Hawaii Green Building Law

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 posted on the prospect that LEED projects, owned by the State of Hawaii could risk decertification due to budget cuts and improper maintenance.

We’re one step closer.

Hawaii public school teachers (in the face of State budget cuts) agreed to shut down the Hawaii public school system for 17 Fridays beginning in October. Furlough Fridays (as they are referred to in Hawaii) could have a drastic impact on the State’s LEED certified buildings.

Hawaii law requires all major state renovation or construction projects be designed and built to meet LEED silver or Green Globes standards. Several new state building projects have achieved LEED certification, including buildings on public school campuses and buildings that are part of the University of Hawaii system. The budget cuts and Furlough Fridays could prevent the State from providing adequate maintenance to these green buildings.

At this point, a project can be de-certified if it fails to provide ongoing monitoring data. The USGBC has not yet stated what will happen if a building’s energy and/or water usage is higher than projected, which could occur if a building is not properly maintained. Nevertheless, even if a project achieves LEED certification, funding issues could prohibit the state from keeping up with the USGBC’s minimum program requirements.

Congratulations to Hui o Ko’olaupoko for being one of five national finalists for the Intelligent Use of Water Leadership Award sponsored by Rain Bird irrigation products company, as reported by BussinessWire. Hui o Ko`olaupoko implements projects in O`ahu’s Windward side (Makapu`u to Kualoa) that address land-based pollution/watershed health that impact this part of the island.

The importance of water efficient landscaping, innovative wastewater technologies, and water use reduction in the building arena has been recognized by the U.S. Green Building Council and form the basis for credits under the LEED rating system. Green building projects seeking LEED certification under LEED v3 will be required to report water usage to the USGBC, which raises the point that designing and planning for Water efficiency is to be distinguished from operating and maintaining a water efficient building.

If the actual water usage of a building does not comport with the projected water usage under the building design, will a building be subject to LEED decertification? How does this shortfall in anticipated water efficiency savings impact the building owner who paid a premium for state of the art waste water systems and uber-efficient fixtures anticipating a savings that is not being realized?

Water use reduction for the sake of saving water is a laudable goal. Water use reduction for the sake of saving money or achieving LEED certification is something else, and if a project owner includes water savings as part of a cost analysis in the planning process and anticipated savings don’t materialize, somebody is going to be hit with added costs or the possibility of LEED decertification. Who will bear this risk? Risk allocation along with building performance expectations need to be spelled out in relevant project contracts and other legal documents.

Forest City Military Communities, the venture developing military housing in Kaneohe has been certified as having a LEED for Neighborhood Development Certified Plan. The certification marks the second phase toward gaining a green designation for the planned 388-home Wailuku neighborhood at the Kaneohe Marine Corp base.

The United States Green Building Council touts the LEED for Neighborhood Development Rating System as integrating “the principles of smart growth, urbanism and green building into the first national system for neighborhood design.” It “emphasizes the creation of compact, walkable, vibrant, mixed-use neighborhoods with good connections to nearby communities.”

A recent post on REJournals.com proposed that the LEED-ND system creates a due process problem asking “who are the regulators, planners, keepers and stewards of our communities? Is it the government or is it the private sector non-profit USGBC?” The article argues that:

A zoning decision is a government decision, whether it is legislative or administrative. An administrative zoning decision is typically appealable to a governmental appeals board, whose decision is appealable to a court of law under the applicable zoning laws and/or state or federal administrative procedures acts. In some instances a legislative zoning decision is appealable to the body politic by referendum vote or is subject to constitutional challenge.

The due process that is inherent in governmental decisions is noticeably absent from the LEED-ND process.

* * *

…unlike with government planning and zoning decisions, urban property owners will not have any ability to challenge any decision about LEED-ND certification with respect to neighboring or adjacent properties. Also unlike government planning and zoning decisions, which must be reasonable and supported by evidence, the USGBC is permitted by law to act unreasonably and arbitrarily if it so chooses.

The private decision-making capacity of the USGBC can be alarming. However, the developments are still subject to land use regulations established by governmental entities.

With respect to the internal decision making of planned communities, Shari Shapiro points out that planned communities are market driven and the USGBC’s principles will be incorporated by developers into covenants and restrictions.

Classic battles–McDonalds versus Burger King…Coke versus Pepsi…Yankees versus Red Sox. Should we add LEED versus Green Globes to the list?

LEED

The best known green building certification program is Leadership in Energy and Environmental Design (LEED). Developed by the U.S. Green Building Council in 2000, LEED (at least currently) is recognized as the market leader and has been incorporated as the standard in many local building codes and state statutes. There are four levels of certification–certified, silver, gold and platinum. A building must satisfy several prerequisites before it can earn points. Points are generated within the following six categories:

Sustainable sites
Water efficiency
Energy and atmosphere
Materials and resources
Indoor environmental quality
Innovation and Design

LEED certification is a paperwork-intensive process. Each point that is sought requires submissions, and while the process itself is conducted online for the most part, the accumulation of data and supporting material is extensive and often extends past final completion.

In comparison to other rating programs, LEED is expensive. It has been estimated that the LEED process costs between 1 and 9 percent of the overall project cost. In addition, current estimates to document, manage, and report project compliance through the USGBC certification process range from approximately $10,000 to $60,000 per project. These estimates will vary on a project-by-project basis and will depend on the complexity of the building type, the green measures targeted, the LEED Rating pursued (how many credits to document) and the level of green building experience of the stakeholders.

Green Globes

Green Globes was developed by the Green Building Initiative and positions itself as a more economical, practical and convenient alternative to LEED. In order to avoid antitrust issues, several local codes and state statutes, including Hawaii’s statute, incorporate the Green Globes rating system in addition to LEED. Green Globes uses a 1000-point system, although the applicant may confirm that certain points are inapplicable for the project. The Green Building Initiative issues one to four globes based on the percentage of applicable points achieved.

Unlike LEED, Green Globes does not have prerequisites. All actions implemented into the building count toward certification points. Points are accumulated in the following categories:

Site
Water
Energy
Resources
Indoor environment
Emissions, effluents and other impacts
Project management

One of the criticisms of Green Globes is its lack of prerequisites, allowing developers to ignore certain sustainability categories. In contrast, LEED takes a whole building approach to sustainability.

The Green Globes focus clearly is on energy use. While the number of points is relatively balanced among the six point categories in LEED, more than 35% of the points awarded under Green Globes fall under the energy category.

The total registration and verification cost for Green Globes, not including facility improvements, is typically between $5,000 and $7,000. In comparison, LEED registration and certification costs are approximately $13,000 for a 500,000-square-foot project. In contrast to LEED, Green Globes provides a Web-based self-assessment tool that can be completed by any team member with general knowledge of the building’s parameters. Green Globes, however requires an on-site inspection by a verified certifier; LEED does not.

The green building certification debate rages on. Certification can be a significant additional project expense; however, certification costs should not be viewed as the cost of “going green.” LEED is a more rigorous process but it currently is the market leader.

A lot has been written about the USGBC’s decision to de-certify projects that fail to meet the USGBC’s minimum program requirements. I predict that if the USGBC ever wields its de-certification powers, government projects will be among the first to face de-certification.

Several governmental entities have mandated that government buildings be LEED certified. Hawaii law requires all major state renovation or construction projects be designed and built to meet LEED silver or Green Globes standards. Several new state building projects have achieved LEED certification, including the Waipahu Intermediate School cafeteria and University of Hawaii’s John A. Burns School of Medicine.

While state projects are now required to be built green, budget concerns often leave government buildings without adequate funding to cover the construction of LEED buildings. Once built, the state often does not have adequate money or resources to cover necessary maintenance.

At this point, a project can be de-certified if it fails to provide ongoing monitoring data. The USGBC has not yet stated what will happen if a building’s energy and/or water usage is higher than projected, which could occur if a building is not properly maintained. Nevertheless, even if a project achieves LEED certification, funding issues could prohibit the state from keeping up with the USGBC’s minimum program requirements.

As previously discussed, potential de-certification could set off a wave of litigation between the developer and each stakeholder involved in the design, construction or occupancy of the project. Addressing risk and potential liability issues early on in the planning process is now a necessity.

The San Francisco 49ers unveiled plans to build a new stadium in Santa Clara, California. The proposal is for a $937 Million, 68,000-seat stadium that would incorporate a vegetated roof and solar panels. Reportedly, the stadium would be equipped with a lighting system designed to conserve energy. The 49ers’ intent is for the stadium to achieve LEED certification.

The Niners’ proposed stadium would not be the first LEED stadium. That distinction goes to Medlar Field at Lubrano Park, a $30 million, 5,400-seat baseball stadium on the Penn State campus. Highlights include water-efficient landscaping, a 76 percent construction waste recycling rate and power provided in part by a wind turbine system.

Stadiums are ideal for the implementation of sustainability concepts–they are massive projects, large energy users and often tied into public transportation routes. But stadiums are not immune to potential legal disputes. The Washington Nationals built the first major league ballpark to achieve LEED certification. After the Nationals moved into their stadium, they stopped paying rent alleging that the stadium was not “substantially complete.” The Nationals cited problems with the ballpark, including the high-definition LED lighting on the scoreboard. The Nationals subsequently settled their dispute.

Likewise, as discussed in a prior post, the home of the NBA’s Minnesota Timberwolves, the Target Center, is the subject of a labor dispute submitted by roofers to the National Labor Relations Board.

I think there are several reasons that make stadiums particularly prone to disputes. As with all green building projects, expectations are high. This is particularly true with stadiums which the public often expects to be fitted with state-of-the art technologies. Meanwhile, most stadium projects are at least in part taxpayer funded. Also, although the USGBC has considered a rating system specifically tailored to LEED stadiums, no such rating system exists to date.

High expectations + innovative but unproven technologies + budgetary and political issues + unestablished guidelines = potential problems.

According to the United States Green Building Council (”USGBC”), as of July 14, 2009 there are 146 projects registered for LEED certification. Registering a LEED project is the first step toward earning LEED certification.

Of the 146 registered projects in Hawaii, the following 14 Hawaii projects have attained LEED certification:

Case Middle School, Punahou School – Gold
AIA Honolulu Chapter Office – Gold
1779 Palolo Chinese Home – Certified
Group 70 International-Ground Floor – Silver
Imiloa Astronomy Center of Hawai’i - Certified
Hawaii Baptist Academy Middle School – Gold
Waipahu Intermediate Cafeteria – Certified
Dowling Company Office – Certified
Botanical Research Center – Gold
Hawaii Gateway Energy Center at NELHA – Platinum
Frear Hall, University of Hawaii at Manoa – Silver
40 South School Street – Silver
Castle and Cooke New Storage Facility – Certified
Hilton Waikoloa Dolphin Quest Village – Silver

According to the USGBC, LEED “is an internationally recognized green building certification system, providing third-party verification that a building or community was designed and built using strategies aimed at improving performance across all the metrics that matter most: energy savings, water efficiency, CO2 emissions reduction, improved indoor environmental quality, and stewardship of resources and sensitivity to their impacts.” As of April 2009, there were 19,524 LEED registered projects, and 2,476 LEED certified projects worldwide.

The Collaborative for High Performance Schools (”CHPS”) calls itself a “leading a national movement to improve student performance and the entire educational experience by building the best possible schools.”

Earlier this year, the Hawaii legislature passed HB 986, which would mandate:

Design and construct[ion of] all public school facilities, including renovation projects under five thousand square feet, to meet the Collaborative for High Performance Schools rating system, except when the guidelines conflict with the use of the facility as an emergency shelter;

HB 986 was among the measures highlighted in last month’s post on Hawaii Green Legislation for 2009. Last Friday, July 10, 2009, the measure was vetoed by Governor Lingle as part of a series of legislative vetoes reportedly made for budgetary reasons. It remains to be seen whether her veto will be overridden, which requires a 2/3 majority vote of both the House and Senate.

Looking at the text of the bill, it is not set forth how a school can “meet the CHPS rating system” as required by the law. Existing CHPS guidlines appear to be state specific, with assessment criteria available for California, Washington, Texas, New York, New Hampshire, Rhode Island, Connecticut, Maine, Vermont, Massachusetts and soon, Colorado (but not Hawaii). According to the CHPS website, independent review of CHPS projects applies only to projects in California, Colorado, Texas and Massachusetts, while a self-certification process has been outlined for projects in California, Texas, New York, Washington and the Northeast (again, Hawaii is not yet on the list).

If the bill becomes law over the governor’s veto, it remains to be seen how the provisions of the law would be implemented. Presumably CHPS criteria for Hawaii would need to be developed. Who would be responsible for developing such criteria? What incentives for compliance with CHPS criteria or penalties for non-compliance would be permissible for architects, designers, contractors and other project members? Should the bill become law, RFPs and design and construction contracts under the mandate would be ripe for misunderstanding and disappointment, and therefore must clearly set forth the expectations and requirements of all involved in such a project.