In this blog series, Colin W. Maguire, JD, SP, recounts his drafting of the legal article The Imposing Specter of Municipal Liability for the Exclusive Promotion of Green Building Certification Systems, 1 University of Baltimore Journal of Land & Development 157 (2012).
Is this whole analysis an overreaction? Many people do not think so, and you might not think so if you start to see the green building certification industry for what it is – a marketplace. Nobody doubts that LEED created the market, but LEED now faces competition. Imagine if I was writing on behalf of Behr brand paint. Further imagine that numerous municipalities passed ordinances which required or promoted Glidden brand paint’s use on buildings. I think almost everyone would find such an ordinance ridiculous and illegal. Even if the reason for the ordinance was that Glidden had an environmentally friendly line of paint, Behr could make the same or similar product…and maybe at a fraction of the cost.
The ordinance would clearly be designed to better Glidden’s bottom-line. Yet, LEED is the standard bearer. Though USGBC is a non-profit itself, that means very little in an analysis of marketplace competition because 1) when you mix the terms “Washington, D.C.-based” and “non-profit” there is usually a ton of money involved, and 2) the LEED APs who promote the certification are all in it to make a living, many of them generating profit as a direct result of their LEED AP status through fees on LEED projects.
Perhaps municipalities have taken notice. When I first began researching this issue, there were LEED-based programs in 27 states. I looked into two such programs – one in my hometown of East Lansing, Michigan (also where SERF is located) and one in Charlotte suburb of Matthews, North Carolina. The Matthews ordinance was especially perplexing because North Carolina had a non-exclusive green building certification statute. Sometime between when my article came out and now, those LEED-specific ordinances are gone, just vanished. Is there any proof that my article had anything to with this? No, there is no proof other than a few words and a copy of the article that may have been floated to people associated with the City of East Lansing.
But I did have a conversation with a representative from East Lansing’s neighbor Meridian Township. Meridian Township has since published Sec. 86-440. – Mixed use planned unit development (MUPUD) & Sec. 86-444. – Commercial planned unit development (C-PUD). These ordinances define the following as conservation amenities:
Activities or technologies listed for Leadership in Energy and Environmental Design (LEED) certification by the U.S. Green Building Council or certification criteria of organizations with similar goals; for example, American Society of Landscape Architects’ (ASLA) Sustainable Sites Initiative (SITES) or Society of Environmentally Responsible Facilities (SERF).
If a municipality is going to have an ordinance which utilizes private green building certification systems, then you do it in a non-exclusive manner. I am pleased that SERF is on Meridian Township’s list, but that is not the critical point. The critical point is that businesses and citizens are protected from state-sponsored monopolistic activity. As I stated earlier, LEED started the market and probably deserve top-billing. What pleases me the most about this outcome is that thoughtfulness and reasoned scholarship appears to have made an impact in the real-world.
I cannot say that I started some kind of trend with my article, but I hope there is a trend nonetheless. I sincerely hope that municipalities are starting to see that LEED is not law. Rather, LEED is a lot like SERF, Green Globes, or any other green building certification: a group of business people with good intentions trying to run an effective, green building certification brand. I can recall engaging with a LEED AP on a Linkedin group message board some years ago. He claimed that he was there from the start with USGBC and LEED. He remarked that USGBC never wanted LEED to become law, but the proliferation of LEED APs took it in that direction. To that end, perhaps the eradication of LEED-exclusive laws is what is best for the soul of USGBC. SERF merely wants the ability to compete. The law does not tolerate such evasions of its power and neither does common-sense.
Part 6 of a 6-part blog series