Last week in Toronto, I had the opportunity to present at the second annual Greenbuild Legal Forum. As my colleague Chris Cheatham points out in his overview of the event at Green Building Law Update, the fact that the green building community is embracing attorneys and the value they can provide to the industry is itself noteworthy. In fact, USGBC General Counsel Susan Dorn indicated at the Forum that her office will sponsor a series of legal webinars next year to address various green building legal topics. We’ll follow up here at GRELJ once those details are announced.
But back to the Forum: all of the presentations were excellent and, in my opinion, demonstrate how far green building law has progressed since 2008, when I lamented the lack of discussion about risk and liability at the Boston Greenbuild. If you’re looking for a blow-by-blow recap, attorney Dan Sheridan of the Sheridan Law Firm has written an excellent summary at his Legally Green blog, which I encourage you to review.
My topic in Toronto was the applicability of the proposed 2010 version of the FTC Green Guides to the marketing of green real estate. Although public comments on the proposed revisions to the Guides closed last October, FTC confirmed to me that it has yet to establish a date for their final release. And, according to one Forum attendee with close ties to FTC, the organization is still culling through a large volume of comments, many of which voiced strong opinions about the proposed revisions. I’ve embedded my slides below for your review:
My presentation’s primary goals were (1) to explain what the Green Guides are; (2) how the Green Guides are enforced; and (3) how they apply to real estate. To accomplish this third point, I presented photographs of how owners and operators have marketed green features and third-party certification of real estate in New York City (in increasing order of acceptability based on the revised Guides).
In preparing for my remarks, one of the most interesting documents I came across was a set of recommendations from USGBC to FTC. USGBC submitted the document after a public workshop in July of 2008 that specifically discussed the Guides’ applicability to green buildings. You can access the document here (scroll down, it’s number 26 in the list).
Although those recommendations were not incorporated into the version of the Guides that is currently pending (though they could be somewhere down the line), USGBC was – and, in my opinion, remains – concerned about how the LEED label is being applied to buildings in pursuit of certification. Indeed, one of the major takeaways I emphasized during my remarks in Toronto was that more guidance from FTC on this topic is inevitable: as you’ll see in my slides, the organization has stressed that it will not hesitate to enforce environmental marketing that is directed at non-consumers.