Originally published Wednesday, 04 September 2013

Written by John Sier

Much like Kermit the Frog’s plaintive song, being green isn’t easy—but it could become mandatory in designing, constructing, and renovating buildings. The trend across the country has been to try to incorporate “green,” “sustainable,” and “environmentally responsible” principles into the design and construction process.

Much like Kermit the Frog’s plaintive song, being green isn’t easy—but it could become mandatory in designing, constructing, and renovating buildings. The trend across the country has been to try to incorporate “green,” “sustainable,” and “environmentally responsible” principles into the design and construction process. Typically, the extent those principles are incorporated depends on the economic viability of the project in connection with the cost of construction. The selection of materials, equipment, and layout has normally been a financial decision—whether the Owner can obtain a return on the investment within a reasonable period of time. However, with the publication of the International Green Construction Code (IgCC) on March 28, 2012, some of these optional decisions could become mandatory if your state adopts and implements all or portions of the IgCC.

Currently, a handful of states (MD, RI, FL, NC, OR) have adopted the IgCC in some form, and several municipalities have enacted portions of the IgCC as part of the local code requirements. Generally, the IgCC applies to all new construction and existing buildings, including residential properties over three-stories high. Aside from the scope of the IgCC, the direction and intent of the Code is very different from existing building codes. Currently, state and local building codes prescribe certain baseline expectations and practices for constructing a safe structure, but those codes typically do not address environmental matters nor do they mandate operational behavior after construction. The IgCC, on the other hand, takes some aspirational goals and converts them into mandates. For example, the IgCC requires that 50 percent of construction waste be diverted from landfills, and that 55 percent of building materials must be recycled or recyclable or indigenous to the location of the project. Further, the building’s energy usage should not exceed 51 percent of the 2000 standards of the International Energy Conservation Code.

What are now best practices or goals could become the minimum requirements, increasing the risk profile of many projects and potentially triggering financing, insurance, and liability issues. According to the American Institute of Architects (AIA), which is one of the major proponents of the IgCC, the IgCC is intended to increase the positive impacts of the built environment on the natural environment and the building occupants by covering natural resources, materials, water and energy conservation, operations and maintenance for new and existing buildings. The IgCC does not simply prescribe mandates, but also includes performance expectations and outcome-based performance criteria that require continuous monitoring and measurement to demonstrate compliance.

The rapid drive to make the construction industry and the built environment more environmentally conscious is reflected by the speed of acceptance of the Leadership in Energy and Environmental Design (LEED) Certification program administered by the United States Green Building Council (USGBC). Despite the official sounding name, the USGBC is a voluntary, non-profit organization established by a handful of construction professionals in 1993 to promote sustainability in the building and construction industry. The USGBC has no role in government, but as of May 2011, the LEED certification program has found its way into the legal requirements imposed by 400 local jurisdictions, 35 state government, and 14 federal agencies or departments. The LEED certification program overlays the local construction code and addresses environment-related issues rather than safety. Based on a point system, the LEED program examines the sustainability of the site, water efficiency and management, energy usage and conservation, atmosphere, materials, resource and indoor environmental quality to evaluate the level of certification that the project could achieve. Many of the concepts and ideas of the LEED program found their way into the IgCC, which in turn, is evolving into the legal standard for construction rather than the aspirational goal.

Simultaneous with this expanding adoption of the IgCC, the Federal Trade Commission (FTC) has updated its “Green Guides,” which establish certain requirements as a condition for a manufacturer or service provider to claim that its products or services have certain characteristics. While “green” is too difficult to define, several terms such as “renewable,” “degradable,” and “compostable” are defined by the FTC as is the term “recycled,” which likewise has significance in the IgCC. To be considered “recycled,” the materials must “have been recovered or otherwise diverted from the waste stream, either during the manufacturing process (pre-consumer) or after consumer use (post-consumer). If the source of recycled content includes pre-consumer material, the advertiser should have substantiation that the pre-consumer material would otherwise have entered the waste stream.” While the seller is required to comply with the FTC Green Guides, the building Owner is responsible for compliance with code requirements, such as the IgCC. Thus, the building Owner will have a greater role and responsibility for reviewing, approving, tracking, and documenting the materials used on new construction and renovation.

What has been a laudable effort to incorporate environmentally-friendly practices into a construction project has the high likelihood of becoming a mandate with the attendant impact on the direct cost of construction as well as the continuing cost of maintaining compliance, including the record-keeping necessary to demonstrate compliance. The trend is clearly moving in the direction of requiring green behavior, but property Owners and construction professionals should carefully examine any potential statutes and ordinances to make sure that the effort to become more green does not stifle otherwise beneficial development.

There were excellent discussions of the IgCC and sustainable construction issues at the most recent COAA meeting in Atlanta. Those presentations are available for review at the COAA website, www.coaa.org. To access the presentations, log in, select “Members Only Content,” and then “Archives.”

John Sier, with the firm of Kitch Drutchas Wagner Valitutti & Sherborook in Detroit, Michigan, is Associate Counsel to COAA.