Green Building Law Update

One Trillion Trees

Green Building Law Update

The One Trillion Trees Initiative was launched at the World Economic Forum last month.

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Migratory Bird Treaty Act Will Apply Only to Intentional Takes

Green Building Law Update

Last week, the U.S. Fish and Wildlife Service proposed a rule clarifying that the scope of the Migratory Bird Treaty Act only extends to conduct intentionally injuring birds. Conduct that results in the unintentional (incidental) injury or death of migratory birds is not prohibited under the act.

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When Trees Sue for their Own Environmental Preservation

Green Building Law Update

In the new decade American environmental law will likely expand to include you being sued by the trees. I don’t mean being sued by the Lorax or someone else who “speaks for the trees” but rather the trees will have standing to sue to confront environmental degradation and the like.

Low Carbon Concrete for the First Time Required by Law

Green Building Law Update

The negative environmental impact of concrete, the most common man made substance on Earth, has not been meaningfully responded to in 2020. Cement use in concrete is the largest single material source of greenhouse gas emissions in building.

You Can't Improve Construction Safety from Inside a Filing Cabinet

How mobile technology can mitigate risk, save money, and provide a competitive advantage.

Maryland Schools will No Longer be LEED Certified

Green Building Law Update

In response to legislation enacted by the Maryland General Assembly in 2018, overriding a veto by the Governor, commencing last week new public school building no longer has to be LEED certified or the like.

Phase l Assessments for Tenants are the Hottest Environmental Issue in 2020

Green Building Law Update

The hottest environmental topic for business in 2020, as a result of an amendment to the Superfund law for the first time making clear that tenants can qualify as bona fide prospective purchasers, protected from cleanup costs from the presence of hazardous substances on a property, is prospective tenants are now ordering Phase l Environmental Site Assessments to take advantage of the liability protections in the new law. Buried in the more than 800 page Consolidated Appropriations Act signed on March 23, 2018 was Division N, the ‘‘Brownfields Utilization, Investment, and Local Development Act of 2018’’ (the BUILD Act). The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA, commonly referred to as Superfund), 42 U.S.C. § 9601 et seq., provides an important liability protection, including from cleanup costs, for parties who qualify as bona fide prospective purchasers (BFPPs). The potential applicability of the BFPP protection to a tenant who leases contaminated or formerly contaminated real estate has been the subject of debate for the decades since the CERCLA’s enactment. The cases interpreting CERCLA make clear that the mere execution of a lease does not necessarily make a tenant liable as an owner or operator under the law. But courts have acknowledged uncertainty regarding the potential liability of tenants under CERCLA including because a tenant may be an operator of the property as well as a responsible person, but tenants had previously lacked any express protection in the Superfund laws. A prospective tenant may now to seek BFPP treatment in the event of a future federal CERCLA cleanup action at the leased property or simply to ensure appropriate environmental stewardship of the property. Such is a dramatically large issue with the economic contribution of real estate to the U.S. economy, when in any given year the vast majority of real estate transactions are leases and not contracts of sale. In 2020, an increasingly large number of prospective tenants, from commercial banks to sports apparel retailers and the defense industry are actively seeking protection for existing contamination before signing leases. In 2002, as part of the Small Business Liability Relief and Brownfields Revitalization Act, the BFPP definition was amended to include the parenthetical phrase “(or a tenant of a person)” in the description of who can claim the BFPP defense, but there was no other direction on the treatment of tenants. EPA then issued guidance in 2012 on the treatment of tenants as BFPPs, providing that a tenant could only derive it BFPP status through the property owner, and that status was limited to “so long as the owner maintains its BFPP status.” So while instructive, it provided little, if any, comfort to tenants. This 2018 BUILD Act addresses the uncertainty dating to 1980, by amending CERCLA § 101(40) including by in subclause (II), by inserting ‘‘, by a tenancy, by the instruments by which a leasehold interest in the facility is created,’’. And in that subsection, the term “bona fide prospective purchaser” has been amended to mean, (ii) a person who (I) who acquires a leasehold interest in the facility after January 11, 2002; (II) who establishes by a preponderance of the evidence that the leasehold interest is not designed to avoid liability under this Act by any person; and.”. Which has the macro effect of increasing the value of many commercial and industrial properties making reuse viable, obviating one of the longstanding criticisms of CERCLA, that the law limits urban redevelopment across America, and the micro effect of mitigating a tenant’s risk in an individual leasehold, by allowing a tenant to avoid CERCLA liability by any of the following three means: One, establishing the landlord is a BFPP because that landlord completed the “all appropriate inquiries” as required by federal law (including with a Phase I ESA); or two, establishing that the landlord completed all appropriate inquiries, but later failed either with compliance or to complete additional requirements; or three, establish the tenant itself, as the BFPP, by completing all appropriate inquiries prior to acquiring the leasehold interest and maintaining compliance with the additional requirements, if any. A tenant can now assert, without having to rely on the landlord’s status, the innocent landowner defense being protected from CERCLA liability including cleanup costs from the presence of a hazardous substances on the property. In this new decade when cursed energy is “out” and dark energy is “in” Phase I ESAs ordered by prospective tenants are in. As a pendent matter, when a Phase I ESA report exists, it may now as a result of the 2018 Build Act be material information, under state law, that a real estate broker is obligated to disclose to a prospective tenant. Concomitantly, should the Phase I ESA reveal a recognized environmental condition, a tenant could seek protection as a “inculpable person” not liable for existing contamination under state Brownfield laws. In 2020, prospective tenants in commercial and industrial properties are now ordering a Phase I Environmental Site Assessment. Environmental Federal ASTM E1527 CERCLA Phase I ESA Phase l Environmental Site Assessment Superfund

Net Zero Certification Program Announced by USGBC

Green Building Law Update

Much as NASA developed dozens of life changing and useful inventions that benefitted all as it raced to the moon, USGBC may be the catalyst for new, cutting edge technologies in the race to net zero buildings.

Top 10 Environmental Blog Posts for the Roaring ‘20s

Green Building Law Update

As we begin the new decade of the Roaring ‘20s we are incredibly excited about the prospects for environmental law. We are supremely confident that our business philosophy of “environmental risk as an opportunity” remains right for the times.

179D Tax Deduction Brought Back to Life thru 2020

Green Building Law Update

This past Friday night while aboard Air Force One the President signed legislation reviving the 179D energy efficient commercial buildings tax deduction, providing an enormous and much needed boost to domestic green building.

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LEED Prerequisite Now Prohibits Smoking Cannabis

Green Building Law Update

The U.S. Green Building Council issued a LEED Interpretation in 2018 ruling, “smoking of cannabis is considered a form of smoking for the purposes of both the interior and exterior smoking provisions of the LEED Prerequisite Environmental Tobacco Smoke Control.”.

Cannabis Manufacturer Charged with RCRA but No CDS Violations

Green Building Law Update

In a criminal case that says significantly more about the prosecution than the indictment on its face, the Federal government is prosecuting a leading cannabis industry manufacturer and distributor for criminal transportation of hazardous waste.

2018 IgCC is Not in Use Anywhere. A Detailed Analysis of Why?

Green Building Law Update

The 2018 International Green Construction Code was released on November 8, 2018 but more than a year later, it has not been adopted anywhere.

Government to Allow Less Lead in Drinking Water

Green Building Law Update

EPA is expected to publish this week in the Federal Register the first proposed regulatory revisions to the National Primary Drinking Water Regulation for lead in more than 30 years. The United States has made tremendous progress in lowering children’s blood lead levels (.

Greenbuild was Proof Positive that LEED is Thriving

Green Building Law Update

The just completed 2019 Greenbuild International Conference and Expo in Atlanta is absolute proof that the LEED green building rating system, with more than 100,000 projects registered and certified, is thriving.

Is There Lead in the Drinking Water of Your Green School?

Green Building Law Update

EPA and the Centers for Disease Control and Prevention agree that there is no known safe level of lead in a child’s blood. Lead is harmful to health, especially for children.

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PFOA Contamination is Found in 49 States

Green Building Law Update

Two weeks ago, New York Attorney General Letitia James commenced a civil suit against the nation’s largest chemical manufacturers and several firefighting foam makers for what the complaint alleges is contamination of water supplies across the state with PFOAs, averring strict liability for public nuisance, strict products liability for defective products, strict products liability for failure to warn, and seeking restitution. That lawsuit is in addition to the hundreds of PFOA suits pending across the country, including three class actions certified last month. And many more people are expected to seek judicial redress in the coming years. Adverse health impacts from PFOA are being policed by the marketplace and enforced by the rule of law through these common law state tort liability suits. Per and polyfluoroalkyl substances are a group of more than 4,000 man-made chemicals that includes PFOA, PFOS, GenX, and many other chemicals. PFOAs have been manufactured and used in a variety of industries around the globe, including in the United States since the 1940s and have been the most extensively produced and studied of these chemicals. PFOAs are very persistent in the environment and in the human body, meaning they don’t break down, accumulating over time, and as such have been referred to ‘forever chemicals’ making them an emergent environmental priority. The EPA reports, “there is evidence that exposure to PFAS can lead to adverse health outcomes. studies indicate that PFOA can cause reproductive and developmental, liver and kidney, and immunological effects in laboratory animals, and have caused tumors in animal studies.”. A peer reviewed study cited approvingly by the EPA describes 99.7% of Americans have a detectable PFOA in their blood! Significantly, concentrations of PFOA in the U.S. population’s blood have declined since 1999 by 25%, from an average of about 4 parts per billion, in large measure in response to litigation, including a widely publicized 2000 court ruling that forced the major U.S. producer to for the first time share all documentation related to PFOA. Manufactures began exiting the marketplace and with EPA’s 2010 PFOA Stewardship Program where eight participating companies agreed to gradually phase out the manufacturing of the chemicals by 2015, new production of PFOA in the U.S. has been cut dramatically. But make no mistake that while new production has been greatly reduced, PFOA products exist widely from fire fighting foam on boats, including U.S. Navy vessels to stain and water repellent fabrics as well as a variety of construction materials. Troubling to some is that green building programs, including LEED’s Materials & Resources credits do not track or even take into account PFOA. Some suggest the U.S. government is complicit in the wrongdoing, including when the principal sources of PFOA pollution in groundwater are military bases and civilian airports where the federal government specified fire fighting foam containing PFOA. But possibly the larger issue is that the federal government and the states failed to regulate this space, at all, including never determining PFOA to be a hazardous substance, when regulation could have provided protections for the public and the environment while providing predictability to the manufacturers. But this is not a U.S. problem alone. Populations in nearly all industrialized nations have a PFOA blood level of at least 2 parts per billion and PFOAs are still being produced in many countries. In the U.S. there are no federal drinking water nor other regulatory standards for PFOA; although there are more than two dozen bills pending in Congress that portent to regulate this space. Earlier this year the EPA issued “ Draft Interim Recommendations ” to address groundwater contaminated with PFOA, including articulating EPA’s lifetime health advisory standard for PFOA of 70 parts per trillion. Activated carbon and reverse osmosis are both used to treat PFOA in drinking water (. and you should filter your drinking water), but arguably neither remove the harmful chemicals, rather relocating or diluting the PFOA; hence the term forever chemicals. But last week, the U.S. Air Force together with partners Clarkson University and GSI Environmental conducted a test using an “enhanced contact plasma reactor, a closed system utilizing water, electricity and argon gas to degrade PFOS and PFOA in minutes.” This technology may in the future make treatability and actually removing PFOA from the environment realistic. If we are going to be good ancestors, our lofty responsibility to humanity as observed by Jonas Salk, it is critical that there be more and better science about PFOAs including methodologies to minimize adverse health effects, as these forever chemicals accumulate in human beings across the planet. Today, adverse health impacts from PFOAs can most efficiently be recognized by the marketplace and enforced by tort law in state courts, redistributing resources from those who engage in risky business activities manufactured dangerous products to those who are damaged; in lieu of some new, after the fact, one size fits all top-down government regulation in this class of chemistry, like the flawed EU measures to ban more than 4,000 chemicals in the PFOA class beginning July 4, 2020. Adverse health impacts from PFOA should be policed by the marketplace and enforced by existing tort law. Environmental Legal Kaplow LEED PFA PFOA PFOS polyfluoroalkyl Stuart Kaplow

Maryland Reverting to Certifiable In Lieu of Certified Green Building

Green Building Law Update

In response to an act of the Maryland legislature in 2018, the state is proposing a watershed revamp of its current mandatory green building requirements for new public school buildings. The public is being invited to comment on the proposal.

What You Can Say about RECs is Regulated by the FTC

Green Building Law Update

Businesses who generate renewable energy, say, by using solar panels, but sell the Renewable Energy Credits (RECs) for the renewable energy they generate shouldn’t claim they “use” renewable energy. The Federal Trade Commissions has advised that such a claim would be deceptive.

An HREC is Not a REC in a Phase I Environmental Site Assessment

Green Building Law Update

I review a large number of Phase I environmental site assessments, and year in, year out, the largest number of questions I field are about Historical Recognized Environmental Conditions.

FTC Finds Truly Organic is Not

Green Building Law Update

By way of a federal court order that became final last month, Truly Organic Inc. and its founder will pay $1.76

ESG Disclosure Simplification Act Passes Committee But Will Fail

Green Building Law Update

On September 20, 2019, the Financial Services Committee in the U.S. House of Representatives passed H.R. 4329, the ESG Disclosure Simplification Act of 2019.

EPA Rolls Back Proposed “Waters of the United States” Definition

Green Building Law Update

Last Thursday the EPA and Department of the Army announced that the agencies are repealing a 2015 rule that had proposed to expand the definition of “waters of the United States” under the Clean Water Act.

Nurdles are the Environmental Calamity of 2019

Green Building Law Update

A year ago, I thought a nurdle was a cricket term for a score by deflecting the ball rather than striking it. But in the last twelve months I learned that a nurdle is also a term for a small, lentil size, pellet of plastic that serves as raw material in the manufacture of plastic products.

25 HR Compliance Terms to Know for 2018

Green Building Law Update

In addition to the holiday parties and secret santa gift exchanges, the end of the year also brings organizational compliance processes as your HR department gets ready to wrap things up. If you’re not an expert in this area, or even if you are, there’s never a bad time for a terminology brush-up.

St. Petersburg is Bold in Mandating Envision

Green Building Law Update

The City of St. Petersburg, Florida passed a progressive ordinance last week mandating that City infrastructure projects and newly constructed and renovated City building be third party certified as green. The new Ordinance 359-H, passed by the St.

Greenbuild – The Target Rich Environment for Green People

Green Building Law Update

I am often asked, “how can I expand my green building business?” And I have offered the same response for more than a decade – attend the Greenbuild International Conference and Expo (. yes, you will have to talk with people while you are there).

Greenbuild – The Target Rich Environment for Green People

Green Building Law Update

I am often asked, “how can I expand my green building business?” And I have offered the same response for more than a decade – attend the Greenbuild International Conference and Expo (. yes, you will have to talk with people while you are there).

Radon Caused More Than 21,000 Deaths Last Year

Green Building Law Update

Radon causes more than 21,000 lung cancer deaths in the U.S. every year. Despite that it is totally preventable, radon is the number one lung cancer killer in nonsmokers. Radon is widely described as the primary source of indoor and household air pollution in the U.S.

State Not County has Authority to Regulate Solar Farms

Green Building Law Update

At a time when solar panels are de riguere a recent decision by a Maryland appellate court limiting the authority of local governments to regulate the location and specifics of construction of a solar farm has broad implications far beyond this case.

With Over $3.6 Trillion in Value You Should Pay Attention to GRESB

Green Building Law Update

For the uninitiated GRESB assesses the sustainability performance of real estate and infrastructure portfolios worldwide. GRESB is the global environmental, social and governance (ESG) benchmark for real estate assets.

RELi Could be Standard Practice in Nearly Every Real Estate Transaction

Green Building Law Update

RELi 2.0, a comprehensive rating system that provides strategies and tools for resilient building and design, is expected to be launched on Monday, November 12th. The launch of RELi 2.0

Greenbuild Clearly Showed the State of LEED is Strong

Green Building Law Update

This post is a compilation of the highlights from the just completed Greenbuild International Conference and Expo that took place last week in Chicago. Possibly more accurately stated, this is a report on the state of the LEED green building rating system. The state of LEED is strong.

EPA Cancels Pesticide Registrations to Save the Bees

Green Building Law Update

In a rare move, the EPA issued product cancellation orders for certain pesticides effective May 20, 2019.

LEED Commercial Interiors can Save the Planet

Green Building Law Update

By Katie Stanford and Stuart Kaplow. LEED Commercial Interiors projects present the best single opportunity for greening buildings. The proof is in the numbers. There are more than 5.6 million existing commercial buildings in the United States today. And despite the wildly successful U.S.

State Law Trumps on Location of Solar Panels

Green Building Law Update

“Here comes the sun, and I say, It’s all right” is how a new decision on solar energy generating stations by Maryland’s highest court begins, quoting The Beatles song, “Here Comes the Sun.”.

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USGBC Wants You to Comment on the Next Version of LEED

Green Building Law Update

The U. Green Building Council is looking for the future of LEED and has officially opened a call for feedback and ideas for the next version of LEED. This is an opportunity for anyone and everyone to influence the next version of the most widely used green building rating system in the world.

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RELi Could be Standard Practice in Nearly Every Real Estate Transaction

Green Building Law Update

RELi 2.0, a comprehensive rating system that provides strategies and tools for resilient building and design, was approved last week and is being launched on Monday, November 12th. The launch of RELi 2.0

ESG, including Advantaged by Green Building, Requires Risk Oversight

Green Building Law Update

Investments by individuals and institutions driven by environmental, social and governance matters continue to remain front and center in the minds of boards of directors, government regulators and the media.

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Green Globes New Multifamily Rating Systems Respond to the Market

Green Building Law Update

On July 11 the Green Building Initiative launched the Green Globes Multifamily for New Construction and Green Globes Multifamily for Existing Buildings.

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