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Mitigation Banking: Is State Assumption of Permitting Authority More Effective?

By admin | May 20, 2009

This is a preview of one of the upcoming Volume 34 notes

by Adrienne M. Sakyi

This note will discuss the United States Environmental Protection Agency and Army Corps of Engineer’s recently promulgated final rule that will affect use of mitigation banking as a tool for compensatory mitigation required under Section 404 of the Clean Water Act. State assumption of permitting authority under the Act and extensive state legislation further complicate analysis of the expected effects of this new rule.

Part I of this note will discuss the changes made in the recently promulgated final rule and the methods for effectuating its purpose. Part II will assess the implementation and effect of the final rule on Michigan’s compensatory mitigation regulations under the state’s wetlands program as the first state to assume permitting authority for nontidal waters that are not involved in interstate commerce or transportation under Section 404 of the Clean Water Act. The US EPA and the Corps’s recently promulgated regulation of compensatory mitigation of loss of aquatic resources will not have a direct effect in Michigan because the state has a stringent program that already encompassed the regulations promulgated. Part III will assess the implementation and effect of the final rule on compensatory mitigation in Virginia, a state in the norm of declining to assume permitting authority under Section 404 and instead creating wetlands legislation independent of the Clean Water Act.

The US EPA and the Corps’s recently promulgated regulations will have a direct effect in Virginia because the federal agencies retain jurisdiction and Virginia usually adopts the federal approach, even when it is not bound to do so. Because assumption of permitting authority creates a myriad of obstacles to effective enforcement of regulations, states seeking to protect their wetlands should opt for supplementing federal regulations to retain flexibility and avoid significant burdens and costs.

This issue will continue to develop in the next year, and the EPA has taken a proactive approach in educating the public. Environmental groups also continute to try to influence state and federal policy. Should the state or federal government dictate the development of mitigation banking policy? Is mitigation banking a good idea?

Posted in Abstracts, Volume 34 | 1 Comment

Creating a Legal Framework for Regulation of Natural Gas Extraction From the Marcellus Shale Formation

By admin | May 20, 2009

This is a preview of one of the upcoming Volume 34 notes

by Laura C. Reeder

Recent technological innovations have enabled oil and gas companies to extract natural gas from shale formations that were not viewed as viable sources in the past. One such formation, known as the Marcellus Shale formation, stretches across various eastern states, and is raising legal questions in areas where various regulatory levels coincide. These issues are arising as municipalities, states, and even larger regulatory bodies seek to balance the concerns of the many parties who are interested in natural gas extraction.

Part I of the note explains the technology that has made natural gas extraction from shale formations a viable option. Part II addresses the concerns that property owners may have in connection with extraction. Part III discusses the pollution that can result from development of a shale play. Part IV examines, as an example, the laws and regulations that currently affect extraction of mineral resources in the state of Pennsylvania and, in addition, discusses laws and regulations that affect multiple states. Part V proposes that Congress and the Marcellus Shale states work together to create a Marcellus Shale Compact Commission, which would help to eliminate some of the obstacles experienced by regulators and legislators as they seek to both maximize the potential of the Marcellus Shale play and minimize any negative environmental effects of extraction.

To learn more about drilling into the Marcellus Shale formation click here. Are the risks of drilling worth the reward? How will regulations apply to those already drilling? Is this technology causing a dangerous natural gas gold rush?

Posted in Abstracts, Volume 34 | Leave a comment

Keeping Agriculture Alive in the Shadow of a Uranium Mine: Potential Effects and Regulatory Solutions for Virginia

By admin | May 20, 2009

This is a preview of one of the upcoming Volume 34 notes

by Maggy J. Lewis

This Note deals with the emerging regulatory controversy over the potential mining of a uranium deposit located in rural Southern Virginia.  The “Coles Hill” deposit is thought to be the largest deposit of uranium in the United States, but has been largely ignored since the Virginia General Assembly instituted a moratorium on uranium mining in the early 1980’s.  The increase in the price of uranium in recent years has revived the debate on uranium mining. There is potential for the moratorium to be lifted in the near future and for uranium mining to be introduced to Virginia for the first time.

Virginia’s climate, topology, and climatology are substantially different from those areas in the Southwest where uranium historically has been mined.  In addition, the location of the mine is in an area that, although considered rural within the state, has a significantly greater population density than the western mining areas.

The region of Southern Virginia where the proposed mine is located has historically been powered by nearby textile and furniture industries and agricultural production, especially tobacco.  The present-day economy of the immediate region is comprised of more than a thousand farms, primarily producing tobacco, corn, wheat, and soybeans, and beef cattle and swine.

Although uranium mining has the potential to bring short-term economic prosperity to Southern Virginia, there are potential risks to the agricultural economy.  The mining and milling process, as well as waste products, also bring significant risks of contamination to the surrounding environment. These risks which have been realized at other mining locations, and these risks may be exacerbated by the unique hydrological environment of Virginia.  The increased exposure of crops and livestock has the potential to pose a significant safety and health risk to consumers of those products.  More importantly, the public perception of risk or danger from uranium mining may also result in serious negative repercussions for the marketability of agricultural products from the nearby regions, regardless of whether those risks present any real threat.

This Note addresses the potential implications for agricultural production if uranium mining becomes a reality for Virginia by looking at scientific and sociological data at other mine sites, as well as public perception of food safety threats.  There are gaps to be filled in both regulation and enforcement mechanisms as they apply to uranium mining’s effects on agricultural crops and livestock.  This Note provides suggestions for means of regulating the output of agricultural products from the potentially affected regions of Virginia under the current statutory framework for developing state and site-specific protocols to ensure safety and preserve the public confidence in the food supply.  By taking the proactive regulatory approach proposed by this Note, agriculture can continue to be a successful economic base of the Southern Virginia both during the uranium mining process and after it has come to an end.

The debate over Cole’s Hill will continue. Should Virginia tap these resources? How should Virginia protect farmers? What does mining Uranium say about Virginia’s balancing of energy needs and the safety of the food supply?

Posted in Abstracts, Volume 34 | 1 Comment

PC Pets for A Price: Combating Online and Traditional Wildlife Crime Through International Harmonization and Authoritative Policies

By admin | May 20, 2009

This is a preview of one of the upcoming Volume 34 notes

by Jessica B. Izzo

Animal Trafficking is a $20 Billion international business that has quadrupled over the last fifteen years. The over-exploitation of these animals is a global concern, because it can lead to animal extinction, the depletion of resources, and the loss of biodiversity. Although the Convention on International Trade in Endangered Species of Wild Fauna and Flora, or CITES, attempts to internationally monitor animal trafficking, it lacks the prowess and authorization to effectively enforce its own policies.

Over the last decade, this business has moved from a solely traditional market and grown through the internet; this change necessitates a more rigorous enforcement plan. Cybercrimes are habitually more difficult to prosecute, because of offender anonymity, jurisdictional issues, and other evidentiary problems. The Council of Europe’s Convention on Cybercrime is the first international response to this problem, providing international harmonization of cybercrime laws.

Recently, more illegal sales are transnational, often causing legal and jurisdictional conflicts. In 2007, in response to a conservation publication calling for harmonization among EU laws, the EU passed an Action Plan. This Action Plan represents an important step toward a universal transnational enforcement plan.

This comment argues that CITES must be reformed to allow for better enforceability. This comment recommends necessary improvements to CITES, such as the building international animal trafficking laws, providing resources and funding to developing countries, and mandating stricter culpability standards, using the Convention on Cybercrime and the EU Action Plan as legislative models.

Posted in Abstracts, Volume 34 | Leave a comment

Don’t Take the Bait: Why USDA Organic Certification is Wrong for Salmon

By admin | May 20, 2009

This is a preview of one of the upcoming Volume 34 notes

by Jessica Hass

In what has been called the “blue revolution,” more and more consumers and producers are turning to seafood as an alternative to land based meat. Unfortunately, natural fisheries are not an inexhaustible resource. The modern fishing industry has been called “the most destructive activity on Earth.” Farming fish, or “aquaculture,” is an alternative method of producing fish for human consumption that could relieve pressures on wild fish populations, but also causes serious environmental degradation. The original purpose of the organic movement was to encourage sustainable, environmentally friendly food production. Congress passed the Organic Foods Production Act in 1990, empowering the USDA to certify organically produced food. None of the current regulations describe organic production of fish, though a number of controversial regulations have been proposed.

This note discusses the purpose of an organic label and organic certification in terms of protection for the environment, consumers, and producers. It then describes current organic labeling requirements for livestock and argues that the USDA certified organic label is an imperfect method of encouraging environmental sustainability and informing consumers. More specifically, the proposed regulations that would control organically produced fish are ineffective and counterproductive. Private certification agencies and other regulations are a more viable alternative.

What should the USDA do to prevent overfishing? What can  conservation conscious consumers do to reduce the “blue revolution’s” impact on the environment? Is aquaculture a viable option for reducing the impact of fishing on the oceans?

Posted in Abstracts, Volume 34 | Leave a comment

The Black-Green-White Divide

By admin | March 22, 2009

The second issue of ELPR Volume 33 was recently published full of fantastic articles. Check out our journal archives!

In her article, Bridging the Black-Green-White Divide: The Impact of Diversity in Environmental Nonprofit Organizations, Faith R. Rivers explores how the racial divide effects environmental groups.

Rivers delves into the subject by discussing how nonprofit environmental groups have influenced environmental policy making. She points to the tax-exempt status as a reason for the environmental movement’s success, yet she questions whether environmental groups’ are deserving of tax-exempt status since most groups fail to consider the viewpoints and considerations of different racial groups.

The main illustration of her point comes through the Briggs-DeLaine- Pearson bridge controversy. The bridge would connect two socio-economically challenged African-American communities in South Carolina. While there has been extensive lobbying by environmental groups to stop the bridge for fear it will ruin the underlying Lake Marion, none of the groups fighting the bridge have helped to protect the local African-American communities from the contamination of the former Bennet Mineral Company site. The Industrial Waste permits for the site were issued to the company without a hearing. While this site may potentially pollute the lake, environmental groups have only fought to shut down the operation, not to prevent future contamination of the lake. Environmental groups have poured resources into fighting improvements instead of protecting the people.

Rivers recommends that environmental groups be forced to consider a variety of viewpoints. While minorities are disproportionately affected by pollution, minorities have not had a voice in environmental policy. On most environmental groups’ director’s board there are no minority representatives. Rivers believes that in order to promote equality and reduce the disparate impacts on minority communities, environmental group boards should reflect the diversity of the community. She concludes that, “to the extent that minority and low-income individuals are underrepresented on environmental nonprofit board of directors…these groups will continues to lack the cultural competence, community, and legitimacy and accurate information to recognize and address environmental justice issues in a holistic and effective manner.”

This is an ongoing discussion. Rivers has spoken out in different forms, as have others. President Obama is in an interesting position as an African American leader and an advocate for the environment. How can the President help to bridge the divide?

Creative Commons photo courtesy of Flickr user TMeyer 88.

Posted in Volume 33 | Leave a comment

Local Land Use Law and Smart Growth

By admin | January 31, 2009

Nolon and SalkinThis afternoon’s panel featured  Prof. John Nolon from Pace Law School and Prof. Patricia Salkin, an Associate Dean at Albany Law School. Nolon presented on the topic of ”Local Land Use Law, Urban Form, and Climate Change Mitigation” while Salkin focused on the topic of ”Smart Growth and the Greening of Comprehensive Plans and Land Use Regulations”.

Professor John Nolon:

The situation we face is more urgent than many people in the United States realize. Projections of the intergovernmental panel on climate change are not only out of date but alarming. We are starting along a good path, but we must move a long it more quickly and with urgency. We have a large population coming into the United States, projections cite that 100,000 million people will come into our country. This increase in population will require more development of homes by 2043. And, 66% of development by 2050 will be built between now and then, causing the building environment to change rapidly.

Where the new development will go and the amount of energy efficiency it will have is important. The blueprints created by local governments are important in determining how the new development will proceed.  Buildings emit 38% of domestic CO2 and personal cars emit 20% of our CO2 totaling 52% of CO2, which is the main focus of the intergovernmental panel on climate change.

Local governments control settlement patterns. Through comprehensive plans, zoning, subdivision and site plan regulations, local environmental laws, green building ordinances, and development review process are tools that local governments have for local governments to influence green building. Our system of government has allocated to the local level the responsibility of determining how we build.

Current blueprint created by local governments is largely a blueprint caused by the proliferation of single family, single use neighborhoods. Over the past decade 60% of people have chosen to live in single family homes, which is a product of the market. If 60% of 40 million households choose to live in single family neighborhoods, there will be an increased depletion of our environment at a much higher rate because of this kind of development. Aging empty nesters, never nesters, young immigrant households want to live in the urban environments, which improves the urban real estate market.

Furthermore, the shift from single family homes to urban housing will shift 8 million households from one type of development to another. The compact development brings less CO2 emission.

According to the Growing Cooler report, shifting 60% of new population to medium density compact development will save 79 million tons of CO2 emissions. With fewer cars, services and goods within short walks of homes, and transit parks within a close distance will create a lighter carbon footprint.

The difference between single family living and urban living is about 18 metric tons per person per year less CO2 emissions after the shift from single family living to urban living.  This represents a huge percentage of our country’s CO2 emissions. Just through zoning and reconfiguring the human settlement pattern, we can reduce travel and building emissions resulting in a 25% decrease in CO2 emissions.

Other local land use strategies, encouraging solar, encouraging wind, and green building laws. Land use stabilization wedge, zoning for compact, mixed use development reducing vehicles. We can increase building efficiency through green building laws. We can facilitate wind and solar power with new laws.

Professor Patricia Salkin:

If we are serious about implementation, we must change local green building code and energy star requirements. These changes must start with local governments, without further authority of state governments and the federal government. Local governments must conduct a green audit. Before you can make these changes, it is important to take an inventory of what we have and create a comprehensive plan for zoning that takes into account green zoning. We should adopt our zoning regulations to comply with our vision for our communities.

The American Planning Association surveyed planners, and 65% of those polled believed that energy issues are very important to planning, with 94% of those polled saying that there is a role for planners in energy conservation.

The APA has adopted a policy guide on planning and climate change, which focuses on reducing green house gas emissions, change the patterns of behavior, development and policy through land use control and looking at interdisciplinary actions.

 The comprehensive plan includes our statement of goals, aspirations, and policy directions. In order to green our comprehensive plan we should look at energy, conservation, critical areas, land use, transportation, housing etc. Some states are now requiring local governments to specifically address climate change in their comprehensive plans, such as California and Florida. Not telling local governments what to say in their plan, but they must address climate change in their comprehensive plan.

Examples of statements made in comprehensive plans that address green issues: Marin County, CA: Energy reduction, sustainability measures incorporated through the plan. Chula Vista, Ca: Decrease automobile dependency. Boulder County, CO: TDR and green building. Albuquerque, NM: More public transit. Blacksburg, VA: Compact development.

The comprehensive plan is not the law, but it is the guiding document for the creation of the law. Other things that municipalities are putting in their comprehensive plans as aspirations for their future laws include, transient oriented development, recycling water (green roofs or storm water programs), bike plans, and adopting climate action plans. Dozens of states have begun to adopt these climate action plans.

Another aspect of local land use control, in most states, there is some environmental rules that must be factored into our local environmental land review.

Techniques to promote solar energy include state laws that pre-empt local zoning. Solar energy is a valid planning concern that is within the power of local governments to advance the agenda of increasing solar energy. In Arizona, for example, the Solar Rights Act allows the implementation of solar energy panels regardless of zoning. Historic preservation plays a big role in influencing solar development. Some communities are exempting the use of solar panels in historic preservation areas.

Wind power has been controversial, depending on what state you are in. If the local governments allow for turbines, you might want to designate which areas you want the turbines and include that within the local plan. The location designated must be consistent with where the wind is, taking into account the noise generated by the turbines. When it comes to turbines a state or federal rule is necessary in order to ensure that these projects get up and running, which probably won’t happen if left solely to the local level.

Compact design can be used to promote the preservation of open space and greenspace. Local design standards can help implement this.

Clustering ordinances can help conserve natural areas and help with density. Local governments can permit/require the clustering in subdivisions.

We want to create walkable communities through our site plan to ensure that commercial and residential areas are pedestrian friendly. It is essential that these sidewalks are connected by the local government with a comprehensive sidewalk plan.

Rainwater collection ordinances are used to help conserve water to help meet demand and conserve water in order to prevent depletion of potable water.

Xeriscaping ordinances make landscaping more sustainable, help with water conservation, and improve the habitat for plants and animals.

Green roofs are specifically designed roof type gardens or lawns that can also allow for trees, or they may be shallower just for grass and other small plants. Benefits are that they improve air quality, building efficiency, and provide urban greenery in cities. Communities need green roof ordinances to prevent roofs from caving in and create incentives.

Cool roofs, are traditionally covered with reflective materials to help with the urban heat island problems. These can be incorporated into building codes.

Transfer development rights program can promote sustainability to preserve natural and minimally developed areas. You take the allowable density in one area and you sell the rights to build your units to another area so that you increase density and create compact development thereby saving undeveloped areas.

We should identify and facilitate land uses that are not already present in local districts. We should put schools and parks back in neighborhoods. There needs to be residential business areas in neighborhoods. Currently we have parks that are not accessible in suburban communities.

Professor John Nolon:

Attorneys are needed to put into law the requirements that will stop us from destroying our planet. Law needs to lead the social norms. Local governments are beginning to aggressively move to create transit oriented development on the local government.  Lawyers are starting to respond to the need to adopt local laws to prevent natural disasters. We need to leave local governments to adjust to the climate change challenges. It is local governments that really understand what the problems of their communities are.  As people are affected by climate change, will be incentivized by lawyers to adopt laws to help solve the problem.

We need to look at what the appropriate role is for local governments, state governments, and the federal government. While local governments should lead in environmental laws,  the federal government can help through making materials and funds available to states to help states make their own programs that can encourage local governments to do what they think should be done.

Nolon and Salkin2Q&A Session:

Q1: Have states started incorporating climate concerns in their legislature prior to lawsuits, or have lawsuits inspired these changes?

A1: Both. In some states, change has started with lawsuits, but other states have started incorporating climate concerns prior to litigation.

Q2: Which part of the Constitution gives the federal government the authority to run the wind turbine operation?

A2: There is no mention of local government in the Constitution, so the authority belongs to the federal government. The Telecommunications Act example is parallel to the wind turbine operation. The Telecommunications Act mandates that state and local governments may not prevent the construction of cell towers, nor may they delay the process. Prof. Salkin advocates a similar act regarding wind turbines, to essentially force local and state governments to allow for the construction of wind turbines.

Q3: What provisions in local laws deal with rising sea level problem?

A3: One approach creates a rolling easement - as the sea level rises, people who own land adjacent to the ocean loose the right to that land. Another local government has developed a moratorium on all development after natural disasters so that they have time to adjust their land use laws. There is also a beach zone local law that prohibits the rebuilding of a building that has been destroyed. Another possibility is to use the Stafford Act which requires states to have plans on how to deal with natural disasters. If states were required, under the Stafford Act, to have a plan dealing with sea level rising this would also address the problem.

Q4: What do you envision as possible means to overcome opposition to comprehensive plans?

A4: “American hate two things: sprawl and density”, said Nolon. Americans hate density; it is part of the American Dream that everyone can have a car in their garage and a home to call their own. As the environmental crisis grows, people will become more concerned with environmental crises than they are about their car in their garage. As a result their priorities will change, and the American Dream will change.

Posted in Symposium | 11 Comments

Impact and Mitigation Fees to Finance Sustainable Development Initiatives

By admin | January 31, 2009

Carl Circo
Carl Circo from the University of Arkansas Law School joined us this morning to discuss the question: “Should Owners and Developers of Low-Performance Buildings Pay Impact or Mitigation Fees to Finance Sustainable Development Initiatives?”

He began with a confession, “My name is Carl Circo and I’m a green building pessimist.”

Circo went on to discuss the social costs: local governments push disposal costs onto private organizations doing the construction

Furthermore, there may be constitutional issues in relation to “linkage fees”. Mitigation fees are intended to compensate for damage done by construction. They are used as a method of sustainability by local governments. Sometimes used in conjunction with tree escrow funds – making private organizations donate to the fund in order to replace trees knocked down in order to construct.

This raises questions like should private organizations have to pay the intense costs of trying to sustain the heavy environmental impacts of construction? And, there are limits to developer fees. The policy raises questions about the authority of a city to impose development fees– alocal jurisdictional question. The U.S. Constitution has limits on the use of linkage mitigation and impact fees. There is heavy controversy in this realm.

Moreover, we must consider how the conventional state land use limitation on the use of developer fees might apply to aggressive green building programs financed through impact, linkage, or mitigation fees. An important point to keep in mind: fees are economic tools used to change the behavior of the private sector. Developers are driven by financial projections, taking into account anticipated revenues in conjunction with the costs the developer must bear (negative externalities from the use of traditional v. new business approaches).

State land use law has developed a rational relationship test for determining the development fees to cover costs. The police power must be exercised in a fair, reasonable manner. What we have is dual rational nexus test. Primary limit: impact fee, for example, may be no more in amount than the governments reasonably related fees (to the development). Developers are then required to pay the fee must in some way derive a benefit from the use of the fee by the government. This cannot be a “rough guesstimate”… must be more than a guess – a reliable consideration, may need a comprehensive study, or point to an existing body of knowledge to develop a true, existing relationship. And, they must establish a legitimate basis for the charge (size of the charge). They must be able to show that the funds are being used to address the infrastructure need.

The 2nd prong: developer paying the fee must enjoy some benefit from the fee collected. This is a legitimate formula for indicating the impact a particular development will have on sustainability. They must have a program to account for the fee that shows the fee is being used to further sustainability. 

Which raises the question– may cities, under the dual rational nexus test use these fees to finance aggressive green building programs?

Circo closed by saying that he is worried about the level of capital investment needed to leave natural capital to enjoy the same level of social welfare that our generation has been able to enjoy. The use of developer fees might be one small way to finance that local development.

Circo is still left wondering how to finance the rest of the costs. Because of this, Circo remains a pessimist because he doesn’t know how to and doesn’t think we have resolve to do what we must do.

Posted in Symposium | 2 Comments

Federalism and Conflict in Regulation of Green Buildings

By admin | January 31, 2009

Shari Shapiro
Shari Shapiro from Obermayer Rebmann Maxwell & Hippel LLP joined us this morning to discuss “Who Should Regulate?– Federalism and Conflict in Regulation of Green Buildings”. 

After leading the audience in a yoga stretch, Shapiro paid homage to the spirit of Colonial Williamsburg (home of William & Mary School of Law) by quoting Alexander Hamilton. Her quote was used to illustrate the point that states have all the powers that they had before the Constitution’s passage.

Shapiro began her talk by noting that historically, environmental regulation occurred at a Federal level with a strong command and control focus on compliance.  Since 2000, Federal enforcement has been in decline, which has spurred states and municipalities to act.  While Federal action may increase with changes in the political landscape, the present reality of green building regulation is a patchwork of Federal, state, and local laws.

Shapiro pointed out that this upswing in state and local regulation has predictably resulted in litigation.  In October 2008, a District Court in New Mexico granted a preliminary injunction to a group of HVAC industry groups suing the City of Albuquerque to prevent the introduction a green building code that would have affected their businesses.  The code clearly ran afoul of the Federal law and is emblematic of the challenges state and local governments face in keeping in compliance of Federal law in the face of pre-emption.

(Shapiro also polled the audience to see if anybody was familiar with Albuquerque’s son– Freddie Prinze, Jr., known for such hit films as She’s All That. One brave soul raised their hand, proudly.)

Shapiro also noted that Federalism and green building have all the elements of a tabloid paper– inept politicians, hippies, B-List celebrities, Barack Obama, and corrupt officials.

The wisdom of Federal or state action sovereignty on green building regulation is not clear cut.  On a Federal level, regulation would allow for a single standard and would prevent cross border conflict, however the legislative process may result in compromises that result in a less stringent standard.  On a state level, flexibility in regulation can be achieved by local administration and greater experimentation, but it would create variable standards from state to state and may result in an imbalance in regulations through the states.

Shapiro noted that state pre-emption of local laws mirrors the Federal-state experience.  In 2004, Pennsylvania passed a uniform construction code that has been interpreted in state courts.  In a case before the Pennsylvania Supreme Court, a lower court ruled local green building laws can only be added to the statewide construction law if the locality demonstrates a clear and convincing need to change the law.  Local conditions must be so different than the statewide norm that the construction code is inappropriate to use.  This high standard results in a stymieing of local green building regulation. 

Shapiro closed her lecture with a look towards the future.  She predicted that in the next couple of years, many challenges to state and local laws on pre-emption grounds will occur.  However, litigation in this field may yield benefits.  Legal challenges help to clarify vagueness in the laws and the interplay between the courts and the legislatures help to refine environmental laws.  Litigation in this field is actually a healthy process.

In a question-and-answer session after the lecture, Shapiro noted that Federal action in green building regulation by the Obama administration may be far reaching and could result in a greater pre-emption.  The expectation is so high, many state and local governments are presently waiting to see what the Obama administration will do before passing any more laws.

Federalism and Conflict In Regulation of Green Buildings: Who Should Regulate?
View more presentations from ELPR. (tags: green building)
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State-Level Green Building Initiatives

By admin | January 31, 2009

State-Level Green Panel
Joining us at this morning’s panel is Darren Prum from UNLV, Senator Daniel Clodfelter from North Carolina, and Chris Cheatham from Watt, Tieder, Hoffar & Fitzgerald. 

State-Level Green Building Initiatives have the potential to promote and further the development of green building. The diverse panel brought together individuals from the academic, political and professional world. The panel was able to provide an excellent overview of these initiatives and the corresponding issues and problems.

William & Mary School of Law Professor Ronald Rosenberg served as the moderator and helped to foster a terrific dialogue.

Each panelist gave a short presentation followed by a Q&A session.

Prum: Creating State Incentives for Commercial Green Buildings

Prum provided an overview of the of Nevada’s approach to Green Building Incentives, both in the public and private sectors.

Nevada has a part time legislature, meeting only in odd number years. Nevada also has no state income tax. In 2005 a plan was put together to incentivize green building in Nevada; subsequently Nevada became the second state to require Sate government to build 2 LEED Silver or higher buildings each 2 year cycle. The incentives were a 2% reduction in taxes. Implementation became a problem because the only requirement was that a developer had to have the idea prior to December 31, 2005 and the whole project was considered, rather than single buildings.

The LEED projects in Nevada went from 14 in 2005 to 92 in 2007. Owners were getting 3 dollars for every 1 spent on green building, resulting in a 940 million dollar loss over the next 2-year period.

As a result of this the state came to a compromise bill that eliminated the sales tax incentive and revised the property tax incentive; this incentive required strict adherence to the LEED standards. The new program focuses on property tax incentives ranging from no abatement to a 25% abatement over 10 years. This is crucial in Nevada since the state has no income tax. Several other states, including New York and Oregon are using this type of financial incentive programs.

Creating State Incentives for Commercial Green Buildings
View more presentations from ELPR. (tags: green building)

Senator Clodfelter: North Carolina Issues

North Carolina’s legislature has a great deal of activity in the area of green building, especially in water efficiency and conservation. The collapse of the aquifer, which supplies water for the Eastern portion of the state, has made this especially important in the last few years. The state has utilized incentives, mandates, and education and out reach.

North Carolina has developed the Healthy Built Homes standard for green building in North Carolina, available a healthybuilthomes.org. The program is more stringent than LEED, but is still a voluntary standard.

The state is heavily dependent on income tax, and is constitutionally prohibited from using property tax to incentivize green building. So, the state relies on income tax incentives. There has been a debate going on concerning a straight income tax credit for green buildings, the main obstacle has been whether to use the state developed standard or national standards, such as LEED or Green Globes. The problem of multiple standards is the primary problem.

North Carolina has permitted local governments to forgive/rebate permitting fees for buildings that met LEED standards, once again the standard applied became an area of contention, but to solve this the State included both the state and national standard.

State agencies have also begun converting existing systems in buildings to increase efficiency for water and power, this has been really successful; the only hurdle has been the cap on the amount that could be spent.

The state has also mandated energy use has to be 30% more efficient than the 2004 edition, as well as increases in water efficiency and any new building projects must submit plans to eliminate outdoor potable water use. Any developers failing to meet this mandate must submit a corrective action plan after an audit.

The Senator takes the position that existing buildings represent the greenest buildings, since they require no new development, no new materials, and no waste of resources. A problem is that strict building codes require buildings that don’t meet certain mundane standards, such as lengths of timber, to be torn down rather than rehabilitated. The State enacted a program that encouraged good judgments in granting variances to the building codes. The program has been predominantly used in larger cites and has been very successful. This has been an important tool in refurbishing older parts of the cities.

Most important policy change in North Carolina to further green building has been Senate Bill 3, which included a renewable energy portfolio standard. The most important part is the decoupling of electrical utilities production of power with the amount they pay. The companies can earn a return in renewable energy, demand reduction and energy efficiency; something that was not possible under the old regulatory model. The companies now have the incentive to build supply chains for renewable energy. The Senator thinks that incentivizing and decoupling have been the most important policy changes in North Carolina.

Chris Cheatham: State Standards

The Dillion rule makes it impossible for local governments to create building codes to require green buildings. Instead the state is mandating the LEED certification standard for certain buildings, which creates a problem because this standard is changing evey 2 years.

Mr. Cheatham thinks that green building strategies should be incorporated into their building codes instead of requiring LEED certification for certain buildings.

State-Level Green Panel 2Q&A Session:

Q1: to Sen. Clodfelter→ talk about pilot program for local buildings code.

A1: Area of mill housing had difficulties because it was impossible to get the homes up to building code standards and so the neighborhood went into decline. So the State asked for variances under the pilot program, and as a result the area is now an arts district with over 300 million in investment. Thus, preventing urban sprawl and reducing crime.

Another project was a corporate headquarters that had been abandoned since 1985, and was now not up to code. With variances under the pilot program a new corporation filled the building and utilized the space.

Q2: Are there requirements under this pilot program that specifically deal with green building?

A2: no, but the main point is to expand what one considers green building, because reutilizing spaces, while not “green” specifically,” is in fact green.

Q2: when local governments reimburse zoning fees does the state reimburse the localities?

A1: No, it’s a voluntary system that the state encourages the localities to initiate, but it is “on their own nickel.”

Q3: to Mr. Prum, same question.

A3: the state does reimburse local school districts, but not the counties.

A3: Mr Cheatham→Feebates in Oregon could be a possible solution.

Q4: how will President Obama’s support for green initiatives affect States use of the new funds in the stimulus package?

A4: Mr. Cheatham→ there will be some problems as states try and figure out how to appropriately apply the money.

A4: Mr. Prum→Nevada is ready to go and has a several billion dollar backlog in projects that are ready to go and just need funding.

A4: Sen. Clodfelter→there is some concern about what projects are ready to go and just need funds, because these projects are not necessarily green, but there is an existing green business fund that the Senator hopes to put some stimulus money toward.

Q5: how do states standards vary from LEED as far as quantification? Why did NC insist on having a state standard?

A5: Senator it started as a way of enticing small scale builders evolved into a separate certification standard

A5: Mr. Cheatham→certification starts with the design phase, and certification occurs at the end of the project.

A5: Sen. Clodfelter→the system in NC is a performance based system that may be audited later.

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