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May 3, 2010 4:00 PM  PST  

CALGreen and Its Impact on Third Party Certification Programs 

by Aleka Skouras Eisentraut, Attorney
Wendel, Rosen, Black & Dean LLP
On Jan.12, 2010, the California Building Standards Commission unanimously adopted the first-in-the-nation green-building code.  CALGreen, as it is known, applies to all building permits pulled on or after Jan. 1, 2011. As a condition to issuance of a building permit, CALGreen requires residential and commercial developers to implement a wide range of sustainability measures in planning and design, energy efficiency, water efficiency and conservation, materials conservation, resource efficiency, and environmental air quality. 
The stated purpose of CALGreen is to “improve public health, safety and general welfare by enhancing the design and construction of buildings.” According to the governor’s news release, CALGreen will help California meet its goals of “curbing global warming and achieving 33 percent renewable energy by 2020,” the standard mandated by AB 32, the California Global Warming Solutions Act of 2006.  
But CALGreen also creates a set of sticky and uncomfortable tensions. It leaves largely undefined how it is to be implemented by local governments, and it does not answer the question of how it will affect existing third-party verification systems, specifically the U.S. Green Building Council’s LEED certification program and Build It Green’s GreenPoint Rated program. Even as the legislation was being debated, observers pondered if it would supplant or fatally weaken the popular and arguably superior third party programs.  
The first part of CALGreen addresses “mandatory” measures; the second part addresses “voluntary” measures.  All new construction in California must comply with the mandatory measures.  Upon receipt of a certificate of occupancy, a building owner will be able to “label” his or her building as CALGreen compliant, without, in the words of the state “using additional costly third-party certification programs.”  Those buildings that comply with the voluntary measures will be qualified as CALGreen “Tier 1” or “Tier 2,” depending on the extent of their compliance.  The Building Standards Commission intends to revisit and update CALGreen every three years and now-voluntary measures may become mandatory.  

Some of the specific CALGreen mandatory measures include a 20 percent reduction in indoor water use, a 50 percent reduction in the amount of construction waste sent to landfills, the installation of separate water meters for non-residential indoor and outdoor water use, the use of low-emitting construction and finishing materials, a one-time commissioning of non-residential buildings over 10,000 square feet, and compliance with energy efficiency standards promulgated by the California Energy Commission.  All of which will increase costs to pull a building permit, and will result in each new construction project in the state being well on its way to achieving LEED and/or GreenPoint Rated certification should it so desire.

Compliance with CALGreen will be determined by way of field inspections by local and state building departments. Official news releases from the state maintain that the transition to CALGreen will be seamless on the inspection front because of the existing inspection infrastructure. However, the entire building documentation and inspection process has changed dramatically under CalGreen, and many of the inspections contemplated by CALGreen do not exist currently and will require education and training of the inspector community. If this training is not funded by the federal government (perhaps under the rubric of “green jobs”), then the expense of that training will fall on our local governments at a time when many are laying off staffers and in some cases doing all they can simply to remain solvent. 
Despite the state’s position that CALGreen is not intended to substitute for existing green building programs, state literature on CALGreen describes the purpose of the voluntary Tier 1 and Tier 2 provisions as encouraging “local communities to take further action to adapt their buildings to reduce greenhouse gas emissions, improve energy efficiency and conserve natural resources,” presumably by providing municipalities and counties with ready-made “greener” building ordinances that will supplant the incorporation of the LEED and GreenPoint Rated standards into local green building ordinances. CALGreen also includes appendices to be used by municipalities as templates for resolutions adopting either Tier 1 or Tier 2 requirements as mandatory.  

In this regard, the state is late to the game. While some municipalities and counties may choose to adopt the CALGreen tiered requirements as their green-building ordinances, many California cities and a handful of counties already have moved. According to the state attorney general’s office, 34 California cities, and three counties, including San Francisco, San Jose, Palo Alto, Hayward, Los Angeles, Marin County and San Mateo County, had adopted green-building ordinances as of September 2009.  Of those, 24 cities and two counties have requirements in their ordinances linking new construction and/or retrofits to standards outlined in LEED and GreenPoint Rated.  

Although CALGreen includes a section addressing some regulatory conflicts, it does not discuss conflicts between CALGreen and existing green building requirements.  It is unclear whether any green-building ordinance that is more stringent than CALGreen will be grandfathered in or if the affected city or county will need to “amend” the way in which CALGreen is implemented in its jurisdiction. CALGreen does provide an amendment process that requires each city and county wishing to adopt building codes that are more stringent than CALGreen to “make express findings for each amendment ... based upon climatic, topographical, or geological conditions.”  The findings must be submitted to the Building Standards Commission, except in the case of energy-related amendments which must be submitted to the California Energy Commission.  While it is currently standard for state agencies adopting more stringent plumbing, electrical and building codes to go through an approval process, it is uncertain how the Building Standards Commission will interpret the CALGreen language requiring findings based on local climatic, topographical or geological conditions.  

At this time, CALGreen does not address retrofits of existing buildings (which it will need to do in the future in order to comply with State Energy Program funding under the American Recovery and Reinvestment Act), nor does it require ongoing measures such as building benchmarking, continued commissioning, controls on human operation and maintenance of the building, vendor contracting requirements, and reporting of ongoing performance data as some third party certification programs do.  However, it will be necessary for the state and third party certification groups to work together to resolve these tensions, especially in light of Section 410 of the American Recovery and Reinvestment Act, which requires any state receiving State Energy Program funding to commit to:

  • Adopt residential and commercial energy efficient building codes for both new construction and renovations; and
  • Develop and implement a plan, including training and enforcement, to achieve 90% compliance with the new codes by 2017.  

Currently, all 50 states have submitted letters to the Department of Energy confirming their commitment to comply with the State Energy Program.

As noted by Build It Green previously, “there is still much work needed to refine and implement the code [CALGreen] including measure definition, education to affected parties and clear strategies to reconcile and understand how the code relates to the growing number of municipal green building ordinances based on established third-party verified green building programs.”
Wendel, Rosen, Black & Dean, LLP is a Build It Green Platinum Sponsor.   In July 2003, Wendel Rosen became the first law firm in the country to gain third-party certification as a "Green Business."  Read more about Wendel's green efforts.


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For additional information on this Green Building News article, please contact:

Aleka Skouras Eisentraut

Source: Wendel Rosen Black & Dean LLP

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