Since 1998, private owners have been incorporating sustainable design and construction practices in their buildings by utilizing the LEED Rating System established by the United States Green Building Council (“USGBC”). Starting in 2003, federal agencies began requiring that new construction achieve a certain level of LEED certification. Since then, 22 states have mandated that public buildings achieve certain levels of LEED certification under the LEED Rating System.

In short, the trend towards sustainability continues. In fact, state and federal agencies are looking at green building codes as a means of requiring sustainable design and construction practices for all types of construction (both public and private). This is a solid indication that green building is here to stay. An overview of some of the current and future green building codes is set forth below.

ASHRAE 189.1 Takes the Lead

One of the green building codes being considered by state and federal agencies is the American Society of Heating, Refrigerating and Air Conditioning Engineers (“ASHRAE”) standard known as ASHRAE 189.1, which became available for public adoption in 2010. ASHRAE 189.1 is similar to LEED in that it includes standards for site sustainability, water use efficiency, energy efficiency, indoor environmental quality, the building’s impact on the atmosphere, materials and resources, and construction and plans for operation.

This code was designed to apply to all new construction and renovations except for low-rise residential construction. ASHRAE intended that the 189.1 standard would compliment the LEED Rating System by serving as the baseline for whether the building was sustainable. In theory, a building that meets the ASHRAE 189.1 standard should also be able to achieve a LEED Silver Certification.

IGCC Follows Suit

Similar to ASHRAE 189.1, the International Code Council developed an International Green Construction Code (“IGCC”) that is also compatible with and similar to the LEED Rating System. The IGCC was released for public adoption in March 2012, and includes an optional compliance path of following ASHRAE 189.1. Like ASHRAE 189.1, the IGCC was designed to apply to all new construction and renovations except for low-rise residential construction.

Prior to its official release, Rhode Island and Florida adopted the IGCC for public construction and Maryland adopted the IGCC as an optional requirement for all new construction. Other states are considering whether to adopt all or portions of either ASHRAE 189.1 and/or the 2012 IGCC.

Other Green Codes?

On January 1, 2011, California created its own green building code ("CALGreen") that mandates sustainable design and construction for both public and private projects. CALGreen was the first mandatory state-wide building code to be adopted, and applies to residential, commercial, hospital and school construction. This code focuses on planning and design, energy efficiency, water efficiency and conservation, material conservation and resource efficiency, and environmental quality.

At the end of March 2012, the Department of Defense announced that it is going to create a green building code based on ASHRAE 189.1, which will govern all new construction, major renovations, and leased space acquisition. While DOD plans on using this new green building code, it does not plan on abandoning the requirement that its buildings achieve at least a certification of LEED Silver.

Moving Forward

In summary, green building is advancing from a trend to an every day construction practice. This is especially true as states and federal agencies continue to consider mandating sustainable design and construction practices through green building codes.

If your state, county or local municipality is currently looking at adopting a green building code, here are some key questions that the agency should ask before moving forward:

• Will the adoption of certain sections of the code (i.e .the regional materials requirement) violate the Dormant Commerce Clause in the US Constitution? The Dormant Commerce Clause implicitly restrains the ability of the states to discriminate against or impose substantial burdens upon interstate or foreign commerce. Simply stated, a state, county, or municipality cannot restrict the movement of goods or materials into or out of the state. Thus any agency evaluating the adoption of a green building code should consider whether requirements, like a regional material requirement, restricts the movement of construction materials into or out of the state.
• Will the adoption of certain sections of the code (i.e. some of the site selection requirements) prevent the development of privately owned property, thereby decreasing or eliminating the value of private property? If the adoption of those sections does decrease or eliminate the value of private property, are there any consequences of that action?
• Will the adoption of the code make it easier for a building to achieve LEED certification, or will there be duplicative requirements or barriers for owners who also want to seek LEED Certification?
• What criteria was used to develop various green building code provisions? For example, what research was conducted to ensure that the energy regulations will produce the desired results of reducing energy consumption? Also, what research was conducted to determine whether certain types of construction materials are truly sustainable (i.e. was a life cycle analysis of the material performed)?

Adoption of green building codes is a positive step towards a more sustainable future in terms of both economic benefits (energy savings) and environmental benefits (healthier indoor and outdoor environments). However, such codes should be fully vetted prior to their adoption.