Hawaii Green Building Law

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?

The United States Green Building Council (”USGBC”) recently accounced its publication of the “Green Office Guide: Integrating LEED Into Your Leasing Process.” At first glance, the guide appears to be targeted towards addressing the tenant’s perspective. According to the USGBC:

This new publication is designed to help office tenants and their service providers (lawyers, brokers, consultants, design professionals) integrate LEED early into the leasing process. It is written to provide critical background content as well as functional tools (including lease language and site selection checklists) that can be used throughout the transaction.

The Chapters of the USGBC Green Leasing Guide are as follows:
SECTION 1 – Why Green the Leasing Process?
1.1 How Buildings Affect the Environment and Tenants
1.2 Primer on LEED®

SECTION 2 – Greening the Leasing Process
2.1 Environmental Strategies for the Leasing Process
2.2 Implementing Environmental Strategies at Renewal and in New Space Searches
2.3 Greening the Lease
2.4 Best Practices for LEED for Commercial Interiors Project Management, Design and Construction
2.5 Implementing Environmental Strategies Under Existing Leases

SECTION 3 – Tools for Greening the Leasing Process
3.1 LEED for Commercial Interiors Scorecard
3.2 Basic Environmental Impact Questionnaire
3.3 Sample Criteria for Qualifying Project Team Professionals
3.4 Sample Green Building RFP Questions
3.5 Building Questionnaire for Tenants Seeking LEED for Commercial Interiors Certification
3.6 Sample Lease Provisions
3.7 Sample Environmentally Preferable Purchasing Policy for Tenant Operations

Several other organizations have published information regarding negotating and drafting a green lease including BOMA’s Green Leasing Guide and the California Sustainability Alliance’s Green Leasing Toolkit. While these are all helpful resources, green building and green leasing involve unique issues. The parties to the lease must be aware of the sustainability issues related to the property and should tread lightly as careful drafting is required to address green building issues. Prior to entering such a lease, both landlords and tenants should seek counsel from an attorney experienced in green building issues.