LEED Ordinances: Unlawful or Not? Philosophically Speaking…


Well, it looks like a courageous Palo Alto lawyer has decided to escalate the conversation as to whether LEED ordinances, city ordinances that require developers to build green, are lawful or not.  Here’s the background story.  Currently, Palo Alto requires public projects of 10,000+ sf to be certified under the USGBC guidelines, but they’re considering a mixture of alternatives that would require private developers to build to USGBC standards.  Generally speaking, there are two ways to get private developers to go green:

  1. Carrot Incentives – provide utility rebates, design allowances, floor area ratio increases, density increases, fast-track permits, etc.
  2. Stick Regulations – charge a "green fee" for developments that aren’t green, deny site plan or building permit approvals, or require LEED for approvals. 

Palo Alto City Attorney Gary Baum warned that green building requirements (i.e., stick regulations) have no legal basis.  Further, it’s in the city’s best interests to incentivize rather than restrict.  Let’s get legal, though.  What differentiates standard building codes with green building codes?  There’s a legal basis for adherence to standard building codes, but there’s no basis for green building codes?  Is it the police powers?  Where’s the argument for "no legal basis?"  I’m not saying I disagree, because personally, I think it’s more effective to go with option #1, carrot incentives.  But let’s enunciate the argument for there being no legal basis to adopt a LEED ordinance.

There’s a philosophical component to the situation and I see three general options:  wait on the free market, incentivize the market, or regulate the market.  The free market would likely be against both the second and the third, because incentives also interfere with market economics.  The incentivizer would say the free market never comes around and the regulator is a pain in the butt.  The regulator would say the free market is weak and slow and the incentivizer trades money for cooperation, the wrong way to make sure something gets done.  What do you think?  Free market? Incentivize?  Regulate? LEED Ordinances are illegal?    

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  • http://www.greenbuildingsnyc.com Stephen

    I feel like Baum’s comments in the article might have been taken out of context because I’m not really sure what the argument for the illegality of a LEED-driven building code is. Also, I agree with you that option #1 makes the most sense but I’d also be curious to see if a municipality could come up with a hybrid scheme as suggested in the article.

  • http://www.jetsongreen.com Preston

    Stephen over at GreenBuildingsNYC wrote about the same thing (with a unique perspective)! Great minds think alike. Here’s the link:


  • http://profile.typekey.com/lloydalter/ Lloyd Alter

    Gary Baum is nuts. Since Hammurabi 4000 years ago building codes have said what the governments want them to say. A building code is either setting a minimum standard for safety or it is an instrument of policy. The minute there were standards for insulation, requirements for toilets or anything beyond what is the minimum necessary to keep the building standing, the building regulations became policy instruments and the municipality can say whatever it wants.

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