Green or Not to Green, That is the Question? Whether it is Nobler to Build a Green Building or Suffer the Ignominy of an Ungreen One

With energy costs high and the focus on combating global warming, there is an impetus toward encouraging the development of Green Buildings. Buildings account for 39% of the total energy usage in the U.S., two thirds of the electricity consumption and 1/8 of the water usage. Building codes, setting minimum standards for construction, now include standards for energy efficiency. Green Codes are creeping in.

New Jersey’s Energy Subcode requires that a building permit applicant show compliance as part of the application. This code applies to low-rise residential and commercial buildings Under the Energy Code Compliance and Residential Prescriptive Packages, see N.J.A.C. 5:23-2.15(f)1.vi and N.J.A.C. 5:23-3.18. Compliance must be with the Energy Subcode and the 2006 International Energy Conservation Code (IECC) plus 20%. These are energy efficient standards for cooling and heating.

New York State has its Energy Conservation Construction Code of 2007 which is based on the 2004 IECC standards. This code becomes effective in December 2010. Pennsylvania has adopted Alternative Residential Energy Provisions 2009 based on 2009 IECC standards.

The traditional way of demonstrating compliance with an applicable energy code is to calculate the “U” (thermal transmittance) value of various building components, such as walls, floors, windows, etc. There are tools that assist a builder to perform these calculations and demonstrate compliance with the applicable energy code.

These tools include:

  1. Guidance on performing calculations in the American Society of Heating, Refrigerating, and Air-Conditioning Engineers, Inc. (ASHRAE) Handbook of Fundamentals,
  2. RESCHECK SOFTWARE (these two apply for compliance for NY, NJ and PA),
  3. NJ Energy Star Homes, which involves registration in the program and inspection by the utility company, and
  4. Prescriptive packages for wooden constructed homes.

The first two tools are acceptable in New York, New Jersey, and Pennsylvania. The last two relate to New Jersey alone.

In general, building codes have focused on energy efficiency alone, because lower energy usage is seen as the key to controlling carbon emissions as well as reducing costs over time. However, the Green building concept also involves other notions such as green roofs, hydroponics, reuse of water, less use of water, sewage treatment and other sustainable practices. Other trends could impact building codes in the future. The International Accounting Standards Board (IASB) has determined that by 2012 a standard for biodiversity impacts should be adopted. Such new regulations would require companies to publish information concerning the companies’ environmental impacts.

This would require inventorying energy usage, fresh water usage, air emissions, waste practices, habitat destruction, thermal discharges not only for the company but for suppliers to the company. As a result green construction is becoming more than simply getting a handle on energy.

LEED, Leadership in Energy and Environmental Design, is not a building code itself, but a certification process based on building standards set by U.S. Green Building Council. The LEED certifications, which range from Platinum (the highest), to Gold, and Silver, are verified by independent third party verification. LEED points are awarded on a 100 point scale and weighted to reflect potential environmental impacts. The initiative seeks to lower operating costs, reduce waste, conserve water and energy, reduce greenhouse gases in order to qualify for credits, tax rebates and other incentives depending on the certification ranking.

There has been litigation over LEED. In Southern Builders, Inc. v. Shaw, No. 19-c_07-11405 (Md. Somerset Co., filed February 7, 2007) a tax credit for a silver LEED certification which the developer claimed was worth $650,000 was at issue. The contractor was alleged to have built a substandard building which did not qualify for the tax credit. The case recently settled. However, it does point to the fact that owners, contractors and others have a lot at stake with such certifications.

Eventually, green codes will be adopted by states and code officials. Although LEED is one of the preeminent building certification systems, it is not officially adopted in the above states. Thus, it behooves the developer to choose a qualified Green Project Manager to insure that all interested parties understand what has to be achieved for the appropriate certification and environmental goals of the project. It is not enough to contract the risk to the contractor or subcontractor. Someone who is qualified should be hired to coordinate all levels of construction to insure that the appropriate tax credit, incentive or certification is achieved.

John H. Klock is a Director in the Gibbons Real Property & Environmental Department.

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