Some States Think Ahead: LEED is Not the Only Fish in the Sea

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).

By now, you may have asked yourself “but don’t some states have a green building statute?” Illinois passed the Green Building Act in July of 2009. The statute is non-exclusive. If you want state funding for your building in Illinois, then you must have a certification from “LEED, Green Globes, or [an] equivalent certification.” Again, the state government explicitly mandates that multiple green building certifications be considered. Also, the statute requires the state to reassess the green building industry every five years and add names to the list as needed. North Carolina has a very similar statute.

The structure of existing green building laws caused me to think that state legislatures had quietly considered the very issue I chose to publicize in my article. But if states were only concerned about lawsuits based upon existing state law, then the state legislatures could simply change the green building statute to exclusively promote one or two private green building certifications because state can always create its own permissible government function or state action. State and Federal anti-trust law is somewhat cyclical. For instance, most state laws point to federal law to interpret anti-trust law. Then, federal lawmakers point to the “State Action Doctrine” and try to assess whether the state is properly engaging in monopolistic activity.

So why wouldn’t Illinois and North Carolina write their own rules and make LEED and/or Green Globes a requirement, or allow municipalities to do the same? Take SERF for example and suppose that Illinois made a state law that allows Chicago to require all buildings to obtain LEED Silver certification. SERF loses a deal in Chicago. The best that SERF could do is run to Illinois State Court, sue Chicago under Illinois’ anti-trust statute, and lose really badly because the State of Illinois specifically approved Chicago’s activity in statute…right?

Not necessarily. This is where the Constitutional issues become involved and a municipality could easily find themselves in federal court. If X sues Y in federal court under a federal claim (like a violation of the U.S. Constitution), then X can bring related state claims under the same federal lawsuit. Therefore, you could envision a situation where a company or individual could sue a municipality in federal court for a violation of a state claim and a federal claim.

Part 3 of a 6-part blog series to be continued.