Better Building: The Responsible Developer's Blog : Northwest Construction Lawyers & Attorneys : Foster Pepper Law Firm : Sustainable Building & LEED Projects in Seattle & Spokane, WA

I’ve been thinking a lot lately about the relationship between green building and sustainable development.  “Green” and “sustainable” are often used interchangeably when talking about responsible development, but they aren’t always synonymous.  While a “green” building may have achieved a significant reduction in energy consumption, it might not be a good example of “sustainable” development.  Green buildings and the efficiencies they create cannot really be considered sustainable unless they also address the broader impacts of development.  For example, an otherwise green building may actually generate a high carbon footprint if its occupants have to make a long daily commute, all alone in their cars, to get there.

Architects Joshua Prince-Ramus, Randolph Croxton and Tuomas Toivonen agree that “green building” alone is not sufficient to achieve a meaningful reduction in our ecological footprint.  In a recent article, they suggest that maximizing the existing infrastructure in our urban cores must form the basis of a sustainable future. As Prince-Ramus puts it, “urban living itself is the embodiment of sustainability.”

In addition to increasing urban density, Prince-Ramus and his co-authors present several other strategies that can be implemented to incentivize growth and development while reducing our overall carbon footprint, including the use of urban growth boundaries, transferrable development rights, community-based metrics of sustainability, and the development of more flexible urban structures that can accommodate a variety of uses.  While these aren’t necessarily new concepts, Prince-Ramus suggests that perhaps they should play a larger role when considering the overall impact of a project’s design – so that in addition to “greening” the technical aspects of design and construction, the development itself can help to positively change human behavior.  In other words, truly sustainable development requires a holistic approach, one that incorporates systemic solutions such as increasing density, limiting sprawl, and changing our automobile-centric ways.

Do you agree with Prince-Ramus and his colleagues?  What long-term strategies do you think will be most effective in reducing our ecological footprint while encouraging responsible development?
 

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In a precedent-setting opinion,¹ the Ninth Circuit Court of Appeals has ruled that stormwater runoff from logging roads that is collected in ditches, culverts and channels and discharged to surface water requires a water quality discharge permit.² While this case involves stormwater discharges from logging roads, the Court’s decision could affect other activities that rely on regulatory exemptions from the discharge permit requirements.

The timber industry and the EPA argued that (1) the Silvicultural Rule³ exempts logging road discharges from discharge permit requirements and (2) discharges were exempt under the 1987 amendments to the federal Clean Water Act. The Court rejected both arguments, relying on the broad definition of the term “point source” in the federal Clean Water Act, which regulates discharges from discrete or channeled conveyances. The Court also found that the lack of a specific statutory exemption for logging road stormwater runoff within the point source definition precluded exempting road runoff from permit requirements. Because the Court ruled that logging road runoff was an industrial activity regulated under the 1987 Clean Water Act Amendments, it declined to delay issuing its ruling.

The Court’s decision effectively eliminates the Silvicultural Rule for most logging road runoff, except for unchanneled “natural runoff,” which is not a “point source” discharge. This is the latest case to invalidate EPA rules exempting certain activities from permit requirements. In 2009, the D.C. Circuit invalidated the EPA rule exempting pesticide residue from permit requirements.⁴  In 2008. the Ninth Circuit invalidated the EPA rule exempting sewage discharges from vessels.⁵

The breadth of this decision is likely to affect other activities that either rely on EPA regulatory exemptions or involve activities that typically have not required discharge permits. The case is virtually certain to lead to additional litigation in this area.

If you have any questions, please contact Lori Terry Gregory (206.447.8902) or any lawyer in Foster Pepper’s Environmental Group.

¹  Northwest Environmental Defense Center v. Brown, __ F.3d __, 2010 WL 3222105 (9th Cir. August 17, 2010), available at http://www.ca9.uscourts.gov/datastore/opinions/2010/08/17/07-35266.pdf
²  The water quality permit at issue in this case was a National Pollution Discharge Elimination System (NPDES) Permit, which is required for discharges of pollutants from a point source into surface waters.
³  40 C.F.R. § 122.27.
⁴  National Cotton Council of America v. EPA, 553 F.3d 927, 940 (6th Cir. 2009)
⁵  Northwest Environmental Advocates v. EPA, 537 F.3d 1006 (9th Cir. 2008).
 

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Environmental Leader reports that in five years the total US green building market value is projected to increase from $71.1 billion to $173.5 billion. This represents a Compound Annual Growth Rate (CAGR) of 19.5%. The commercial green building segment of this market is expected to increase from $35.6 billion to $81.8 billion. According to the report, this surge in green building has the potential to create 2.5 million American jobs, about a 30% increase in jobs within the construction industry.

This remarkable surge of green building activity will be accompanied by a surge in the risks associated with green building. As discussed in some of our prior blogs, the key to managing these risks is to contract carefully and make sure that expectations are defined and responsibilities for those expectations are specifically assigned to the parties in the contract documents. To address some of these risks, the insurance industry offers some niche coverage for green building projects. For example, Chartis Insurance offers "green reputation coverage", designed to address the threat or reality of adverse publicity when a building fails to meet green industry standards. Coverage includes access to crisis consultants and a range of other services to mitigate adverse publicity. Chartis also offers "green indoor environment coverage", providing coverage for bodily injury claims resulting from specialized equipment and products used to improve air and water quality in green buildings.

Similarly, Fireman's Fund recently began offering a five percent discount to policyholders with Energy Star buildings, and offers "green financial incentive coverage" for policyholders that paid for green improvements to their property with help from a tax incentive or financial grant and then suffered a loss when the building did not achieve the targeted rating and the policyholder is obligated to return the benefit received. These coverages are described in more detail in an article from Rueters.

Careful contracting and thoughtful insurance coverage will help reduce the risks and enhance the benefits of green building for all contracting parties and end users as green building in public and private construction continues its exponential growth.

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Video and audio podcasts from Foster Pepper's July 26th Public Works seminar are now available.

The program provides guidance to municipal agencies on how to maximize the success of public works projects through effective contracting and project management. 

The podcast segments include:

Low Price = Good Value?  Establishing Bidder Responsibility and Performance Capacity
  Steve DiJulio, Foster Pepper PLLC
  Ted Coulson, Foster Pepper PLLC

When Low Price is Not Enough – Green Building and Alternative Procurement Methods
  Kelly Angell, Foster Pepper PLLC
  Greg Guedel, Foster Pepper PLLC

Discussion on New Housing Authority Procurement Laws
  Greg Guedel, Foster Pepper PLLC
  Michael Mirra, Tacoma Housing Authority

Project Management: Turning a Good Contract Into a Good Project
  Brad Tong, Shiels Obletz Johnsen, Inc.

The View from the Other Side: Contractor Perspectives on Facilitating Project Success
  Tom Peterson, Hoffman Construction Company

No Surprises: Contracting for End-Of-Project Closeout Certainty
  Greg Clark, Foster Pepper PLLC

• VIEW all the video files and subscribe to the RSS feed.
• LISTEN to all the audio files and subscribe to the RSS feed.

The speakers' slideshow presentations and written materials are also available at no charge, please contact Greg Guedel (206.447.8931 or guedw@foster.com) for copies.

(Audio files are in .mp3 format and require an audio player or you can listen via iTunes. Video files are in .m4v format and require QuickTime.)

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Does responsible development sometimes require that the best highest use of land is to preserve it as open space?  A growing number say yes!

For decades, glossy real estate ads have raved about vacant land with “waterfront”, “mountain view” or “sound view”, making many believe that the best highest use of such land was to develop it for human occupancy. Thankfully many now observe that due to the rapid development of the last 3 decades, the open spaces in Western Washington are shrinking. Many in the real estate development community now advocate that the best highest use of open spaces like waterfront and mountain views is to preserve them.

A recent and great example is the preservation of such precious spaces was accomplished earlier this month when a partnership resulted in the preservation of 94 acres in Puget Sound known as “Devils Head .” The acquisition of this land for $3.4 million was a joint venture with funding from government agencies, the Washington Wildlife and Recreation Program  the Salmon Recovery Funding Board  and the Pierce County Conservation Futures Program and a big assist from the Cascade Land Conservancy.

The Cascade Land Conservancy reported that this acquisition could link trails with existing open spaces to create a trail system 20 miles long. A huge positive step considering that over the last 3 decades more than 2 million acres of open spaces have been subsumed by sprawling development. Ironic that the open spaces that drew people to these areas have in large part, vanished. The Conservancy has long been concerned that over development has intensified flooding and erosion and is contributing to warmer weather and other negative climate change. In 2005 the Conservancy launched a plan called the “Cascade Agenda” that over 100 years would acquire the conservation and preservation of 1.3 million acres of waterfront and mountain view open spaces.

This recent achievement also seems to be in sync with Governor Gregoire’s Smart Communities Award program that recognizes actions like innovative and wise land use and resource management, and that recently acknowledged Skagit County for its county wide urban growth area open space plan. 

So it appears that due to responsible development, that the glossy real estate ads in the not to distant future may rave about homes that are just a short bike ride or walk away from forever preserved open spaces with “waterfront” or “mountain view” or “sound views.” Let’s hope so.         

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Interested in networking with other responsible developers, educational programs, or sponsorship opportunities?  

Here are a few upcoming events:

Selling NW Energy Star for New Homes: July 14, 10:00am – 1:00pm (online)
Are you prepared to explain the differences between energy efficient homes and standard code built homes to potential homebuyers? Attend this free webinar to learn how to leverage green built homes and answer customer questions about comfort, savings, energy efficiency, and more. Approved for 3 CEUs for Washington Realtors.

The Carbon Series: July 14-16, 9:00am – 4:00pm (Seattle, WA)
A series of workshops on climate policy and carbon footprints intended for public- and private-sector staff who must conduct a GHG inventory, prepare their organizations for mandatory state-level reporting, or work to develop strategies to respond to climate change legislation and energy policies. Register for one, two or all three days. Reduced rates are available to employees of Native American tribes; government agencies and nonprofits; students; and NAEP, NEBC, and NWAEP members.

7^th Annual Solar Fest: July 16-17 (Shoreline Community College, WA)
The Fair began in 2004 to celebrate the first solar installation on a public school in Shoreline and to help people make informed decisions regarding their use of resources including energy, transportation, and food. Showcased are organizations and businesses that apply concepts of conservation and sustainability in their business models and practices. This is the longest running event of its kind in the Puget Sound region. Opening night Friday July 16 with keynote speaker, auction benefit and reception. Fair Saturday July 17, 10:00am – 8:00pm.

July Eco-Hour hosted by EcoFab: July 22, 5:00pm – 7:30pm (Seattle, WA)
Enjoy cocktails and hors d’oeuvres at Eco-Fab’s new home in the McKinstry Innovation Center. Located near McKinstry’s Georgetown campus, the Center is where new and emerging companies come together under one roof to foster the advancement of clean, green energy technologies. Learn more about our host company, EcoFab, a social enterprise  providing development and energy conservation services for sustainable homes and neighborhoods.

Introduction to Built Green^®: August 10, 8:00am – 10:00am (Bellevue, WA)
Thinking about joining Built Green^®? Attend this two-hour introduction to the program to answer questions such as: How do I certify a project? How does the program work? Why should I become a member?

Greenbuild 2010: November 17-19 (Chicago, IL)
Greenbuild attracts professionals from all aspects of the building industry. Architects, building owners, code officials, contractors, developers, educators, engineers, facility managers, financial service providers, government agencies, green power providers, home builders, interior designers, landscape architects, nonprofit organizations, product manufacturers, schools, universities, students, and urban planners will all be at the conference to share ideas and promote greener building. Greenbuild includes over 100 educational sessions featuring world renown speakers, LEED workshops, off-site educational sessions, and Green Building tours of local sites. Past speakers include Archbishop Desmond Tutu, President Bill Clinton, Paul Hawken and David Suzuki.

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Bastyr University claims to be the first school in the country to be in line to earn a LEED Platinum certification for its just completed student housing project. Consisting of 11 three story buildings housing 132 students, the project marks Bastyr’s first addition to the school’s campus since the natural health arts and sciences school took over its current home at the 51 acre site of a former Catholic monastery in Kenmore, Washington. Bastyr formally celebrated the project opening on June 22, 2010.

Bastyr and its general contractor, Shuchart Corporation, went through many steps to reach Platinum status. Energy efficient construction was used throughout the project, including high r-value insulation, energy efficient and long lasting fiberglass windows with ultra high performance glass, and radiant floor heating with super high efficiency gas boilers. Energy efficient light fixtures, appliances, and plumbing fixtures were used throughout the project and harvested rain water will be used throughout the complex for non-drinking purposes.

During construction, the contractor was able to recycle a remarkable 96 percent of the construction waste, primarily through training of subcontractors, critical layout of recycling containers, and proactive arrangements with local facilities for recycling of materials. Benches and other items were made form scraps and leftovers, and some chairs and benches were made from the webbing of old car seat belts.

Outside, buildings are connected by a series of garden paths, courtyards, and outdoor living spaces carefully designed to be energy efficient and mitigate the impact on the local environment. Ample bike storage promotes students' use of their bikes for transportation and an extensive bioswale and sediment pond system treats recovered surface water before releasing it back slowly into neighboring wetlands.

Bastyr utilized a LEED consultant for the project, Seattle’s O’Brien and Company, and early on in the project applied for and received a grant from the King County LEED Grants Program. This program is part of the county’s “Green Tools” program to encourage sustainable building outside the city of Seattle.

Bastyr University is proud of its sparkling new sustainable building. Its president, Daniel K. Church, said: “Providing students with eco-friendly, on-campus housing is a significant milestone in furthering our mission to enhance the health and well-being of the human community.”

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Traveling north on old logging roads below Blewett Pass, as you start to emerge from the forest above Ellensburg, with the sun setting in the west, look to the east.  You’ll see a far away ridge covered with shining, white towers.  Camelot? Minas Tirith?  No, it’s Kittitas County's Wild Horse Wind Facility, now owned by Puget Sound Energy .  Wild Horse’s 149 wind turbines have blades whose diameters are larger than a commercial jet’s wingspan, and they send clean renewable energy to more than 69,000 homes.  Energy not dependent on dams, gas or coal mining, nuclear reactors or offshore oil rigs. 

So are wind farms "the" answer for renewable and economically feasible electricity?

Maybe an answer, but not "the" answer.  According to the DOE, in 2009 all of the US renewable power sources (wind, solar, etc.) generated only 3-4% of all electrical power, while coal generated 48%.  Many advocate that future development should continue to provide incentives to generate more renewable power that is both affordable and responsible (does not cause costly long term damage to our lands and waterways, like Chernoble or the recent Gulf of Mexico disaster, etc.).

Like the Federal government and other states, Washington State and its voters have provided great incentives for the responsible development of wind power, like in 2006 with I-937.  Although I-937 was under siege even before the recession, thanks to some far sighted citizens it has been protected and remains largely intact.  Accordingly, by 2020 most WA utilities companies will have to produce 15% of all the electricity they generate from renewable sources.  Our state also provides other incentives such as sales tax exemptions and grants, loans and rebates, for the production of wind power.

How does Washington wind power generation compare to other states?  Actually we should be proud, because even though Washington’s geography is not ideal for wind power, and there are far bigger states like Texas and California that also have vastly greater wind potential, we still rank number 5!

So what do the economics of green energy look like since I-937 in 2006?  As construction costs rose in 2006-2008 it dramatically increased the cost of wind power.  Wind power requires negligible fuel costs but very high capital costs.  As construction labor and material cost (like steel) spiked, the cost rose so high some work slowed or was shelved.  However, as construction costs fell in the recession, wind projects became much more viable.  In May of this year, PSE ordered another 149 wind turbines for its Lower Snake River Wind Project, with an option for 110 more.

According to GE Energy’s recent Western Wind and Solar Integration Study (“WSIS”) the cost to consumers for wind generated electricity is becoming more affordable as an increasing number of wind power plants come on line.  Improvements in technology are lowering costs too.  Note that the WSIS cost analysis does not factor in the external costs that clean wind power reduces or prevents in the form of environmental contamination related clean up, associated health care claims, destruction of habitat and wildlife, the cost of military action to protect energy supplies, not to mention the potentially huge costs of global warming due to emissions from structures powered by fossil fuels.

While wind power is not yet less expensive than other energy sources, when you factor in the savings due to the external costs that wind power largely prevents, it seems that greater production of wind farms is a must for responsible development.

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Two outer limits of the sustainability tides are playing out in New York City. One of the Big Apple’s prized icons, the Empire State Building, is in the middle of an innovative, cutting edge building retrofit that is designed to reduce energy consumption by 38% and to generate $4.4 million annual energy cost savings. Over by the Hudson River, unit owners of a $4.2 million condo unit are suing the developers, architects, engineers, and city building authority because their unit is not green enough. The two limits offer guidance for all developers involved in sustainable building.

Anthony Malkin, owner of the Empire State Building (ESB), has made a commitment not only to retrofit one of America’s best known buildings into one of the most energy efficient buildings in the Big Apple, but also to do it in a transparent manner that will provide a beacon to other property owners to follow with their own green retrofit projects. Beginning in early 2008, Malkin partnered with 5 entities to develop a proposal for the retrofit: The Clinton Climate Initiative, Jones Lang LaSalle, Rocky Mountain Institute, and Johnson Controls. The team’s charter describes their mission: 

The retrofit of the ESB into a Class A pre-war trophy building will transform the global real estate industry by transparently demonstrating how to create a competitive advantage for building owners and tenants through profitably greening existing buildings.

After assembling the data and design to do this, the retrofit project is scheduled to be completed by 2013, with 55% of the energy savings available by December 31, 2010.  See more of the details in a project white paper and hear Malkin talk about the unique aspects of the project.

Key to the project is a unique contract between ESB and Johnson Controls, called an energy services performance contract, whereby Johnson Controls guarantees certain annual energy savings, or pays the difference, for a period of 15 years. Contracts that specify the responsibilities—and consequences of non compliance---are essential to a well planned sustainable project.

Meanwhile, owners of a luxury condominium at The Riverhouse One Rockefeller Plaza are suing the developers (and its architects and engineers) for $1.5 million in damages because they say the building is not green enough. Among other claims, the owners allege their unit’s air-infiltration system and heating are not up to the green standards they were promised, having conducted an energy audit that showed cold air infiltration through doors, windows, and exterior walls that was more than 49% higher than LEED standards. See more details in a recent Wall Street Journal article.

The Riverhouse lawsuit is just the beginning as owners and tenants, promised sustainable buildings and commensurate energy savings, file suit when the actual building does not perform as promised. Courts will eventually have to determine what are green building best practices and assign liability among the potential defendants. Once again, development contracts that specify green building responsibilties and consequences of non-performance are essential to successful sustainable construction or conversion work.

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