Greenwashing New Jersey

Mandatory "High Performance Green Building" is coming to New Jersey. In Bill S843, which is expected to soon be signed into law, New Jersey Lawmakers declare their commitment to energy efficient and environmentally friendly State government buildings. Ironically, Bill S843 is being denounced by Green Building supporters, including the United States Green Building Counsel of New Jersey ("USGBC-NJ"), who believe that this Bill threatens to greenwash the Garden State.

S843 provides that "any new building having at least 15,000 square feet in total floor area that is to be constructed for the sole use of a State governmental entity ... shall be designed and managed to meet standards for a high performance Green Building." Sustainable design advocates maintain that, despite its Green appearance, the Bill is defective because it contains too broad a definition of Green Building.

According to a recent report issued by the United States Green Building Council Research Committee, buildings substantially contribute to the environmental problems and the economic stability in the U.S. Buildings account for 38% of U.S. carbon dioxide emissions, 71% of electricity use, and 48% of the country's total energy. In addition, waste from demolition, construction and remodeling makes up more than 35% of all nonindustrial waste.

Many municipalities and States are attempting to address these alarming statistics by enacting legislation intended to reduce electricity consumption, air pollution and water use. New Jersey elected officials have also finally recognized the severity of the environmental impact of buildings and construction and believe that passing legislation like Bill S843 is the answer. The State legislature has determined that this Bill would significantly reduce or eliminate the negative impact buildings have on the environment and its occupants.

A fiscal analysis of the economic impact of Bill S843 issued by the Office of Legislature Services on May 24, 2007 estimates that any additional costs incurred as a result of complying with Green Building standards would be offset by the anticipated cost savings realized from the energy efficiencies derived from the Green Building standards. Lawmakers concluded that the benefits of Green Building would include reduced consumption of natural resources, cost-saving economics, enhanced occupancy comfort, health, and improved quality of life while benefitting the community by minimizing the strain on local infrastructures.

Although agreeing that legislation is needed, critics argue that Bill S843 could actually result in more harm than good. The problem is with the definition of Green Building. S843 defines "High Performance Green Building" as a building that is designed and constructed in a manner that achieves at least: a Silver Leadership in Energy and Environmental Design rating ("LEED"); a two Green Globe rating; or a comparable numeric rating.

In an open letter to N.J. State Legislators and Officials, the USGBC-NJ expressed grave concerns about this definition. The USGBC-NJ urged the legislature to adopt a prior version of the Bill that permitted only the LEED rating system as the Green Building standard. The USGBC-NJ warned that by including other rating systems in determining what is Green, the "initiative is destined to fail."

LEED is the nationally accepted benchmark for high performance Green Buildings. It is an established rating system that was created in 1998 with more than 5,000 projects registered throughout the country. LEED promotes a whole-building approach to sustainability by recognizing performance in five key areas of human and environmental health; sustainable site development, water savings, energy efficiency, material selection, and indoor environmental quality. According to the USGBC-NJ, to allow other rating systems as equivalents would be wrong and jeopardize the results of the program.

Indeed, the position of the USGBC-NJ regarding the LEED standards for sustainability is the prevailing wisdom in the United States today. In a U.S. General Services Administration ("GSA") study conducted by the Pacific Northwest National Laboratory ("PNNL"), the LEED rating system was found to be "the most appropriate and credible sustainable building rating system available." PNNL's conclusions were based on a comparison and evaluation of five (5) rating systems. The study recommended that LEED should be used to evaluate GSA projects because LEED tracks the quantifiable aspects of sustainable design building performance; is verified by trained professionals; has a well-defined system for incorporating updates; and is the most widely used rating system in the U.S. marketplace. As such, LEED has been adopted by the GSA and the Department of Defense.

In addition to the Federal Government, LEED is the standard by which many other State and municipal Green Building initiatives are measured. For example, the cities of Boston, Washington and New York mandate that all new municipal building work or work on existing municipal buildings must follow LEED. New Jersey municipalities have also incorporated Green Building principles and LEED in their redevelopment plans. The Boroughs of Highland Park and Belmar have launched broad-based sustainable building plans for their communities and the Township of Cranford has adopted a Green Building ordinance requiring LEED certification.

Arguably, Bill S843 is a political compromise designed to placate the concerned citizens that support a Green agenda. A more cynical view is that, the law is intentionally crafted to preserve and protect the status quo, while feigning concern for the environment. In any event, S843 appears to be a bad law that could be devastating to Green Building in New Jersey by lulling the public into a false sense of environmental security in State construction. Moreover, equating less stringent and ambiguous criteria with the exacting conditions of LEED would further legitimize pretentious substitutes. Clearly, this would have a negative impact on private construction throughout the State where building Green is still voluntary. Developers interested in building Green could then view other standards as viable alternatives to LEED thereby diluting the goal of sustainability. Furthermore, developers that wish to be unscrupulous and avoid the objective standards of LEED could hide behind the nebulous requirements of other rating systems to technically comply with "Green standards" and hold themselves out as friends of the environment. Finally, the over expansive definition of Green Building in Bill S843 sets a bad precedent for future laws that may seek to mandate Green Building.

In the words of Theodore Roosevelt:

"It is difficult to make our material condition better by the best law, but it is easy enough to ruin it by bad laws."

BY: Harry E. McLellan