Hawaii Green Building Law

USA…USA…USA. This chant can be the rallying cry for fans of the Olympics, the World Cup and … sustainable building.

One of the biggest factor in the future growth of the sustainable building industry in Hawaii is the federal government.

1) The American Recovery and Reinvestment Act invested more than $25 billion in sustainable buildings.

2) The Government Services Administration (GSA) requires all federal government agencies to meet sustainability goals, including increasing water and energy efficiency and diverting waste and construction materials from landfills.

3) The GSA requires that all new federal construction projects and substantial renovations must acquire LEED Silver certification.

4) The United States Department of Housing and Urban Development announced that LEED for Neighborhood Development will be applied to the evaluation process in awarding $3.25 billion in Sustainable Communities Planning grant funds.

Hawaii is beginning to realize the effects of the federal government’s investment in sustainability. At least 44 of the projects registered with the United States Green Building Council to achieve LEED certification are federal government projects.

Last year there were 146 projects registered for LEED certification in Hawaii. Of the 146 registered projects, 14 attained LEED certification by July 2009.

Add 10 more to the list. As of July 2010, there are 24 Hawaii projects that have attained LEED certification. The list includes three platinum projects:

Hawaii Gateway Energy Center at NELHA;
Halau Ho`olako – Community Center;
Group 70 International 2nd Floor Renovation.

There are also 232 Hawaii projects registered for LEED certification.

While the number of sustainable building projects in Hawaii is growing, the figures still lag behind metropolitan areas throughout the county. For instance, Washington D.C., which has a metropolitan population comparable to Honolulu, has more than 80 LEED certified projects.

In upcoming posts we will discuss factors that will drive the expansion of sustainable building projects in Hawaii in the future.

Next month I will be a presenter at the 11th Biennial Governors Pacific-Rim
Safety and Health Conference 2010. In preparing for the presentation I have been focusing on safety issues related to green development.

Just because a project is “green” does not necessarily mean that it is safe, particularly for the workers constructing the building. For instance, low VOC paints often include potentially toxic materials, such as silica, which could be harmful to the painter.

In addition, fly ash (a waste product of coal-fired power plants) is commonly used as a partial replacement to portland cement and is known to increase concrete’s constructibility, durability and sustainability. Use of fly ash contributes to achieving LEED credits for using recycled materials in construction. In addition to diverting material from landfills, proponents of fly ash tout that it conserves energy by reducing the need for standard materials such as cement, crushed stone, and lime, all of which require energy to be produced.

Fly ash, however, is being described as the “new asbestos” and the U.S. Environmental Protection Agency is considering reclassifying fly ash as a hazardous waste under Subtitle C of the Resource Conservation and Recovery Act. The action is a response to the Dec. 22, 2008, collapse of an earthen retaining wall of a containment structure at a Tennessee coal plant. The failure sent 5.4 million cu yd of toxic sludge, containing fly ash and water, flowing over 300 acres. The spill is considered the worst breech of its kind in the U.S.

Critics of fly ash believe that some buildings have an increase in toxic indoor air contamination due to the use of fly ash that has been used as an additive in concrete. Critics cite to a building in Hong Kong where:

researchers suspect that the combination of fly ash and granite aggregation in concrete causes the building to be “hot” with the radioactive gas radon when the air-conditioning systems are shut down at night and on weekends. As a result, night and weekend workers may be exposed to higher and potentially dangerous radon levels.

Exposure to potential toxic substances creates another risk that must be considered prior to developing a green building.

The U.S. military plans on saving more than $1.6 billion through green building projects and is investing $2.7 billion this year to improve energy efficiency. Improvements include more energy-efficient lighting, low-flow toilets, heating and air-conditioning upgrades,and solar panels.

There are several military projects in Hawaii that are registered for LEED certification with the United States Green Building Council. While green projects may lead to cost savings for the military, they are not free of risk. Special consideration must be given to issues akin to the military.

One issue is security. Daylighting systems, including windows and skylights could put confidential information at risk and compromise security. In addition, the military may not be able to accommodate the necessary upkeep and preventative measures needed to use the new green technologies.

These are just more examples of potential issues that could arise in green building projects. All parties involved in green building projects must be aware of the potential risks and plan accordingly.

Hawaii Preparatory Academy has opened the “Energy Lab.” The Energy Lab could be the first K-12 school facility in the world to meet the Living Building Challenge, a criteria that exceeds LEED Platinum certification, which the school also is pursuing.

Like LEED certification, the Living Building Challenge is also a voluntary third-party program of sustainable building certification. Its creators see it as the next step beyond LEED.

The Living Building Challenge addresses six performance areas: site, energy, materials, water, indoor quality, and beauty and inspiration, with a goal of achieving a “net zero” impact on the energy grid, water systems and natural environment. In order to qualify to be certified under the Living Building Challenge, a building must be a zero-net energy and water user, and introduce no new toxins from an established “red list” into the environment. Additionally, it could not be built on undeveloped land. In all there are 16 requirements for such a building and the list includes a category for “beauty and spirit” that includes “education and sharing.” The Living Building Challenge is performance based, which means a project has to perform as modeled for one full year prior to receiving certification.

Some of the sustainability features of the Energy Lab are wind turbines and roof-mounted photovoltaic panels will strive producing 100 percent on-site renewable energy. In addition, all wood is Forest Stewardship Council (FSC) Certified or from salvaged sources. Every occupied space has operable windows and the building is almost entirely naturally ventilated. A radiant cooling system uses colder nighttime air to chill water. Sensors will monitor the building’s energy use and generation and control artificial lighting and natural air flow.

On Monday, I was a guest on Hawaii Public Radio’s “Energy Futures.” Here is a link to the show: http://hawaiipublicradio.org/audio/EF_040510.mp3.

The show focused on LEED standards, legal issues related to green building and the future of green building in Hawaii.

According to the United States Green Building Council (USGBC), some of the benefits of green buildings are improved productivity and satisfaction, enhanced comfort and health and increased quality of life. According to a new study entitled “Impact of Green Building Design and Construction on Worker Safety and Health,” however, improved health and safety may not be flowing to construction workers involved with sustainable buildings.

The study compiled survey responses from seven construction firms which provided data on 86 building projects constructed or in progress
in the period from 2000 to 2006. The study concluded that there appears to be little or no difference between green and nongreen projects in terms of construction worker safety and health. The study further notes:

Because no difference in safety performance is experienced, LEED projects are perhaps sustainable environmentally
but not sustainable in terms of worker safety and health. The writers believe that, similar to end-user safety and health, construction workers safety and health must be considered if a project is to be labeled as sustainable.

Previous posts discussed liability issues surrounding unsafe working conditions and the methods that some sustainable building projects are implementing to improve worker safety and health.

Currently LEED and Green Globes credits are not awarded for the implementation of health and safety programs for construction workers. Nevertheless, safety training is an integral part of developing a skilled green collar workforce and it will be interesting whether green building certification programs begin awarding credits based on increased worker health and safety.

I previously wrote about complaints filed by Minnesota roofers being paid as landscapers working on green roofs.

The landscaper vs. roofer debate also was raised in Chicago. Unionized roofers in Chicago raised the issue of whether work on green roofs should be done by roofers or landscapers. The Chicgo roofers claimed that they should be entitled to some of the work that was being done by landscapers on two Chicago public schools.

The National Labor Relations Board (”NLRB”) ruled against the roofers. Because “all the green roof work, including the disputed work, occurs above the roof membrane” and involves no altering of the roof surface itself, the NLRB ruled that a roofing license was not necessary. The NLRB determined that landscapers could install green roofs more efficiently and economically than roofers.

In response to the NLRB’s ruling, the Chicagoland Roofing Council identified interesting liability issues:

“If a leak in the roof develops after the landscaping is installed and it’s not installed by a roofer, who does the owner turn to?” “It’s one of many complicated issues involving green roofs.”

No matter which trade is installing vegetation, it is important to have clear contracts that address who will be responsible for defects.

Rhode Island recently passed “The Green Buildings Act” (2009-S 0232B), requiring that all new major public facility projects and major building renovations in Rhode Island, including schools, be designed and constructed in conformance with high performance green building standards.

The new law applies to new construction of more than 5,000 square feet and renovation of spaces greater than 10,000 square feet if such projects receive any funding from the state. The law takes effect immediately but will apply only to buildings entering the design phase after Jan. 1, 2010.

Under the law, building design must conform to the United States Green Building Council Leadership in Energy and Environmental Design (LEED) rating system or an equivalent high-performance green building standard, including the Northeast Collaborative for High-Performance Schools Protocol.

Rhode Island’s green legislation is similar to the green building requirements established by the Hawaii legislature. However, the Rhode Island law only requires construction to meet LEED “certified” level, as opposed to an increased lever of LEED silver, gold or platinum. Under Hawaii law, each state agency must, among other things:

Design and construct buildings meeting the Leadership in Energy and Environmental Design silver or two green globes rating system or another comparable state‑approved, nationally recognized, and consensus‑based guideline, standard, or system, except when the guideline, standard, or system interferes or conflicts with the use of the building or facility as an emergency shelter.

Rhode Island lawmakers also addressed the liability issue. The law states:

37-24-6. Protection from liability. – No person, corporation or entity shall be held liable for the failure of a major facility project to meet the LEED certified standard or other standards established for the project as long as a good faith attempt was made to achieve the standard set for the project.

In other words, contractors, design professionals and any stakeholders involved in building green government buildings in Rhode Island will not face liability for the failure to the building to obtain LEED certification as long as a “good faith attempt” was made (notably the term “good faith attempt” was left undefined).

I’ve repeatedly written that green buildings are ripe for litigation. The Rhode Island statute attempts to address such liability up front, before construction. Hawaii’s green building statute does not address liability. Likewise, stakeholders involved in private, non-governmental projects even in Rhode Island do not fall under the protection from liability provision in the Rhode Island statute.

The risks are real and each party involved with a green building project must consider the risks and benefits in submitting bids and negotiating contracts. Stakeholders should consult with counsel with knowledge of green building certification.

One of the 240 LEED for Neighborhood Development (LEED ND) pilot project recently opened at the Fort Shafter Army base on Oahu. If all goes as planned, the Simpson Wisser neighborhood will receive LEED-ND certification in spring of 2010. Read Press Release.

The United States Green Building Council (USGBC) says its proposed LEED ND rating system:

“encourages smart growth and new urbanist best practices, promoting the location and design of neighborhoods that reduce vehicle miles traveled and communities where jobs and services are accessible by foot or public transit. It promotes more efficient energy and water use—especially important in urban areas where infrastructure is often overtaxed.”

The USGBC touts LEED ND in a White Paper entitled “Guidance to Local and State Governments” as a tool policy makers can use to evaluate current policies and practices, to implement “structural incentives” such as density and height bonuses, expedited and fast‐track permitting, and conditioning of the sale of publicly‐owned land, and to implement “financial incentives” (grants, tax credits, reduced permitting or impact fees, etc.) that would leverage market forces to encourage sustainable development.

The White Paper wisely discourages straightfoward mandating of LEED ND as not all locations will be able to meet prerequisites of the rating system.

The utility of the LEED ND rating system to policy makers remains to be seen. A municipality requiring LEED ND credentials for new neighborhood developments would likely chill development investment and face legal challenges.

Within LEED ND neighborhoods, what incentives or requirements, if any, would be in place to encourage energy efficient living at the individual household level?

Could green lifestyles be mandated at the neighborhood level through bylaws and restrictive covenants?