Presentation Transcript

1. Sustainability and Going Green: The Regulatory Environment June 9th, 2009 Bryan C. Jackson Partner, Allen Matkins Editor, Green Building Update
2. PART ONE: A. Background for laws (science / savings) B. Green Laws C. State regulatory actions (CEQA / SB32) PART TWO: State laws (AB 811 and possible Mello-Roos bond financing)
3. Bryan C. Jackson,Partner, Allen Matkins Editor, Green Building UpdateTelephone: 213.955.5575Facsimile: 213.620.8816bjackson@allenmatkins.comBryan is the Editor of the Green Building Update (GBU), a weekly publication on green and sustainable building issues. Launched in January 2008, the GBU has gained thousands of subscribers. The GBU is designed for those who want to stay on top of green building issues but do not have the time to read the hundreds of articles and studies published each week on the topic. Each week, the GBU summarizes the top 10 to 15 published articles, highlights significant green building projects, and provides links to new research and guidelines. allenmatkins.com/emails/nltr-green/ Since 1990 Bryan has served as an Adjunct Professor at the University of Southern California (USC). In the fall of 2008 Bryan taught the "Green Building and Sustainable Construction" course for the USC Master of Real Estate Development (MRED) program. For the prior 18 years he taught the MRED course entitled "Construction Management and Technology". As a frequent speaker and author, Bryan addresses a wide range of construction topics including green and sustainable design and construction issues. Green and sustainable construction goes hand in glove with Bryan's construction transactional practice. Bryan is a national expert in drafting and negotiating construction and design professional contracts for all project types including hospitals, sports facilities, dams, bridges, highways, airport hangars, universities, hotels, high-rise office buildings, desalination plants, mass transit systems, retail power centers, environmental remediation projects, climate-controlled public storage facilities, tenant improvements, luxury apartments, condominium, parking structures, themed rides at amusement parks, and mixed-use projects. In 2003 Bryan was admitted into the American College of Real Estate Lawyers. At Allen Matkins, Bryan is Chair of the Green Building and Sustainable Construction Group and Past Chair of the Construction Transactional Group. Bryan is the past Chair of the Los Angeles County Bar Association Subsection on Construction Law, and the past Chair of the Real Property Section. He is an International Board Member of the J. Reuben Clark Law Society and an Area Director of the California Region. Also, Bryan serves on the Planning Committee for the USC Real Estate and Business Symposium.
4. A. Background: CLIMATE CHANGE SCIENCE
5. Greenhouse Gases (Kyoto)
6. The higher emissions scenario The medium-high emission scenario The lower emission scenario
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8. Key GHG emissions sources
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11. A. Background: ECONOMIC SAVINGS
12. Perceived Costs: 2007 Survey2008 SurveyPossible Certified 0-2% + 1% 0% Silver 1-3% + 2% 0% Gold 4-6% + 3% 0% Platinum 7-12% 4% ?% LEED Costs (Allen Matkins Green Building Survey) 14
13. 1. Enhanced health and productivity 2. Lower operating costs 3. Minimized environmental impact 4. Increased value and lease-up rates 5. Net Savings = $58/sf./20 year GREEN BENEFITS 15
14. USGBC Subtotal $ 7.50Operating/maintenance $ 8.50Health/productivity$ 46.00 Total Saving: $62.00Net Saving: $58.00 16
15. Is the alleged savings of $46/sq. ft. in “health and productivity” real? 17 792816.01/LA
16. Scores improved significantly for reading and math Absenteeism reduced from 5% to 15% Health costs reduction averaged 41% Fewer teacher sick days Improved teacher retentionand recruitment  (Source: Capital E: Greening America’s Schools: Costs and Benefits, 08/29/08) Green Schools 18
17. CoStar analyzed 1,300 LEED and ENERGY STAR buildings (totaling over 350 million sf) and compared them with non-green buildings of similar size, location, class, tenancy and year-built. CoStar Study 19
18. COSATR STUDY *25-30% for all LEED buildings. For LEED gold and platinum buildings the savings approach 50%. *NBI Study provided similar energy savings numbers. 20
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20. B. GREEN LAWS
21. International 1992: 153 nations sign non-binding United Nations Framework Convention on Climate Change (UNFCCC) 1997: UNFCCC signatories meet and formulate Kyoto Protocol U. S. target set at 7% below 1990 baseline; reductions to be met by 2008-2012. 2007: UNFCCC - Bali
22. Federal (U.S.) 1978: Congress passes National Climate Program Act Carter has National Research Council investigate global warming Council responds with concern re CO2 1987: Global Climate Protection Act – directs EPA to develop a "coordinated national policy on global climate change" To date federal government has no mandates for GHG emissions reduction
23. Greenbuild 2007 | Chris Pyke | cpyke@ctgenergetics.com
24. $30,000 ? $300 $300,000,000
25. California 2002: AB 1493 to reduce GHG emissions from motor vehicles – stalled in litigation (was this litigation resolved by recent Obama negotiations with the car companies?) 2005: EO S-3-05 establishes statewide GHG emissions reduction targets –2000 levels by 2010, 1990 levels by 2020, 80% reduction from 1990 levels by 2050 2006: California Global Warming Solutions Act of 2006 (AB 32), requires CARB to adopt regulations by January, 2012, to reduce GHG emissions to1990 levels by 2020 2007: SB 97, requires OPR to prepare guidelines for the feasible mitigation of GHG emissions or the effects of GHG emissions and Resources Agency to certify and adopt those guidelines by 1/1/2010 2008:SB 375 – links transportation funding, regional planning and GHG emission reduction targets
26. Implementation of AB 32 2008: CARB to establish 1990 statewide GHG emission level as limit for 2020 – limit has been set at 427 million metric tons of CO2e – emissions in 2004 were approximately 469 mmt CO2e and projected to be 596 mmt CO2e by 2020 with Business As Usual (2020 target of 427 MMT CO2e is reduction of 169 MMT) 2009: adopt GHG Emissions Reduction Scoping Plan – workshops ongoing regarding this step – includes LUSCAT 2011: adopt regulations to achieve maximum technologically feasible and cost effective GHG reductions 2012: GHG emission reduction regulations must be in effect 2020 - GHG emissions reduced to 1990 levels Cap and trade program and credit for voluntary reductions
27. Implementation of AB 32 CARB Scoping Plan Summary – June 2008 2020 target of 427 MMT CO2e require reduction of 169 MMT CO2e (about 30%) from projected 2020 BAU emissions and 42 MMT CO2e (about 10%) from 2002-2004 average emissions Increased use or renewable energy by utility companies More green buildings Increased fuel efficiency with AB 1493 implemented Local government action- primarily land use decisions Carbon fees Cap and trade programs (25% of reduction goal) Offsets
28. OPR Technical Advisory CEQA and Climate Change June 19, 2008 Identify and quantify GHG emissions from a project Determine significance-lead agencies undertake a project-by-project analysis. Not every project emitting GHGs must be found to be cumulatively significant Mitigate impacts - all feasible mitigation measures to reduce impact to less than significant - not necessary to eliminate all GHG emissions from a project CARB staff to recommend method for setting threshold of significance for GHG emissions To release draft of CEQA guidelines on this issue
29. Scope of Challenge Ramifications of 80% reduction by 2050 In 2002-2004 California emissions averaged about 469 MMT of CO2e equals @14 tons per capita 1990 levels by 2020 means reduction to @10 tons per capita 80% reduction from 2020 levels by 2050, taking into account population growth, means reduction to @1.5 tons per capita Likely that U.S. emissions were never this low even in Colonial days The least CO2e emitting industrialized nations (France & Switzerland) have emissions of 6.5 tons per capita
30. Addresses land use contribution to accomplishment of AB 32 goals Facilitates establishment of regional GHG emission reduction targets for passenger vehicles and light trucks Development of regional Sustainable Communities Strategies (SCS) that achieve GHG reduction targets while accommodating housing needs Ties receipt of transportation money and expedited CEQA review to land use decisions consistent with SCS Streamlining for certain TOD’s and sustainable residential and mixed use residential projects SB 375
31. Regional-Proposed SCAQMD Proposed Rule 2301 Purpose – reduce emission growth from new development and redevelopment projects For covered projects discretionary permit applications filed with local jurisdictions pursuant to CEQA would also have to file an Air Quality Analysis application with the Air District prior to issuance of building permits Air quality permit issued only if project reduces emissions below a threshold (2 tons/year of NOx) by selecting a series of mitigation measures Covered projects include 70+ residential units, 55,000 sf of commercial, 80,000 light industrial, etc.
32. Local Climate Change Action Plans – over 30 cities and counties have adopted or are in process of adopting Sustainable Development Policies and Ordinances – Sacramento, Irvine Green Building Policies and Ordinances Local CEQA Climate Change Regulations
33. Local U.S. Conference of Mayors Climate Protection Agreement. Mayors have pledged to meet the emissions-cutting timetables established by the Kyoto Protocol (7% below 1990 emission levels by 2012) GHG emission reduction goals: (1) implement land-use policies that reduce sprawl, preserve open space, and create compact, walkable communities; (2) promote transportation options; and (3) practice and promote sustainable building practices using the USGBC LEED program or a similar system
34. Local Climate Change Action Plans - Green LA – 35% below 1990 by 2030 Numerous Sustainable Development Policies and Ordinances Numerous Green Building Policies and Ordinances Local CEQA Climate Change Regulations
35. Green Building Initiative – (EO) S-20-04State buildings reduce grid-based energy purchases by 20% by 2015 California Green Building Standards Code – July 2008 “Zero Net Energy” Buildings – CEC – by 2020 all new home ZNE, by 2030 all commercial buildings ZNE More aggressive voluntary and mandatory action encouraged for locals under AB 32 Existing homes and commercial buildings – environmental performance audits by utilities, performance rating system, AB 811-July 2008 Green Building Actions
36. STICK: Some laws require green certification for building permits and CFO’s CARROT: Some laws provide priority permitting, density bonuses or tax credits. Some lenders provide financial incentives. BOTH:Some laws combine the stick and the carrot GREEN BUILDING LAWS 41
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38. Additional Recommendations That May Be Implemented by Government Urban Land Institute - “Growing Cooler: The Evidence on Urban Development and Climate” – reduce VMT’s and encourage compact development California Chapter of the American Planning Association - “Planning Policy Principals for Climate Change Response” – encourage state and regional planning, green building ordinances and compact development California Energy Commission Integrated Energy Policy Report adopted December 2007 – encourages statewide growth management plan and regional transportation planning
39. C. State regulatory actions ADDRESSING CLIMATE CHANGE UNDER CEQA
40. CEQA Challenge “I’ve got 1,100 lawyers standing by and they’re looking for someone to sue.” California Attorney General Jerry Brown
41. Attorney General’s Comment Letters and CEQA Lawsuits AG’s letters requires lead agency to: analyze incremental effect the project will have on cumulative impact of global warming consider a project’s GHG emissions cumulatively significant where they may interfere with AB 32 goals there are a number of practical and feasible mitigation measures that can reduce a project’s warming impact In response to AB 32 and the AG’s actions, a number of California cities and counties have voluntarily initiated measures to reduce GHG emissions
42. San Bernardino – contesting EIR for County’s GP Settlement terms include County obligation toadopt a GP Update within 3 years that includes a GHG emissions reduction plan consistent with AB 32 Stockton – contesting EIR for GP Update Settlement terms include City preparing Climate Action Plan within 24 months Reduce VMT to same rate as population growth Require all new non-residential developments exceeding 5,000 sf to be LEED Silver certified or equivalent Require all new residential to conform to Build It Green Requires certain number if future residential units to be located in city center Attorney General’s Letters and Lawsuits
43. OPR Guideline Amendments CEQA and Climate Change April 13, 2009 Not cumulatively considerable if comply with approved plan Good faith effort to describe, calculate or estimate GHG emissions from a project Determine significance Mitigate impacts Now part of Appendix G Look to CARB for possible thresholds of significance
44. Significance Thresholds – CARB Working Group Draft proposal October 2008 Ultimate authority still with lead agencies Industrial projects – meet interim performance standards emit no more than 7,000 MT/Yr. Residential/commercial – meet interim performance standards
45. Project Design Features, Mitigation Measures and Alternatives An MND or EIR must identify mitigation measures and/or alternatives that could feasibly avoid or reduce to insignificance a projects potential environmental impacts Project Design Features Mitigation Measures Alternatives
46. Transportationeg.,enhanced bicycle and pedestrian access Energy Efficiency – eg., design buildings for passive heating and cooling and natural light Renewable Energyeg., install photovoltaic equipment Land Use Measureseg., clustering and increased density Water Conservation and Efficiencyeg., drought tolerant plants Solid Waste Measureseg., reuse and recycle construction waste Offsets – eg., offsite planting of vegetation Suggested PDFs/Mitigation Allen Matkins
47. Commitments during EntitlementNon-transportation GHG emissions
48. Action Plan Be Proactive - Develop an Effective CEQA Strategy Integrate Cost Effective PDF’s Into The Project as Part of an Integrated Planning, Design, Entitlement and Development Strategy
49. Action Plan Increase Commitment to Projects that Reduce VMT’s Such as Infill, Higher Density, TOD Develop Integrated Low Carbon Communities at the Edge or as Part of Suburban Redevelopment Participate In Local, State and Federal Legislative and Regulatory Efforts Closely Monitor LUSCAT, CARB, OPR, AG, SCAQMD, Local Agencies and CEQA Case Law
50. American Canyon Community United for Responsible Growth et al. v. City of American Canyon et al. – climate change is not new information Natural Resources Defense Council et al. v. Reclamation Board of Resources Agency of the State of California – no new information Santa Clarita Oak Conservancy, et al. v. City of Santa Clarita, et al. – upholds speculative finding Highland Springs v. City of Banning (Black Bench) - no law required City to consider global warming Recent CEQA/Climate Change Litigation
51. Westfield v. City of Arcadia – climate change analysis not required -- it is beyond scope of EIR NRDC v. Inland Energy – CEQA document failed to adequately analyze and quantify project’s contribution to global warming CBD v. City of Desert Hot Springs – must make meaningful effort to analyze project’s impact on global warming before concluding impacts are too speculative Recent CEQA/Climate Change Litigation
52. Key CEQA Issues Re Climate Change Environmental Setting Significance Thresholds Scope of Analysis Speculation Quantification Methodologies Relationship to Adequacy of Analysis Re Water Supply & Endangered Species Project Design Features/Mitigation
53. Standard of Review Under CEQA Abuse of discretion standard, i.e., a lead agency abuses its discretion if: (1) it does nor proceed as required by law; or (2) its determinations on questions of fact are not supported by substantial evidence An agency fails to proceed as required by law if an EIR’s analysis is based on an erroneous interpretation of CEQA’s requirements In assessing the adequacy of a lead agency’s environmental impact analysis, the reviewing court does not decide whether the agency’s determinations were correct, but rather whether there is any substantial evidence in the record supporting them Substantial evidence is defined as “enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached
54. “Living on Earth may be expensive, but it includes an annual free trip around the Sun.” – Anonymous Q & A
55. Contact Bryan C. Jackson Partner, Allen Matkins Editor, Green Building Update bjackson@allenmatkins.com (213) 955-5575