Trends in sustainable building standards

Many contractors are familiar with the term “LEED,” and even if they don’t know anything about the specifics of LEED, or exactly what a LEED construction project entails, they generally understand that LEED projects involve sustainable (“green”) design and construction practices that are intended to improve occupant comfort and reduce the impact of a construction project on the environment. What contractors may not know, however, is that LEED is not the only set of sustainable building standards — certain states and local jurisdictions are adopting their own green building standards and codes.

LEED stands for “Leadership in Energy and Environmental Design.” In general, LEED consists of various sets of sustainable building rating and certification standards for the design and construction of commercial and residential buildings, schools, hospitals, neighborhoods, retail projects, retrofits and tenant improvements.

LEED is administered by the U.S. Green Building Council. The USGBC utilizes a “consensus-based, market-driven approach” in establishing and revising its rating standards. In other words, design, construction, and engineering professionals work together in an effort to develop the ‘gold standard’ for sustainable building criteria, keeping market demands and limitations in mind. The Green Building Certification Institute (GBCI), an affiliate of the USGBC, administers project certification and accreditation of LEED professionals. Both the USGBC and the GBCI are private entities that are not associated with any governmental agency.

Nevertheless, numerous governmental agencies, including the federal General Services Administration (which owns or leases in excess of 350 million square feet) have expressly adopted LEED as the required building standard for new construction, tenant improvements, and/or retrofits. Thus, contractors who perform work on such projects must either have an in-depth understanding of the relevant LEED standards, or contract with consultants who have such an understanding.

LEED has its drawbacks, however. From a legal perspective, one of the most important of these is that the LEED rating systems do not constitute legal building codes, and the USGBC does not want (and did not intend for) its rating systems to operate as such. Moreover, because the USGBC sets its standards without governmental input, they have the final word on whether a project meets the certification requirements. Thus, a contractor is afforded significantly less due process in a dispute involving the USGBC’s interpretation of LEED building standards than in a dispute involving a governmental building code that applies to all contractors within a given jurisdiction.

For that reason, and in an effort to make sustainable building practices mandatory and enforceable, various organizations have collaborated to develop alternative green building standards.

The International Green Construction Code was developed in cooperation with the International Code Counsel, the American Society of Heating, Refrigeration and Air Conditioning Engineers, the USGBC, and the Illuminating Engineering Society of North America. Along with experts with experience in drafting enforceable building codes, these organizations worked together over the course of several years to establish what Richard P. Weiland, the chief executive officer of the International Code Council, calls “a much-needed set of baseline regulations for green buildings that is adoptable, usable and enforceable by jurisdictions.” As is the case with LEED, the intent of the IgCC is to reduce the impact of buildings by improving water efficiency, energy efficiency, indoor environmental quality, materials and resource use, and the interaction between buildings and their environment.

Many of the efficiency and elements that are present in LEED are also present in the IgCC. However, the IgCC is not an all-or-nothing proposition: a jurisdiction (state or local) can adopt all or parts of the IgCC as part of its building standards requirements, it has the flexibility to tailor the adopted portions of the IgCC to meet the unique needs of that jurisdiction. Maryland was the first state to authorize the adoption of the IgCC as an optional requirement for public and private new construction. Other jurisdictions are expected to follow suit. Moreover, the IgCC is not intended to replace existing building codes. Rather, it is intended to serve as an “overlay” for existing construction codes, as it adds sustainability requirements to existing codes. In addition, unlike LEED, a green building code like the IgCC typically affords a contractor the right to avail itself of the protections of the courts in the event of a code-related dispute.

In essence, while LEED represents the “gold standard” for sustainable building, the IgCC is intended to establish the baseline for acceptable green building standards. Thus, the IgCC and LEED can coexist and, in jurisdictions that adopt the IgCC, environmentally-conscientious building owners and tenants can continue to seek to obtain LEED certification without running afoul of the IgCC. Therefore, contractors would be wise to become knowledgeable about the requirements of both LEED and the IgCC in such jurisdictions.

In 2010, California became the first state to adopt a mandatory, statewide sustainable building code. Its official title is the California Green Building Standards Code, but it is commonly known as “CALGreen.” CALGreen sets minimum standards for all residential, commercial, hospital, and school construction. It is not expected to have a substantial impact on construction practices in California, as many of its requirements can be implemented at minimal cost. The majority of costs (including costs associated with permitting, plan review, and inspections) imposed by CALGreen will be borne by local building departments and/or building owners. Nevertheless, contractors in California (and other states that follow California’s lead) need to be aware of the requirements imposed by CALGreen and similar statewide sustainable building codes.

In short, green/sustainable building is here to stay. An increasing number of state and local jurisdictions are adopting green building codes that are mandatory and enforceable. In order to remain competitive and compliant, contractors need to keep abreast of developments in building codes in the jurisdictions and specialty areas in which they are licensed.

This article is not intended as detailed analysis of such codes or as a substitute for legal advice from competent counsel.

Paul Georgeson is a partner in the litigation department of McDonald Carano Wilson. Contact him at 775-788-2000 or pgeorgeson@mcwlaw.com. Patrick J. Murch is an associate at McDonald Carano Wilson LLP and is a Leadership in Energy and Environmental Design Accredited Professional. Contact him at 775-788-2000 or pmurch@mcwlaw.com.