Why does Big Chem hate LEED 2012 so much that it cajoled a bipartisan group of 56 House lawmakers to send a letter urging the GSA to abandon LEED unless the USGBC lightens up on chemical companies and plastics makers?

Rather than simply answering this question with a cynical “duh, because our politicians are bought and paid for by wealthy industrialists,” let’s instead consider whether or not the fears of our esteemed public servants (and their wealthy industrialist benefactors) are grounded in truth.

First we’ll set the stage.  The aforementioned letter dated May 18, 2012 explains that our lawmakers are “deeply concerned that the LEED rating system is becoming a tool to punish chemical companies and plastics makers,” most notably those who make “vinyl flooring, roofing, [and] wire.”  After some obligatory fear-mongering about “significant job losses” to chosen industries, the letter delivers its punch line by asking the GSA to “stop using the LEED rating system” unless USGBC reconsiders “these harmful provisions in LEED 2012.”

Now we’ll separate fact from fiction by taking quotes from the letter and following them up with some data:

• “The proposed LEED 2012 rating system … will eliminate the use of dozens of materials and hundreds of proven building products.”

FACT:   The latest draft of LEED 2012 doesn’t “eliminate” any of the chemicals or products referenced in the letter.  Rather, the credit at issue (“Avoidance of Chemicals of Concern”) has already been modified to incentivize use of less harmful products and materials; it does not punish or “eliminate” anything.

• “US manufacturers have no ability to participate in the development.”

FACT: There have been four separate public comment periods on each evolving draft of LEED 2012, the most recent of which remains open through May 28.  There have been thousands of comments received, and considered, and the comments themselves are even available for review online.

• “[T]he federal government should not base these decisions solely on a program whose reach has grown to be counterintuitive to this mission … while wasting taxpayer dollars.”

FACT: A recent study of a sampling of U.S. government LEED buildings found that “sustainably designed buildings use less energy and water … cost less to maintain, and have occupants who are more satisfied than those working in typical buildings.”  Compared to national averages, buildings in the study consumed 25% less energy and realized 19% lower aggregate operational costs.

Please check the list of lawmakers who signed the letter to see if your representative is among them.  If so, consider helping inform your representative about the truth, because the truth will set LEED 2012 free.

Only in California could two Farmers get sued for stealing LEED-related trade secrets.  Brothers Sam and Tyler Farmer (sorry for the bad “farmer” joke) purportedly had just several years of experience between them when hired by a company called DGP (Drew George & Partners, Inc.) as “Research Assistants.”  DGP says they worked their way up to management, and eventually ownership positions, before abandoning DGP and stealing (in legalese, “misappropriating”) various trade secrets, including a LEED scorecard and customer lists.

The Farmers deny any wrongdoing.

The stage is set for what could be one of the first green building-related lawsuits over theft of trade secrets and a host of other legal nasties (“causes of action”), including Breach of Duty of Loyalty, Breach of Contract, Intentional Interference with Economic Relationship, and the friendly-sounding but not at all magnanimous Aiding and Abetting.

In other words, the exact kinds of causes of action that the litigators at Ohio Green Building Law have tried and won for millions of dollars.

Did the Farmers do anything wrong?  Is DGP just litigating for sport?  Will the case settle before trial?  These and other questions will be answered in the weeks ahead as OGBL begins its multipart series on the ins and outs of a green building trade secret lawsuit.

Got a question about this lawsuit we can answer?  Post a comment or contact us.

Thanks to our law clerk Alex Pierce for his research contribution to this post.

The Office of Energy Efficiency and Renewable Energy hosted a webinar in March to coincide with the launch of the website. The webinar provided general strategies for using green leases and is available for replay online.

For more information on green leases (and for GBCI credits), I will going over some basics on April 16th at DesignColumbus 2012.  Along with Craig Miller from Duffy+Duffy Cost Segregation Services,  and Joe Paterniti from Key Bank, we will be presenting a seminar entitled Economic, Legal and Tax Benefits of Green Buildings. Hope to see you there!

The Columbus Dispatch recently reported that Tower 10, LLC (an ownershp group led by Don Casto and Robert Meyers) plans to invest over $20,000,000 to renovate and modernize the iconic LeVeque Tower.  Can this new ownership group learn any lessons from the recent renovation of the Empire State Building?

In a recent Huffington Post Interview, Anthony Malkin (President of Malkin Holdings, owner of the Empire State Building), talked about the economic realities behind the energy efficiency and green building choices that his renovation team made.  Mincing no words, Malkin notes that “[b]ike racks and showers [ed: two oft-maligned elements that can qualify for points in furtherance of LEED certification] are not going to change the world,” so his group “focused on doing things which make economic sense.”

To the Empire State Building ownership, this meant delivering what top-tier tenants demand.  Malkin says that “better credit tenants worldwide have mandates to reduce their environmental impact and increase their sustainability … the most commonly used marker to date has been LEED [ed: the Empire State Building earned LEED EBOM Gold] …. This is a major draw for the highest quality tenants, and as they lead others will follow.”  As far as the economic realities, Malkin reports that “ integrating energy efficiency into our plans, taking the right steps, in the right order, unfolded the opportunity for greater savings with a three year payback.”

If top tenants demand reduced environmental impact, and the cost of properly executed energy efficient features can be recovered in as little as 3 years, the takeaway for LeVeque Tower would seem obvious.  Turner Construction (contractor in charge of the LeVeque renovation) is a green building powerhouse, but so far there’s been little mention from the design team about either energy efficiency or sustainability on the project.  Should the ownership group consider LEED, the City of Columbus even offers an incentive program that could offset the registration and documentation fees.

Superficial upgrades like the terra cotta facelift will be nice.  Following the lead of the Empire State Building, and incorporating cost-effective energy efficiency and sustainability upgrades that sophisticated tenants expect, would really be something.

“The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” William Arthur Ward

When it comes to LEED, are you a pessimist, an optimist, or a realist?  Some realists among us are currently helping determine the Regional Priority credits for LEED 2012.  Regional Priority credits are those credits that – when earned by a project – reward one bonus point per credit.

Led by Regionalization Committee Chair Allen Schaeffer, the USGBC-COH will be working from now until May 31 to select the regional credits for each LEED 2012 rating system.

So far the RegCom has identified 5 issues deemed to be of paramount importance to Central Ohio:

1. Resilient and Durable Development

2. Local Energy Generation / Renewable Energy

3. Infill redevelopment & Farmland Preservation

4. Education

5. Stormwater Management

The gory details about each of these 5 target imperatives are recounted below.  Do you agree, disagree, or otherwise feel strongly enough about this process to get involved?  Then comment below, or reach out to directly to Allen … or forever hold your peace.

Regional Issue: Resilient & Durable Development

Development with emphasis on resiliency supports the transformation of current highly energy and resource intensive design and construction into lower impact communities and buildings. Resilient & Durable development and buildings conserve resources, and can reduce life cycle cost of whole facilities. Development and construction with a higher degree of durability decrease the volume of materials going to landfills, extend the life cycle of materials, and reduce the total embodied energy, CO2 emissions and energy consumption of the users for decades. Prioritizing this approach is especially important in a region with a long history of established practices. It will help offset future stresses to the social, economic, and infrastructure of the region to help maintain essentially the same functions, structures, systems, and identity.

Regional Issue: Local Energy Generation / Renewable Energy

Coal fired electricity represents 86% of electricity generated in the state of Ohio, including the area supported by the Central Ohio USGBC chapter. The GHG and health impacts of this non-renewable fuel source are heightened with the net inefficiency of the existing power transmission grid. Investment in and the support of distributed energy resource/site-based generation, both renewable and non-renewable, is critical to the future growth, health and prosperity of the region. By taking a different approach to how and where energy is generated, the region can take a leadership role in promoting alternative energy generation and delivery methods.

Regional Issue: Infill redevelopment & Farmland Preservation

Increasing the density of already occupied land areas, not only in the larger dense cities but also in rural communities, immediately reduces the pressure to develop agricultural land. Building in areas with infrastructure in place pushes the modernization of systems, lowers overall living and governing costs, and revitalizes communities with improved tax bases and localized services. Preserving agricultural assets protects one of Ohio’s largest and oldest industries, farming, not just for the traditional food crops but for the growth of bio-based industries. The significance of infill development and greenfield preservation is critical to the long term viability and health of our region.

Regional Issue: Education

The education of building users and community members on the features, controls, and benefits of sustainable options is crucial to reducing environmental impacts across the Central Ohio UGBC Chapter area. Efficient strategies and systems do not assure sustainability throughout the life of a building without “Smart Users”. Educating building owners and operators is vital to maintain the indoor health of an environment, lower operational costs, improve occupant satisfaction & success, and extend equipment lifecycles. Additionally, educating public officials, regulators, the design / construction sector and the community at large about successful choices and results creates ongoing momentum for implementing sustainable policies.

Regional Issue: Stormwater Management

The Central Ohio USGBC Chapter area currently enjoys an abundance of high quality water resources that support communities, agriculture and industry. All of these components impact the sustainability of our watersheds and all are also threatened by the degradation of this resource. Mismanagement of stormwater and floodplain development are already causing critical issues with downcutting in tributary streams, streambank failures, and regularly threatening roads, utilities, and property. Higher intensity land use creates more visible problems with runoff quantity, quality, and temperature, but detached and rural development carry the same threats. Responsible Stormwater Management protects more than just water-based habitats and downstream neighbors; it preserves the sustainability of local existence and protects the most valuable regional natural resource. The ongoing lack of urgency in our area makes this among the highest environmental issues needing wider assistance.

The LEED 2012 third public comment period is open from March 1-20, 2012.  Members of the public can comment on any substantive changes made since the second public comment period (which ended September 14, 2011).  After the latest comment period process concludes, USGBC reports that LEED 2012 will be balloted in June and launched in November.

LEED 2012 is designed to expand the market sectors able to use LEED, and to make the rating system more technically stringent and user-friendly.

LEED 2012 reworks the rating systems by grouping them under major headings, and it introduces new categories distinguished by specific building type, sector, and project scope.

The five grouped rating system categories are Building Design and Construction (BD+C); Existing Buildings: Operating and Maintenance (EB:OM); Homes, Interior Design and Construction (ID+C); and Neighborhood Development (ND). The update proposes 18 rating systems across the 5 groups.

The BD+C group includes the following rating systems: New Construction, Core & Shell, Schools, Retail, Data Centers, Warehouse and Distribution Centers, Hospitality, and Healthcare.

EB:OM will contain the following individual rating systems: EB:O&M, EB:O&M Schools, EB:O&M Retail, EB:O&M Data Center, EB:O&M Hospitality, and EB:O&M Warehouses and Distribution Centers.

The Homes group covers the Homes (Single Family and Low-Rise Multi-Family) and Mid-Rise (Multi-Family) rating systems.

ID+C covers Commercial Interiors, Retail, and Hospitality rating systems.

ND includes the new Neighborhood Development Plan rating system and the existing Neighborhood Development rating system.

LEED 2012 proposes a number of changes to each of the credit categories, including the addition of three new credit categories.

The original seven credit categories (Sustainable Sites, Water Efficiency, Energy and Atmosphere, Materials and Resources, Indoor Environmental Quality, Innovation in Design, and Regional Priority) will be supplemented by the three new credit categories: Integrative Process, Location and Transportation, and Performance.

The number of prerequisites has also increased from nine to fifteen.

USGBC offers online synopses of the changes by rating system and the changes by credit category.

Do you sleep like a baby?  Or do you have legal concerns (green or otherwise) that keep you up at night?

An attorney (litigator) LEED AP (and USGBC Chapter Vice Chair) wants to know.

Comment below and tell me what’s on your mind.  Is it how to lock down contract terms?  Standard of care?  Construction reform? Government relations/advocacy? How changing laws will impact your business? Enforcing your rights?  Defending a lawsuit/arbitration?  Something else?

What do you want to learn more about in relation to the law and your business?

Governator Arnold Schwarzenegger, hosted earlier this morning by the Columbus Metropolitan Club, spoke candidly and compellingly about his personal struggles, why he loves Columbus, the need for more bipartisanship in politics, thankfulness for our veterans, and his advocacy for a stronger American energy policy.

At a breakfast event at the Downtown Athletic Club, Schwarzenegger and friend/partner Jim Lorimer were interviewed (and interviewed one another) for a good hour about their friendship and life lessons.  Without being asked, Schwarzenegger brought up his divorce from Maria Shriver.  Asked what makes Columbus great, Schwarzenegger cited the unique level of cooperation between government and the private sector. Arnold’s key to success: be passionate and never let anybody tell you something can’t be done.

After the interview portion, the audience got its chance to ask its questions.  Out of the box, Schwarzenegger was asked what needs to change about politics and government.  Without flinching, he said that the inability of the right and left to come together and represent people instead of parties was the greatest shame.

Failure to develop a coherent energy policy was a close second.  Becoming more animated and emphatic, Schwarzenegger noted that every President since Eisenhower has talked of weaning our dependence on foreign oil, but our consumption only increases, enriching our enemies and weakening our economy.  Passionate about our health, Arnold is critical of the pollution emitted by fossil fuels.  Recognizing that no matter how much we drill, our domestic resources are finite and will one day expire (leaving us even more helpless to control our own destiny), the Governator extolled the virtues of secure, renewable energy sources.  Railing against politicians’ failure to develop a coherent energy policy, Arnold said America is like “the greatest ship in the ocean, but with no captain.”

What does any of this have to do with green building?  One area where Ohio leads every state in the union, including Schwarzenegger’s beloved California, is in green school construction.  At the recent Ohio Green Schools Rally, the Central Ohio USGBC Chapter hosted nationally-renowned keynote speaker Rachel Gutter, Director of the USGBC Center for Green Schools, at the LEED Gold eSTEM Academy in Reynoldsburg.  Not quite the Arnold Classic, but it was the coming out party for the green schools movement in the Buckeye State.

Back to the CMC/ACC event, the most poignant moment might have been when an Afghanistan veteran spoke of how he used Schwarzenegger’s body building encyclopedia to launch a weightlifting club with fellow soldiers, and thanked Arnold for being such an inspiration.  Again without blinking, Schwarzenegger thanked the soldier and launched a five-minute soliloquy about how the men and women of our military are the reason why this country is the greatest, and without them he would never have had the opportunity to immigrate and succeeed.

He finished the discussion by listing the various movies and projects that occupy his time these days, leaving no hint that the nearly 65-year old has lost any of his own energy.

Flawed and charismatic, Schwarzenegger sees great things about Columbus, and he’s still passionate about his beliefs about what we can do to make ourselves, our region, and our country even greater.

As you may remember from previous posts on the case,  in 2007 the City of Albuquerque enacted an energy code (with both prescriptive and performance paths) aimed at increasing energy efficiency in buildings within its borders.  The code did not sit well with a number of HVAC trade associations and contractors and they filed suit against the City alleging that the energy code required HVAC equipment that was more efficient than standards set by the Federal Government.  The plaintiffs argued that because the Albuquerque Energy Code and the Federal Law conflicted, that the Federal law “preempted”  the energy code.  If a Court determines that a State or Local Law is preempted by Federal Law, then the State or Local law is prohibited from taking effect.

In 2008, the Federal District Court in New Mexico granted the Plaintiffs’ request for a preliminary injunction. The injunction prevented the City’s energy code from going into effect.  In granting the injunction, The District Court Judge determined that the City’s energy code would most likely be preempted.

Then, in 2010, the Federal District Court partially granted the Plaintiffs Motion for Summary Judgment, and held that the prescriptive paths for compliance with the code were preempted by Federal Law.

In last month’s decision, the Court finally ruled on whether the performance path is also preempted by Federal Law.  However, instead of addressing the issue directly, the Court did an end-around. It held that the performance path and the prescriptive paths could not be severed, and thus, “all provisions of the Code that dealt with HVAC equipment are invalid and unenforceable.”

It is important to note that this issue was also addressed in a case in Washington State –  BIA v. Washington State Building Council . In that case, with similar facts, a Washington District Court held that the Washington State Energy Code was not preempted by Federal Law.

Both of these decisions have important consequences for Cities looking to create a new energy code or to improve or change their current code to require prescribed paths for energy efficiency.  Although the BIA case has slightly different facts, it creates a split between jurisdictions when questions of whether local and state energy codes are preempted by federal law.  Until this incongruity in the law is cleared up, we may see little movement by cities and states to enact their own energy codes.

Just a few more days until the inaugural Ohio Green Schools Rally (Wednesday, February 22, at Reynoldsburg eSTEM Academy).  Attendees will earn up to 4 GBCI credits, hear an inspiring keynote from USGBC Center for Green Schools Director Rachel Gutter, tour an exceptional green school, choose from 3 outstanding breakout educational sessions, attend closing remarks from Reynoldsburg City Schools Assistant Superintendent Dr. Dan Hoffman, then enjoy networking and complimentary beverages at a nearby happy hour.  Comparable GBCI events cost hundreds, but USGBC-Central Ohio offers all this for just $35!  Sign up now and learn how green schools are helping transform the Central Ohio built environment to be more healthy, prosperous and sustainable!

Event information and registration at the following link: http://ohiogreenschoolsrally-rss.eventbrite.com/