May 26, 2010
The U.S. Green Building Council (“USGBC”) recently released a certification system for green neighborhood development, known as LEED-ND.[1] LEED-ND expands the well-known LEED system for green buildings to larger-scale projects ranging in size from two buildings to multiple buildings on sites up to 320 acres. The system incorporates the principles of new urbanism, emphasizing mixed-use planning and walkable neighborhoods, and was developed in concert with the Natural Resources Defense Council and the Congress of the New Urbanism. While LEED-ND is primarily designed for neighborhood-scale projects, it may also apply to campus-style developments, such as university campuses, military bases, resort developments, religious retreat centers or summer camps.
Some notable features of the LEED-ND system include:
- Each project must have at least one certified green building;
- A project’s site must be contiguous property, but may include “conclaves of non-conforming properties” that may be exempt from LEED-ND requirements;
- Project sponsors should have control over or title to 50% or more of the project land area.
Projects are evaluated based on a number of prerequisites and credits, earned by incorporating design elements which are grouped by category, including:
- Smart location and linkage – relates to transportation, location, and land preservation;
- Neighborhood pattern & design – relates to community character, mix of uses, and walkability;
- Green infrastructure and buildings – examines building design and construction with regard to energy and water use, and sustainable best practices;
- Innovation and design process – grants credits for “exemplary and innovative” performance, beyond existing credit structures;
- Regional priority – allows credits unique to a project’s local environmental priorities.
The LEED-ND certification process takes place in three stages:
- Stage 1 – conditional approval of plans, to enable projects to build local support;
- Stage 2 – pre-certified plans, intended for projects that have received necessary permits or are under construction, and may assist in securing funding or tenants;
- Stage 3 – to be formally certified projects must have completed construction, and have achieved all prerequisites and credits sought in the first two stages of review, subject to any intervening changes in the LEED-ND system.
Generally LEED-ND applies to newly-constructed projects, but substantial renovations of 50% or more of existing square footage may allow existing neighborhoods to apply for certification.
Implementing LEED-ND may raise a series of legal issues, because the rating system operates at a scale that has traditionally been governed by zoning laws and municipal comprehensive plans. The USGBC warns that LEED-ND should not be used a substitute for comprehensive planning, but project applicants and municipalities should be aware that implementing LEED-ND may itself trigger the need for revisions to a municipal plan or zoning code. Some of the potential issues that LEED-ND implementation may face include:
- Project applicants and municipalities need to assess the consistency of existing zoning with LEED-ND requirements. Qualifying for credits based on mixed-use neighborhood character may be rendered impossible by pre-existing single-use zoning.
- Municipalities wishing to mandate compliance with LEED-ND may create the unintended consequence of rendering significant portions of land undevelopable. This could expose a government to potential litigation, including takings claims.
- Any revisions to zoning codes to enable use of LEED-ND would require environmental review as appropriate, and should be assessed for consistency with the applicable comprehensive plan for consistency. See, e.g., NY Town Law § 272-a(c)(11) (requiring that “[a]ll town land use regulations must be in accordance with a comprehensive plan adopted pursuant to this section”).
- Site-specific rezonings to enable LEED-ND—even on large parcels—may face litigation risk in the form of spot-zoning claims.
- Large-scale projects face a risk of the LEED-ND system itself changing over time. Applicants to the USGBC should carefully note that projects are not grandfathered to LEED-ND as it existed at the time of its original application. Rather, at each new stage of review a project may be required to comply with intervening changes in LEED-ND credits and prerequisites.
One recent example of municipal incorporation of LEED-ND in the planning process is the Willets Point Development Plan (the “Willets Point Plan”) proposed in northern Queens, New York, where SPR is representing the City of New York and its Economic Development Corporation (“EDC”). According to Final Generic Environmental Impact Statement published for the project, the Willets Point Plan envisions redevelopment of a current industrial area into a mixed-use neighborhood through an Urban Renewal Plan and a rezoning tailored to the Plan’s goals. The EDC, which is sponsoring the project through acquisition of the land within the proposed development district and issuance of a Request for Proposals to potential developers, has developed an illustrative site plan designed to comply with current LEED-ND requirements, and intends to require the chosen development to achieve LEED-ND certification.
[1] LEED stands for Leadership for Energy and Environmental Design.
May 3, 2010
EPA has issued four new proposed rules to amend the Mandatory Greenhouse Gas (“GHG”) Reporting Rule. Three of the proposed rules would expand the applicability of the existing rule to cover petroleum and natural gas systems, industries that emit fluorinated GHGs, and facilities that inject and store carbon dioxide underground for the purposes of geologic sequestration or enhanced oil and gas recovery. These newly covered sources would be required to begin collecting emissions data on January 1, 2011 and to submit the first annual reports on March 31, 2012.
In addition, EPA proposes to add three reporting requirements applicable to all facilities, requiring provision of the following information: (1) the name, address, and ownership status of the reporter’s U.S. parent company, (2) the reporter’s primary and all other applicable North American Industry Classification System (“NAICS”) code(s), and (3) an indication of whether or not any of the reported emissions are from a cogeneration unit.
EPA plans to finalize all four of these proposed rules this year. Comments are due by June 11, 2010. More information can be found here.
April 29, 2010
On April 28, 2010, Secretary of the Interior Ken Salazar approved Cape Wind Associates, LLC’s proposed $1 billion, 130-turbine wind farm off the coast of Cape Cod in Nantucket Sound, about five miles from the nearest shoreline. The project, when constructed, would be the first wind energy project on the Outer Continental Shelf, and would generate enough energy to power more than 200,000 homes in Massachusetts. The scale of the project is significant; it would cover approximately 25 square miles, and the tip of the highest blade of each turbine would reach 440 feet above the surface of the water.
Supporters, including the Sierra Club and Greenpeace, argue that the project would provide a clean, renewable source of energy and hundreds of construction jobs, and would decrease the region’s reliance on fossil fuels and benefit the environment by lowering emissions of greenhouse gases.
Opponents have focused on negative impacts to natural beauty and the surrounding area’s historic landmarks. In addition, they claim that infrastructure improvements will result in sharply increased costs over those for conventional power. The Wampanoag tribe, which requires unobstructed views of the sunrise for sacred ceremonies, has announced that it will challenge the project for violations of tribal rights.
In response to concerns expressed during the consultations with tribes and the Advisory Council on Historic Preservation, the Department of the Interior (“DOI”) required the developer to change the design and configuration of the wind farm to mitigate potential visual and historic impacts.
This is not the final hurdle that this project must clear, however. The Federal Aviation Administration has yet to make a final determination on the project and the developer has not yet entered into a contract with the local utility, National Grid, to carry the power. Nine state and local permits are being appealed in the courts, and nearly a dozen parties have filed notices of intention to sue for violations of various environmental laws and regulations.
Despite the remaining steps before construction may begin, DOI’s approval of the Cape Wind project is seen as a positive sign for several other proposed offshore wind projects along the eastern seaboard. Each project will face its own complex federal, state and local permitting issues, but DOI’s action on Cape Wind will likely provide valuable political momentum to other proposed offshore wind projects.
Read the full DOI press release here.
April 9, 2010
DEC recently released its proposed policy document DER-31: Green Remediation, which sets forth DEC’s preference for remediating sites in a way that promotes sustainability. The new policy would apply to the investigation and remediation of sites under DEC’s Spill Response Program, the Inactive Hazardous Waste Disposal Site Remedial Program, the Environmental Restoration Program, the Brownfield Cleanup Program and the Voluntary Cleanup Program. It would apply to all activities at new sites and to subsequent phases of investigation or remediation at sites currently in those programs.
The draft identifies the major green concepts to be considered, which include reducing greenhouse gas (“GHG”) emissions, increasing energy efficiency, reducing waste and increasing recycling, and maximizing habitat value and creating habitat where possible. In addition, DEC identifies specific techniques that could be employed to “green” a remedial option, such as utilizing clean diesel to reduce emissions, incorporating green building design and utilizing native vegetation to reduce water usage. DEC repeatedly emphasizes that concepts of green remediation cannot be used to justify the “no action” alternative or to support a less protective remedy.
Notably, for state-funded cleanups, DEC would now require the use of renewable energy and/or the purchase of renewable energy credits to offset 100% of the electricity required to implement a remedy. For other remedial projects, DEC would “strongly encourage[e]” compliance with this requirement, unless a site-specific evaluation demonstrated that it was impracticable or favored an alternative green approach.
All remedial alternatives analysis and decision documents would be required to describe those green remediation principles considered in the remedy selection process. In addition, such documents would now have to include an analysis of GHG emissions and options to minimize such emissions. Final engineering reports would also need to include a discussion of the green remediation techniques utilized in the remedial program.
A copy of the proposed policy is available here (pdf). DEC is accepting comments on the draft until April 30, 2010.
March 18, 2010
On March 15, the International Code Council (“ICC”), with cooperation from the American Institute of Architects and ASTM International, released a draft International Green Construction Code, Public Version 1.0 (the “Code”) that once finalized will provide a model code for the regulation of the construction of new and existing commercial buildings. ICC, which develops residential and commercial building codes used by most U.S. states and municipalities, sees the Code as a baseline to be integrated into and complement local codes, and to be used as an overlay to other ICC Codes. The model code notably provides “jurisdictional electives” that “allow customization of the code beyond its baseline provisions to address local priorities and conditions.”
The draft model Code’s emphasis is on building performance, and includes a requirement for building system performance verification and building owner education to ensure that the best energy-efficient practices are followed. It establishes minimum requirements related to conserving energy, natural resources, and materials, employing renewable energy technologies to improve indoor and outdoor air quality, and developing building operations and maintenance. A sample ordinance is included for local governments to adopt.
The recently released New York City Greener Greater Buildings Plan, which included four energy conservation and efficiency bills signed by Mayor Bloomberg, may complement the Code. However, the Code, once finalized and adopted, will likely provide a more expansive regulatory baseline for green construction.
The Code is open to public comment until May 14, and the final version is expected to be released in the beginning of 2012. The initial public version may be used by jurisdictions nationally and internationally until the final version is published.
The Code, and directions on submitting comments, are available here.
January 5, 2010
On December 28, 2009, Mayor Michael Bloomberg signed into law four bills that together comprise New York City’s Greener, Greater Buildings Plan. The legislation, which the Mayor described as “the most significant action to date” to achieving the City’s PlaNYC emissions goals—30 percent reduction of annual greenhouse gas emissions below 2005 levels by 2030—is designed to reduce greenhouse gas emissions by 4.75 percent.
The first of the four bills, Intro 476-A, requires private buildings that exceed 50,000 square feet and City buildings that exceed 10,000 square feet to track and asses their energy and water use by utilizing an internet “benchmarking tool” developed by the federal Environmental Protection Agency. Energy and water use will be reported on an annual basis, and the City will make such information available to the public.
Intro 564-A amends the City’s administrative code to establish an energy conservation construction code for the City. The new energy code sets energy performance standards for covered residential and commercial buildings and applies to all renovations to such buildings. This legislation represents a more stringent approach than that of the New York State Energy Code, the standards of which apply to renovation projects only if such projects entail the replacement of at least fifty percent of a particular building system.
Intro 967-A amends the City’s administrative code to require the performance of energy efficiency audits and the submission of energy efficiency reports for buildings that exceed 50,000 square feet. An energy audit must identify all reasonable energy efficiency and retrofit measures that would reduce energy use and the costs and savings of such measures. Building owners must implement energy efficient maintenance practices prior to the filing of the energy efficiency report for their building. Intro 967-A also amends the New York City Charter to require City buildings to implement those retrofits that have been recommended in the buildings’ energy audits that will pay for themselves in seven years in energy savings.
The fourth bill, Intro 973, calls for the upgrade of lighting systems in commercial buildings exceeding 50,000 square feet before 2025. The legislation also requires that electrical consumption by certain commercial tenants be measured by sub-meters.
In addition to the new legislation, the City’s Greener, Greater Buildings Plan establishes a working group designed to assess green workforce training needs and a revolving loan fund to help finance energy efficient retrofits.
December 4, 2009
On November 19, The AES Corporation (“AES”) entered into a settlement with the Attorney General of the State of New York (“NYAG”) regarding disclosure of climate change risk to investors. This is the third such settlement with the NYAG by a major power company (the other two settling power companies were Xcel Energy and Dynegy). The terms of the NYAG settlements provide a useful roadmap for climate change disclosure, and should be studied carefully by energy, industrial and other companies with significant carbon footprints. In brief summary, the settlement requires each company (on an annual basis) to:
- Analyze material financial risks associated with GHG laws and regulation. This includes:
- identification of current GHG laws and regulations in the states and countries where the companies operate (including the Regional Greenhouse Gas Initiative (RGGI);
- discussion of expected trends in GHG laws and regulations; and
- analysis of the material financial impact (if any) of these laws and regulations on the company’s business.
- Analyze material financial risks from climate change litigation. This includes:
- a description of any climate change litigation involving the company the outcome of which is likely to have a material financial effect; and
- any climate change-related decisions issued by the Supreme Court of the United States, the US Court of Appeals or any court in any jurisdiction in which the company operates, that the company concludes are likely to have a material financial impact on the company’s business.
- Analyze material financial risks from the physical impacts of climate change. This includes material financial risks to the company arising from increases in sea level and changes in weather conditions (such as extreme weather, droughts or water shortages and changes in temperature).
- Analyze strategies to manage climate change risk and GHG emissions. To the extent that the company’s GHG emissions (or the impacts of climate change on company operations) materially impact its financial exposure, the company is required to:
- state its current position on climate change;
- estimate its GHG emissions for the reporting year;
- identify expected GHG emission from new plants that are subject to federal or state permitting;
- include strategies to reduce its climate change risk and adapt to the physical impacts of climate change;
- identify the results of such strategies; and
- address the company’s corporate governance process applicable to climate change issues, including the role of the board of directors and whether officer compensation is based on meeting climate change objectives.
Only a few days after the AES settlement was announced, the NYAG joined a supplemental petition to the Securities and Exchange Commission (SEC) filed by a coalition of institutional investors, asset managers and environmental organizations renewing its call for interpretive guidance on climate risk disclosure. The supplemental petition cites a number of new developments that make the need for national guidance on climate change risk even more compelling than it was when the coalition filed its original petition in 2007. Those developments include:
- Increasing scientific evidence that climate change is happening at a more rapid pace than had previously been predicted;
- Current EPA regulations requiring reporting of greenhouse gas (GHG) emissions;
- The progression of proposed cap and trade legislation through Congress;
- EPA’s proposed finding that GHGs endanger human health and welfare;
- EPA’s proposed “tailoring rule” that would require GHG permitting under the Clean Air Act for large stationary sources; and
- Recent appellate court decisions recognizing standing and federal court jurisdiction over climate change claims.
In a speech before the Corporate Counsel Institute at Northwestern University School of Law on October 9, SEC Commissioner Elisse B. Walter stated:
We are taking a very serious look at our disclosure system in [the climate change] area. Although I’ve stated publicly that we are not an agency populated with climate experts, we are taking affirmative steps to better educate ourselves. I have recently met with a number of experts who analyze the risks and opportunities posed by climate change. Discussions at these meetings have confirmed my belief that climate change is a very serious issue. And I believe that it is time for us to consider issuing interpretive guidance regarding disclosure in this area.
Although Commissioner Walter was speaking for herself and not making an official pronouncement on behalf of the SEC, two working groups have been created within the SEC to study the issue. It appears that the petition filed in 2007 seeking interpretive guidance from the SEC on climate change disclosure is receiving more favorable consideration now than was the case under the prior administration.
« Newer Posts — Older Posts »
|
|
| |
|
