Legislating Green

Incentives and mandates move green building beyond “fad” status.
by William E. Kelley Jr.

Green building has come a long way since the Leadership in Energy and Environmental Design (LEED) green building rating system was introduced over a decade ago. Green building, in many ways, has become more mainstream. Projects more frequently incorporate principles of site selection, transportation, energy efficiency, water conservation, recycling, source of materials and indoor air quality into design and construction considerations. Green building seems more accessible and achievable to a wider array of owners that are engaged in designing, constructing or renovating buildings.

This transition from a perceived “fad” to more mainstream acceptance may be due to changing opinions on climate change, or may be simply a product of increased self-awareness on the effect of the built environment on our community and surroundings.

In spite of increased public attention to green building and sustainability, getting private developers to implement green building remains, in large part, dependent on voluntary efforts. Some owners, if not required to change their mindset to think “green,” will not do so of their own volition.

Many states and local governments have attempted to promote green building in their jurisdictions by creating incentives for developers, owners and operators that incorporate green building practices into their construction projects or their existing facilities.

Examples of these incentives include tax credits, expedited processing for zoning or plan review, concessions on density or setback requirements and technical support from code compliance officers on how to fit plans for innovative project features into existing codes and regulations. Features such as greywater systems, green roofs, solar arrays, electric vehicle charging stations and wind turbines fit into this latter category.

The potential challenges for states and local governments that want to implement green building incentive programs range from identifying funding sources for financial-based incentives to educating code enforcement staff to being able to determine when and to what extent a project is compliant with the green building requirements.

For owners and developers, these incentives have to make financial sense. Absent a financial incentive for pursuing green building, many private owners will simply choose what they perceive to be the path of least resistance.

Emerging trends nationally are programs of a more mandatory nature. Examples include California’s CALGreen green building code and the recently released International Green Construction Code (IgCC), which is a model code for state and local jurisdictions wanting to incorporate principles of green into existing building codes.

Mandatory green building codes help further green building efforts by requiring absolute minimum standards for all projects–public and private. Projects are still free to go “beyond code” through voluntary participation in green building rating systems, such as LEED, but green building codes cast a wide net to cover projects that might not otherwise choose to pursue green building methods.

Adopting a mandatory green building code for all public and private projects may seem to be a lofty goal in the short term, but local governments have other options to promote green building for private developments in their communities.

Recent research from the Harvard Business School indicates that in jurisdictions that require public projects to achieve LEED certification, there is a “spillover” effect, whereby there is an increase in the number of private projects that voluntarily choose to pursue LEED certification or other green building practices in those jurisdictions.

Simply requiring that public projects incorporate green building concepts–and leading by example–states and local governments may be able to tap into this “spillover” effect and increase the number of private projects that voluntarily pursue green building, even absent an incentive program.

William E. Kelley Jr., LEED AP BD+C, is a partner with the Indiana law firm Drewry Simmons Vornehm, LLP, and is vice president of Sustainable Catalyst Partners LLC, a sustainability planning firm for public and private entities. Contact Kelley at wkelley@DSVlaw.com or on Twitter at @willkelleyjr.

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