Thoughts on construction law from Christopher G. Hill, Virginia construction lawyer, LEED AP, mediator, and member of the Virginia Legal Elite in Construction Law

The Green Code Has Wings, But Will It Fly?

Green Builder CoalitionFor this week’s Guest Post Friday here at Musings, we welcome Mike Collignon. Mike is a co-founder of the Green Builder Coalition. The Green Builder® Coalition is working to improve the sustainable attributes of new and existing buildings through education, information and advocacy.

From November 2-6, code officials, building officials, industry stakeholders and other interested parties gathered in Phoenix for the final round of hearings on the International Green Construction Code (IgCC). Coming into the hearings, there were two big questions: Would this code pertain to low-rise residential structures, and what effect would GG34 have on the final draft? Once the dust settled, the industry is left with a code that is certainly a step in the right direction. However, its adoptability has to be questioned.

In the spirit of brevity, I won’t go into the 2.5 year saga of low-rise residential’s place within the IgCC. (You can read the unabridged story here.) Suffice to say it was in the original draft, and then it was removed by the ICC Board prior to public version 2.0. A group, including members of the Green Builder® Coalition, United States Green Building Council (USGBC), MC2 Mathis Consulting, the Southern Nevada Water Authority and 3 building officials from across the country, developed a comprehensive public comment to reinstate low-rise residential structures into the code. The comment, which can be downloaded in its entirety here, covered commonly accepted principals of sustainable construction (energy, water, site, materials, IAQ). Testifying in opposition to this comment were representatives from the National Association of Homebuilders (NAHB), American Architectural Manufacturers Association (AAMA), Buildings Owners & Managers Association (BOMA), Window & Door Manufacturers Association (WDMA), and 2 building officials. After hearing testimony, the voting members voted approximately 2-1 to disapprove the motion.Therefore, the IgCC only covers commercial and some high-rise residential structures. It turns a blind eye to low-rise residential, which according to the Energy Information Administration, utilizes more energy than commercial structures. In my opinion, this is an enormous hole in what could have been an incredibly impactful code. One opponent to the comment stated that with the housing market in such a tough spot, we don’t need to increase the cost of construction. But my response is, would the industry rather wait until things are going great, then throw a wrench in the works by having almost everyone retool their business practices to incorporate sustainable techniques, possibly risking another dip in the housing market? Why not get the education now, when supposedly everyone has a lot of down time?

Prior to the hearings, I heard a lot of buzz surrounding GG34 and its desire to reduce the length of the code by 75%. The proponents of this movement were, through a series of proposals in almost every chapter of the code, trying to shrink the document from 220+ pages to 50+ pages. Allegedly, at the core of this movement was a backlash towards the regulation of green. A more marketable way of saying that is GG34’s intent was to simplify the code. After Day 1 of the final action hearings, it certainly seemed like GG34 was going to sweep the IgCC right out the door. The principal members of the GG34 movement only spoke on a handful of proposals. They made their identity and position clear, by their promotional buttons and testimony, respectively. Of the 21 proposals heard on Day 1, 14 were disapproved, which further reduced the length of the code. GG34 Part 1 passed, which took a 2/3 majority, no small feat.

But then, Day 2 came and the tide went out on GG34. So, too, did the attendance. On Day 1, one electronic vote garnered 190 votes. But on Day 2, that number dropped to 130, or almost 32% fewer voting members. I feel that a lot of the voters sympathetic to the GG34 movement made their voice heard on Day 1, but then must have caught a flight back home. Throughout the rest of the week, GG34 Parts 2 through 11 were dismissed. Only GG34 Part 12 would join Part 1 in the victory column. One colleague stated that had all parts of GG34 been considered on Day 1, it would have carried the day… and the green code with it. I can’t disagree with that opinion.

I certainly feel the lowered attendance numbers had a lot to do with the failure of the GG34 movement. On Saturday afternoon, there were 55 votes captured in one electronic vote. In the wee hours of Saturday morning, testimony went past 1:00am CT. There were 34 hearty souls still dedicating their time and opinions to the proposals presented. According to one source, the lowest total seen during the week was 17 voters. However, the attendance numbers alone don’t tell the whole story. Those who voted all week long fully understood the intention of the code, and had a respect and appreciation for those who had devoted the last 2.5 years to its creation. They weren’t about to gut a document that had been reviewed and analyzed by so many.

But now comes the complicated part. Some jurisdictions have already adopted earlier versions of the IgCC. My guess is they will simply update what they’ve already approved. But what about those jurisdictions who voted with the GG34 movement on Day 1? They’re not going to get the drastically reduced code they sought, so will they adopt it at all? What about those jurisdictions who were looking to the ICC for low-rise residential guidance? They, too, are left to contemplate what their next steps will be. Finally, everything that was approved or disapproved in Phoenix is merely a recommendation to the ICC Board. They retain the right to produce whatever they see fit. Will they circumvent their governmental voting members and manipulate the code into something that fits better with their business goals, or adheres to any pre-existing business agreements?

I don’t have any inside knowledge on this, but I’m guessing the last thing ICC wants is a code few adopt. Let’s face it, their business is selling books and educating people on how to enforce the content of those books. The mixed messages heard in Phoenix provide a murky forecast for the IgCC. If you’re a proponent of green building, that’s probably not the verdict you really wanted to see.

As always, Mike and I welcome your comments below. Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.

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