsolescence?

ASHRAE, the ICC and the USGBC worked together to develop both the IGCC and ASHRAE Standard 189.1, and USGBC already uses ASHRAE standards in LEED.  All three groups assert that the new green building codes will complement the LEED systems, not compete with them.  For their part, USGBC officials describe the IGCC as setting a higher regulatory “floor” for green buildings that allows USGBC to continue to raise the “ceiling” through LEED.

If green standards are incorporated in building codes, agencies and applicants alike will be able to apply objective, enforceable standards, administered through governmental processes, rather than relying on private third parties that are not subject to due process requirements.  There may also be a benefit in having the green building requirements certified at the stage of building permit issuance, rather than at project completion, as is the case with LEED certification.

However, the new green building codes may also impose additional burdens and requirements on property owners which are not currently imposed.  Although many major cities already reference LEED for major project approvals, on either a mandatory or elective basis, until California’s adoption of CALGREEN there had been no requirements imposed statewide.  Green building codes are designed for widespread adoption, and could impose statewide requirements.

The authors are members of the Real Estate and Green Business groups.  For questions about the information contained in this advisory, please contact your usual Goulston & Storrs attorney or any of the following attorneys:

Matthew J. Kiefer
(617) 574-6597
mkiefer@goulstonstorrs.com

Marilyn L. Sticklor
(617) 574-4077
msticklor@goulstonstorrs.com

This advisory should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer concerning your situation and any specific legal questions you may have.

Pursuant to IRS Circular 230, please be advised that, this communication is not intended to be, was not written to be and cannot be used by any taxpayer for the purpose of (i) avoiding penalties under U.S. federal tax law or (ii) promoting, marketing or recommending to another taxpayer any transaction or matter addressed herein.

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