by Chris Cheatham, Associate, LEED AP

In 2005, Washington became the first state to pass green building legislation.  The pioneering legislation required that construction of buildings 5,000 square feet or larger be built to the U.S. Green Building Council (“USGBC”) Leadership in Energy and Environmental Design (“LEED”) Silver protocol.  Since 2005, additional cities and states have recognized the economic and environmental benefits from green buildings and have enacted similar green building legislation.  In 2008, members of the Virginia General Assembly unsuccessfully attempted to pass green building legislation and instead relied on a temporary budget amendment.

This article will detail the ongoing green building legislation debate in the Virginia General Assembly and at the Governor’s mansion.  At the heart of the debate is the choice of which green building rating system to adopt: the more environmentally beneficial but costly LEED standard or the more cost efficient but less stringent Green Globe system.  The outcome of this legislative debate will determine not only the extent of Virginia’s commitment to green building but also the added costs that will impact builders, contractors, project owners and other parties involved with green building construction.

Green Building Rating Systems

The aim of green building construction is to incorporate practices that decrease a building’s use of energy, water, and materials and that reduce a building’s impacts on health and the environment through better siting, design, construction, operation, and maintenance.

The most widely used system for measuring a building’s “greenness” is the LEED rating system established by the USGBC.  Under the LEED rating system, buildings are scored based on five major categories: (a) sustainable sites; (b) water efficiency; (c) energy and atmosphere; (d) materials and resources; and (e) indoor environmental quality.  The USGBC determines if a building has achieved LEED certification after an applicant submits documentation showing compliance with the requirements of the applicable rating system. Compliance with green building requirements results in the accumulation of points and the more points achieved results in higher certification levels: certified, silver, gold or platinum.

Other rating systems have more recently been introduced to compete with the LEED rating system.  For example, the Environmental Protection Agency’s Energy Star program offers an energy management strategy that has been used for more than 62,000 buildings across the country.  In 2004, the Green Building Initiative (“GBI”) introduced the Green Globes system to the United States as an adaptation of a Canadian green building rating system.  Green Globes has emerged as the main challenger to the LEED rating system and controversy surrounds the differences between the two rating systems.  Proponents of the LEED rating system argue that Green Globes does not contain a third-party verification requirement and that Green Globes does not include a mandatory energy consumption reduction requirement.  Green Globes supporters argue that the Green Globes rating system is more cost-effective and user-friendly due to the online interface that is written in “plain language.”  In 2008, the disagreements between LEED and Green Globes supporters spilled over to the Virginia General Assembly. 

The Green Building Legislation Debate

During the 2008 legislative session of the Virginia General Assembly (the “General Assembly”), two pieces of green building legislation faltered in a House of Delegates committee that would have had significant impacts on Virginia construction. Senators J. Chapman Peterson and Teddy Puller introduced the first bill, S.B. 447, the Green Building Act, on January 9, 2008.  As introduced, S.B. 447 required that departments, agencies and institutions “ensure” that construction of state-owned buildings 10,000 square feet or less comply with the USGBC LEED Silver standard.

After being introduced, S.B. 447 was then referred to the Committee on General Laws and Technology, where it emerged in a different form. The Committee’s amendment to S.B. 447 included an alternative green building rating system: “Green Building Design means . . . the USGBC’s LEED building rating system or the GBI’s Green Globes building rating system.” Furthermore, three additional components of the amendment limited the impact and scope of the green building legislation: (1) only “major facility projects located on state-owned land” were required to comply; (2) compliance was determined by phase-in dates over the next three years based on a building’s size; and (3) building’s required to comply “would not be required to obtain official Green Building design certification.”

The amended S.B. 447 passed in the Senate, 39-0, but died in the House of Delegates’ Committee on General Laws.  This would become a reoccurring theme in 2008 as Delegates Brian J. Moran and Joseph F. Bouchard also introduced a similar Green Buildings Act, H.B. 1195, which also did not make it out of the Committee on General Laws. Notably, both green building bills relied on the same enforcement mechanism: “The Department of General Services shall promulgate such regulations as are necessary to enforce this article.”

While regulation through the Department of General Services was most likely included to relieve cost impacts associated with LEED certification, this enforcement mechanism may cost more for the state and affected parties in the long run.  In order to enforce a green building regulation, the Department of General Services will have to create new rules and procedures, hire and train employees in green building practices and continuously monitor green building construction projects.  The non-profit USGBC was established in 1993 and has continuously refined both the LEED rating system and the certification process.  As a result, creating an enforcement agency for green building regulations may end up costing more for the Commonwealth of Virginia than certification through the USGBC.

Greening of the Governor’s Budget

The debate over the proper green building rating system for Virginia continued during the 2008 budget process, forcing the Governor to get involved.  Governor Tim Kaine had previously weighed in on his preferred green building rating system with the issuance of Executive Order 48 (“EO 48”) in 2007: “All agencies and institutions constructing state-owned facilities over 5,000 gross square feet . . . shall be designed and constructed consistent with . . . the U.S. Green Building Council’s LEED rating system (including the use of Virginia forest products with alternate certifications) or the United States Environmental Protection Agency/Department of Energy’s ‘Energy Star’ rating.”

Despite the previous Executive Order, the General Assembly forced the Governor to again choose a green building rating system during the 2008 budget process.  As part of Virginia’s biennial budget system, on December 17, 2007, Gov. Kaine introduced his Executive Biennial Budget for 2008-2010, which did not include any green building provisions.  As part of the budget process, the Governor’s budget was sent to the General Assembly to undergo legislative amendments and subsequent approval.  During the amendment phase, Senator R. Creigh Reeds added the following amendment to the budget: “All new and renovated state-owned facilities . . . that are over 5,000 gross square feet shall be designed and constructed consistent with the . . . U.S. Green Building Councils LEED rating system.” The Budget Conference Committee then received the budget and amendments and, not surprisingly, the Green Globes rating system found its way into Sen. Reeds’ amendment: “All new and renovated state owned-facilities . . . that are over 5,000 gross square feet shall be designed and constructed consistent with the . . . U.S. Green Building Councils LEED rating system or the Green Globes rating system.”

Del. Moran, who previously proposed adopting LEED-only standards in H.B. 1195, was critical of the budget amendment in a letter to Gov. Kaine: “In adopting the Green Globes standard, Virginia would be lowering environmental standards for state construction from the levels set in your Executive Order 48.” Del. Moran concluded his letter by requesting that Gov. Kaine amend the green building provision in the budget.  In order to remain consistent with his previous EO 48, Gov. Kaine used an Executive Amendment to strike the Green Globes rating system and included the Energy Star rating system.  On April 23, 2008, the House rejected the Governor’s Amendment, 44-54, and both the LEED and Green Globes rating systems remained part of the budget.

As green building continues to gain in popularity, Virginia legislators and the Governor will feel more pressure to enact significant green building legislation.  Many regional cities have already passed progressive green building codes and regulations, including Arlington, Virginia and Washington, D.C.  Based on the treatment of proposed green building laws in the 2008 General Assembly session and budget process, Virginia green building legislation will likely first focus on public projects.  The most contentious issue will arise over the incorporation of specific green building rating systems into the legislation.  The choice to incorporate LEED or Green Globes rating systems or both will signal the Virginia legislature’s level of commitment to more environmentally-friendly building practices.


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