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).
So that is how a company could go after a municipality, but what about an individual or a company? You may also have heard of the Equal Protection Clause. This clause it gives citizens equal protection of the law. The Equal Protection Clause is generally used to protect individuals from discrimination. If a law is not obviously discriminatory, then the person challenging a law under the Equal Protection Clause has to prove that there is no rational basis for the law.
Suppose that a municipality passed the same ordinance previously referenced – you need to buy a LEED certification to receive Brownfield assistance. Assume that a basic LEED certification, including the additional costs of hiring a LEED AP and complying with the certification, is $100,000. So, who is going to pay $100,000 for a green building certification? Only property owners who can afford it will get government support. Assume for a moment that local property owners are only willing to apportion 5% of project costs to specific green building costs. That would mean that only projects costing $2 million or more.
If you are operating in many real estate markets, then that would preclude a significant amount of building projects from receiving a government benefit and discriminate against lower-cost project and low-income property owners. But is there really no rational basis for promoting this LEED certification as part of an ordinance? The purpose of LEED is to support sustainability in building design and development. Therefore, the goal of a municipality must be to promote green building and sustainable development to the greatest extent in its community. Because no municipal official could remotely fathom that the goal of promoting LEED through law is to line the pockets of local LEED APs.
LEED is a premium product. As the hypothetical illustrates, there are property owners and developers who simply cannot afford it. Therefore, the best ways for a municipality to promote the highest level of green building certification are 1) creating a municipal-specific standard for green buildings, or 2) offering a variety of competitively priced green building certifications on a non-exclusive list. If a municipality is not doing this, then the municipality is not rationally promoting green building and sustainable development. Therefore, the municipality is discriminating against a large number of property owners and developers for no rational reason. There is reason to think municipalities have caught on.
Part 5 of a 6-part blog series to be continued.