ALI-ABA Course of Study Land Use Institute: Planning, Regulation, Litigation, Eminent Domain, and Compensation

Transcription

1 685 ALI-ABA Course of Study Land Use Institute: Planning, Regulation, Litigation, Eminent Domain, and Compensation Cosponsored by the Center for Urban and Environmental Solutions, Florida Atlantic University August 16-18, 007 San Francisco, California Climate Change and the Implications of LEED for Local Communities Planned for Growth By John J. Delaney Linowes and Blocher LLP Bethesda, Maryland

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3 687 CLIMATE CHANGE AND THE IMPLICATIONS OF LEED FOR LOCAL COMMUNITIES PLANNED FOR GROWTH By: John J. Delaney * Linowes and Blocher LLP AUGUST 17, 007 Introduction A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Respected scientists believe the two trends are related. For when carbon dioxide is released into the atmosphere, it acts like the ceiling of a greenhouse, trapping solar energy and retarding the escape of reflected heat. It is therefore a species the most important species of a greenhouse gas. 1 As the debate over global warming and its effect upon the environment widens, and as the federal government and some state governments appear not to be responding quickly enough, local governments around the country are seizing the initiative. This is not surprising since some nationwide polls indicate that a significant number of citizens now regard global warming as the world s greatest environmental problem. A recent survey revealed that one-third of Americans feel this way. 3 On the same day that The Washington Post ran this story, another article in the same newspaper focused on the Greenland ice cap, noting that the frozen interior of the Arctic island is shedding ice much faster than simple meltdown should explain. 4 Indeed, a scientific * The author wishes to acknowledge Joseph P. Lapan, a LEED Accredited Professional ( AP ) and an associate attorney with Linowes and Blocher, LLP for his assistance in preparing this paper. Opening paragraph of Opinion by Justice Stevens for the U.S. Supreme Court in Massachusetts, et. al., Petitioners v. Environmental Protection Agency, et. al., 549 U.S., 17 S. Ct. 1438, (007, holding that Petitioners have standing to challenge the EPA s denial of their rulemaking petition). See, e.g., Anthony Faiola and Robin Shulman Cities Take Lead On Environment As Debate Lags at Federal Level The Washington Post, June 9, 007 at A-1. Id. at A-10, referring to a Washington Post-ABC News-Stanford University Survey. The article further notes that the Bush Administration has agreed to seriously consider a European proposal to slash emissions 50% by 050, while rebuffing efforts to make the cuts mandatory. Id. Doug Struck, In Arctic, Ice Lessons on Effects of Warming, The Washington Post, June 9, 007, at A-11.

4 688 research team sent to the Arctic by the National Science Foundation, NASA and universities from around the world, concludes that the Jacobshavn Glacier is the fastest flowing glacier in the world. 5 The article quotes George Tsoflias, a scientist from the University of Kansas, warning that if all the ice on Greenland were to melt, the seas around the world would rise by.3 feet, submerging coastal cities in many countries. A modest three-feet rise would endanger 70 million people. 6 Meredith Nettles, a scientist at Columbia University, monitors a large glacier in eastern Greenland. Although she once thought that climate change would only affect ice sheets very slowly, she now believes that Greenland ice can respond to changes in climate much more quickly than anyone thought. 7 However, not all researchers agree that emissions of carbon dioxide are driving global climate change. For example, Professor Timothy Patterson of Carleton University in Ottawa and others have concluded, after eight years of research, that it is driven by changes in the output of the sun, not human emissions of carbon dioxide. One of Professor Patterson s colleagues reports that when the sun s radioactive output is higher, the solar wind is also stronger, thereby blocking cosmic rays from entering the earth s solar system, and hence the earth s atmosphere thus leading to fewer cloud formations that generally cool the earth s climate. 8 In citing these varying views, we take no position as to whether and to what extent global warming is a reality that poses a serious threat to the environment. However, the repeated publication of articles on the subject in prominent media outlets in recent years is a clear indication of the heightened level of concern about it among some citizens and local governments. This paper focuses upon some encouraging aspects of LEED, described below, as well as concerns about a major new initiative, namely the LEED for Neighborhood Development Rating System, (a/k/a LEED-ND ), recently published by the U.S. Green Building Council ( USGBC ). 9 These concerns are about the implications of LEED-ND for local governments in areas that are planned for growth Id. A video by the scientists researching the relationship between the melting Jacobshavn Glacier climate change may be viewed at In Arctic, Ice Lessons on Effects of Warming, at A-11. Id. Tom Harris, The Facts About Global Warming, The Washington Times, June 9, 007 at A-18. Mr. Harris is Executive Director of the Natural Resources Stewardship Project in Ottawa. USGBC developed the Pilot Version of the LEED New Development Rating System in partnership with the Congress for New Urbanism, Natural Resources Defense Council, and the U.S. Green Building Council.

5 689 I. Terminology To assist the reader, a Glossary of terms is provided in Appendix (i). 10 that do not appear therein nevertheless require comment: The first is: Two definitions LEED : a registered trademark of the USGBC, a national nonprofit organization dedicated to promoting and certifying green buildings. It means Leadership in Energy and Environmental Design. The second relevant definition is: Green Building : which describes design and construction practices that significantly reduce and eliminate the negative impacts of buildings on the environment through sustainable site planning, water conservation, energy efficient materials and use of renewables, resource conservation, and indoor environmental quality. This definition was provided by Tom Hicks, Vice President for LEED, USGBC at a Regional Leadership Conference on Green Building, on September 9, 006, at the University of Maryland. 11 The Conference was sponsored by a number of organizations including the Metropolitan Washington Council of Governments (hereinafter COG ). 1 Following the Conference COG also adapted a Resolution entitled Resolution Supporting the Development of a Regional Green Building Program, 13 a copy of which appears in Appendix (ii). II. The Good News It is encouraging to note that in some local jurisdictions, a number of ordinances, regulations or methodologies pertinent to acquiring LEED Certification Points may already exist, thus making it easier to become familiar with LEED. Some of these regulations and methodologies are discussed in Section II D See also Panel Member Robert Sitkowski s paper appearing elsewhere in these Course Materials for more extensive information in this regard. See Conference Report, pg. 10. Other sponsors included the Maryland Department of Natural Resources, Maryland Energy Administration, District of Columbia Energy Office, Virginia Energy Office, and the U.S. Environment Protection Agency. COG Resolution R55-06 adopted November 8,