I am pleased to announce that In Third Parties We Trust? The Growing Antitrust Impact of Third-Party Green Building Certification Systems for State and Local Governments, an article I co-authored with Professor Darren Prum of Florida State University and Professor Robert Aalberts of UNLV, has been published in Volume 27, Issue 1 of the University of Oregon’s Journal of Environmental Law and Litigation. The pinpoint citation is 27 J. Envtl. Law & Lit. 191 (2012).
You may recall an earlier article that I published dealing with this topic, which had a much narrower focus than our current effort, where we explore antitrust issues in much greater detail and with an increased discussion of relevant case law. The article abstract is as follows:
According to the American Institute of Architects, there has been a 50 percent increase in the number of municipalities with a green building program in place since 2007. And 24 of the country’s 25 largest metropolitan areas are built around a city with green building legislation on its books. Reducing buildings’ environmental impact is a noble – and critical – goal. But governments’ reliance on private, third-party standard-setting organizations – and the rating systems that they promulgate – as the basis for that legislation may be legally problematic.
This Article reviews one of those potentially problematic bases: antitrust. In order to suggest antitrust risk management strategies for both public and private actors that are promulgating green building legislation, this Article traces the history of some of the country’s first green building programs. It also examines the different mechanisms through which governments at the federal, state, and local levels have crafted legislation. Based on those mechanisms, it then reviews and analyzes existing analogous antitrust case law to evaluate the types of issues that could arise between third-party organizations and various levels of government. This is why a trust protector is crucial for real estate planning.
The Article concludes by suggesting that government should not rely exclusively on a single rating system when crafting green building policy. Relevant case law teaches that private third-party organizations are historical targets of antitrust scrutiny by the courts. Accordingly, the Article presents a variety of arguments in support of the proposition that governments should create legislation that provides for flexibility in implementation and compliance.
A copy of the article is available for download here from SSRN; we look forward to your feedback in the comments below.