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:
- Carrot Incentives – provide utility rebates, design allowances, floor area ratio increases, density increases, fast-track permits, etc.
- 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?