It’s Not a ‘Stretch’

New ‘Green’ Laws May be Considered a Double-edged Sword

As Kermit the Frog so aptly put it: “It’s not easy being green.” While this may be true as it relates to a talking frog, achieving ‘green’ status doesn’t have to be an arduous process so long as you are familiar with the laws and regulations — federal, state, and local — that govern the process of going, and the status of being, green.
As the green movement continues to grow in both depth and breadth, so too do these laws and regulations.
In May, the Massachusetts Board of Building Regulations and Standards adopted an amendment to the Massachusetts building code, which has become known as the “Stretch Code.” This allows cities and towns throughout the Commonwealth to adopt stricter energy-savings provisions to their respective residential and commercial building codes. In communities that have adopted the Stretch Code, newly constructed single- and multi-family homes must achieve a HERS (Home Energy Rating System) index rating of 60 or less, as certified by a third-party HERS reviewer.
The HERS index is a ratings system introduced by the Residential Energy Services Network in 2006 that is used to calculate a home’s energy efficiency. The index is based on a point scale ranging from 1 to 100. The lower the score, the better. Locally, the Stretch Code has been adopted in Springfield, Holyoke, Northampton, Greenfield, Pittsfield, Palmer, and Easthampton, just to name a few.
As a point of reference, currently a newly constructed home in Massachusetts must achieve a minimum HERS rating of 99 (a rating of 100 represents the American Standard Building.) Consequently, a new single or multi-family home built in a municipality that has adopted the Stretch Code must be almost 40% more energy-efficient than the same home built in a municipality that has not adopted the code. Additionally, major renovations undertaken in cities and towns that have adopted the code must receive a HERS rating of 70 or less. While debate continues regarding the efficacy of the Stretch Code, one thing is certain — the cost of construction and/or major renovation of single- and multi-family homes in Stretch communities has increased, significantly in some cases.
One of the most recognized certifications that can be attained by builders, developers, building owners, and landlords is Leadership in Environment and Energy Design (LEED) standards set forth by the U.S. Green Building Council, which awards points based on building specifications. LEED certification can be achieved in a number of different areas, including but not limited to existing buildings (operations and maintenance), commercial interiors (leases/tenant improvements), core and shell (design for new core and shell construction), schools (construction of K-12 schools), retail (retail design and construction), and health care (planning, design, and construction for health care facilities).
More important is the fact that these certifications are being recognized and adopted as the benchmark in ever-increasing numbers by federal, state, and local governments. As such, many government entities are requiring that government buildings, new and existing, owned and leased, comply with LEED standards.
In Connecticut, a state law passed in 2006 that requires all new buildings costing more than $5 million dollars and financed with state funds to be constructed and designed in conformance with LEED standards. As a result, contractors who bid on applicable public projects must adhere to the LEED standards.
Likewise, in January of this year, California became the first state to implement a statewide green-building code. Some of the mandates of this new building code are the use of plumbing components designed to reduce water consumption, diversion of construction waste from landfills to recycling centers, and the inspection of mechanical systems and components to ensure that certain efficiency standards are being met. Interestingly, the code allows local municipalities to implement standards that are stricter than the state standards. As a result, a great deal of power will rest with local governments in determining their respective green-building requirements.
More and more companies and government entities are now demanding green lease space. For example, in 2007, the Energy Independence and Security Act of 2007 (EISA) was enacted, which set forth goals and standards for the reduction of energy use in federal buildings. This includes all buildings in which the federal government leases space. The new standards include the use of energy-efficient lighting fixtures and bulbs and a prohibition against federal agencies leasing space in buildings that do not have an Energy Star rating. Additionally, many companies have enacted sustainability statements that, in addition to other provisions, require that leases entered into by the company contain at least some green language. These mandates, along with a growing and continuing trend toward green building and green initiatives in general, are beginning to force landlords and tenants to rethink lease arrangements in order to meet the goals of both parties.
As you can see, the green movement’s momentum continues, and its reach has grown. As such, you would be wise to understand the related laws and regulations, and the effect they can have on your bottom line, both positive and negative. n

Dennis G. Egan Jr. is an associate with Bacon Wilson, P.C, concentrating in business and corporate law; (413) 781-0560; [email protected]