In an article written earlier this week, Dan Walters, a columnist at the Sacramento Bee, articulated his concerns over a LEED-driven green public building regulatory scheme by calling such legislation “part of a broader legislative tendency to avoid tough policy decisions by shifting them to unaccountable outside organizations.” Walters was writing with respect to California’s Senate Bill 86, which would require public projects to comply with LEED beginning on January 1, 2009. Although Walters acknowledged that USGBC is “a legitimate organization that acts as a forum for agreements on environmentally friendly building standards,” he also noted that means by which it has- and continues to develop- the LEED standards are promulgated by its own membership base and internal policies.
Walters calls Bill 86 a “two-pronged assault on democratic process that not only bypasses the usual procedure for making new law, but also transfers the regulations authorized by the new law to a private organization that’s completely unaccountable to the public.” As I have similarly observed here at gbNYC previously, Walters also pointed out that should Bill 86 pass, Californians will be “on the hook for whatever standards USGBC developed by whatever process it uses.” (This point is obviously well-taken, but it should be pointed out that USGBC does solicit input from its members and member organizations during the public comment periods prior to introducing new rating systems. Of course, the rejoinder here is that the commenting and pilot periods take too long to finally implement and either discourage potential applicants or encourage standards-adopting organizations to create their own standards rather than waiting on USGBC.) Walters’ piece did not address the LEED creep scenario (LEED mandates applying to private projects) but his concerns certainly resonate in that context as well.
What’s most interesting is that Walters identified two previous examples- both in California- where a legislator tried to backdoor a specific provision that he or she wanted into law by incorporating third-party requirements by reference into proposed legislation. For example, earlier this year, a bill was proposed that would have required young California girls to be immunized from cervical cancer with a particular vaccine. Controversy ensued, and the legislator removed reference to the vaccine from the bill. However, he changed its language to require whatever a certain federal immunization practices committee recommended with respect to immunization. Critics were not impressed, and the bill was ultimately modified to give authority for immunization rules to California’s state public health officer which, as Walters stated, “is where it should be.” The article concludes by recommending that “if the Legislature wants to impose green building rules on state agencies, it should do it, or at least give that authority to some other publicly accountable agency.”
For smaller municipalities (like Babylon, Long Island, as opposed to a state government or cities like Boston and Washington, D.C.), creating a publicly accountable committee or agency to evaluate whether a project has complied with a local green building standard is not so feasible. Still, it’s encouraging that the issues presented by green building regulatory schemes for both legislators and legal practitioners are garnering increased attention, and as additional rating systems continue to promulgate, state and local governments must take care to debate all of the implications that their potential green legislation may present.