[1] S.F., Cal., Env't Code ch. 7, § 700, http://www.municode.com/Resources/gateway.asp?pid=14134&sid=5 (last visited May 30, 2009).

[2] See infra Part III.A.

[3] Green building "encompasses ways of designing, constructing, and maintaining buildings to decrease energy and water usage and costs, improve the efficiency and longevity of building systems, and decrease the burdens that buildings impose on the environment and public health." City of Boston, Mayor Menino's Green Building Task Force Report Executive Summary 4 (2004); see also Bradford Swing, Project-Based Policy Development: Building the Case for Boston's Green Building Policy, 11 N.Y.U. J. Legis. & Pub. Pol'y 33, 48 (2007) (quoting Mayor Menino's Task Force Report).

[4] Rick Fedruzzi, President, Chief Executive Officer & Founding Chairman of the U.S. Green Bldg. Council, Opening Plenary Remarks at Greenbuild 2008 (Nov. 19, 2008), available at http://www.usgbc.org/Docs/News/Speech_Rick.pdf. The quote is not intended to suggest that the goals, concepts and techniques involved in green building suddenly materialized only fifteen years ago. Rather, many of the ideas implemented in green building codes-such as certain materials, passive designs, and solar equipment and design-have been used for decades, and in some cases, centuries. See, e.g., Bldg. Design & Construction, White Paper on Sustainability 4 (2003), available at http://www.usgbc.org/Docs/Resources/BDCWhitePaperR2.pdf. The quote specifically refers to the LEED programs developed by the USGBC. See generally Fedruzzi, supra. However, underlying this Article is the notion that the recent activities of the USGBC and similar groups have turned the ideas of green building into a viable and successful movement. As such, I would suggest that the quoted statement does refer to something more extensive than the LEED programs.

[5] Fedruzzi, supra note 4.

[6] Bldg. Design & Construction, Green Buildings and the Bottom Line (2006), available at http://www.bdcnetwork.com/contents/pdfs/whitepaper06.pdf [hereinafter BDC White Paper].

[7] Id. at 1.

[8] McGraw-Hill Constr., Residential Green Building SmartMarket Report 4 (2006), available at http://www.ferriercustomhomes.com/MHCResidentialGreenBuildingSmartMarketReport.pdf [hereinafter McGraw-Hill SmartMarket Report]. At this point in time, only three years after this prediction, McGraw-Hill's original figure appears to be too conservative. McGraw-Hill has recently noted that, even in this troubled economy, approximately 70% of homebuyers would prefer a green-built home, and that 20-25% of all new commercial and institutional construction starts will be green in 2013. McGraw-Hill Constr., SmartMarket Report: The Green Home Consumer 2 (2008), available at http://construction.ecnext.com/coms2/summary_0249-294662_ITM_analytics; McGraw-Hill Constr., 2009 Green Outlook: Trends Driving Change 2 (2008), available at http://construction.ecnext.com/coms2/summary_0249-294642_ITM_analytics.

[9] Bradford Swing categorically attributes the "key underlying issue motivating green building work [to be] . . . the threat of climate change." Swing, supra note 3, at 50. Likewise, Edna Sussman identifies the primary goal of green building to be a mitigating measure against carbon emissions and climate change. Edna Sussman, Reshaping Municipal and County Laws to Foster Green Building, Energy Efficiency, and Renewable Energy, 16 N.Y.U. Envtl. L.J. 1, 2 (2008). In contrast, Del Percio attributes the green building movement in general to the "sick building syndrome" of the 1960s and 70s. See Stephen T. Del Percio, The Skyscraper, Green Design, & the LEED Green Building Rating System: The Creation of Uniform Sustainable Standards for the 21st Century or the Perpetuation of an Architectural Fiction?, 28 Environs: Envtl. L. & Pol'y J. 117, 151 (2004).

[10] The market counterpart might be less passionate, but by no means less obvious: Wachovia's Bill Green is reported to have stated that, "[i]f you see two buildings, and one has good views and the one has good indoor air quality, the one with good views will always win." BDC White Paper, supra note 6, at 17. Green's point, of course, was that features contributing to market value (based on how the market perceives value) are more influential-and will "win"-than features which might be understood as mere preference. Yet, as discussed herein, green building challenges our prior perceptions of value in the marketplace.

[11] See City of Boston, supra note 3, at 4.

[12] See generally id. (describing how green building takes advantage of local climate and landscape conditions to conserve resources and enhance the quality of life).

[13] See N.Y., N.Y., Local Law 86, § 1 (Sept. 15, 2005) (describing the need for construction and the potential for increased efficiency), available at http://nyc.gov/html/dob/downloads/pdf/ll_86of2005.pdf.

[14] See City of Boston, supra note 3, at 1.

[15] See N.Y., N.Y., Local Law 86, § 1 (Sept. 15, 2005), available at http://nyc.gov/html/dob/downloads/pdf/ll_86of2005.pdf.

[16] See generally id. (describing the unsustainable practices associated with traditional building construction, renovation, and operation).

[17] See U.S. Envtl. Prot. Agency, Supplemental Environmental Projects: Green Building on Contaminated Properties 1-2 (2004), available at http://www.epa.gov/compliance/resources/policies/cleanup/brownfields/sep-redev-fs.pdf.

[18]See U.S. Dep't of Labor, Occupational Safety & Health Admin., Indoor Air Quality, http://www.osha.gov/SLTC/indoorairquality/index.html (last visited May 30, 2009) (discussing indoor air quality and its health implications.).

[19] See Mark Sagoff, At the Shrine of Our Lady of Fatima, or Why Political Questions Are Not All Economic, 23 Ariz. L. Rev. 1283, 1285 (1981) (for a discussion of how economic interests influence building decisions).

[20] See generally Robert Thompson & William Green, When Sustainability is Not a Priority: An Analysis of Economic Trends and Strategies, 6 Int'l J. Sustainability Higher Educ. 7, 8 (2005) (discussing how very few institutions of higher learning have made sustainability a priority).

[21] U.S. Envtl. Prot. Agency, Go Green! Monthly Newsletter, http://www.epa.gov/newsroom/gogreen/index.htm (last visited May 30, 2009).

[22] See Del Percio, supra note 9, at 127-32 (discussing the history of green building from various American disciplines); Swing, supra note 3, at 52 (noting that less than a decade ago green building was still an idea in its infancy); Charles J. Kibert, Greenbuildings: An Overview of Progress, 19 J. Land Use & Envtl. L. 491, 497-501 (2004) (describing the global economic influences on green building development).

[23] U.S. Green Bldg. Council, LEED for Homes Program: Pilot Rating System 4 (Version 1.11a, 2007), available at http://www.usgbc.org/ShowFile.aspx?DocumentID=2267. In 2004, EPA reported approximately 76 million residential and 5 million commercial buildings in the United States. See U.S. Envtl. Prot. Agency, supra note 17, at 1.

[24] Kibert, supra note 22, at 492.

[25] Charles Kibert details the difficulty in defining terms this early in the green building movement as follows:

Perhaps the most complex terminology used is sustainable construction which encompasses the notion of green building, but, in the spirit of sustainable development, addresses the social and economic issues of habitat, as well as the community context of buildings. 'Green' buildings are a subset of sustainable construction, representing simply the structures. In effect truly sustainable 'green' commercial buildings that are designed to be sustainable in the sense of renewable energy systems, closed materials loops, and full integration into the landscape are scarce to non-existent. High performance green buildings represent the current state of best practices with respect to attempting to reach the Holy Grail of sustainable building. In the present era, green buildings generally represent incremental change rather than radical rethinking of the built environment. However this is an important first step and the green building landscape is populated with ever more experiments representing the trial and error process of getting to sustainable buildings.

Kibert, supra note 22, at 492.

[26] This Article is specifically concerned with building codes, laws and ordinances that govern a "whole systems" approach to building design, construction, and operation. Therefore, this Article does not address other sustainability approaches and sustainable development codes that may be designed with similar purposes in mind. Examples might include green procurement strategies, rainwater harvesting ordinances, efficient irrigation laws, and gray-water use regulations, among others. See, e.g., City of Costa Mesa, Cal., City Council Agenda Report on Draft Council Policy 500-14, at 7-8 (Sept. 4, 2007), available at http://www.ci.costa-mesa.ca.us/council/agenda/2007-09-04/090407MunicipalGreenPolicy.pdf (specifying low-water use landscaping, with consideration given for artificial turf for public recreational fields); Dallas, Tex., Resolution on Green Cement Purchasing Preference (May 23, 2007), available at http://greendallas.net/pdfs/cement_kiln_ordinance.pdf (identifying a preference for awarding bids to public construction proposals that procure "green cement"-defined by the process in which the cement is produced).

[27] See generally James A. Kushner, Smart Growth: Urban Growth Management and Land-Use Regulation Law in America, 32 Urb. Law. 211, 212 (2000) (discussing the current state of the law in relation to smart growth initiatives); Patricia E. Salkin, The Smart Growth Agenda: A Snapshot of State Activity at the Turn of the Century, 21 St. Louis U. Pub. L. Rev. 271, 272 (2002) (reviewing state smart growth activities).

[28] Some of the specific practices employed in green building practices are occasionally shared in conventional homes and in conventional building codes. To some extent, many if not most buildings can be considered green. See Allan M. Bilka, Int'l Code Council, ICC Green Building White Paper 1-2 (2007), available at http://www.iccsafe.org/news/green/ICC_Green_Building_White_Paper.pdf. See also Int'l Code Council, ICC Green Building White Paper II: The Case for the International Codes as the Foundation for Green And Sustainable Building Programs and Standards, available at www.iccsafe.org/news/green/ICC_Green_Building_White_Paper2.pdf. Green building, however, is based less on specific practices than it is on general principles, encouragement for innovation, and ideals of quality of life within a larger community. This is not to say that they are necessarily incompatible or contrary to one another. Nevertheless, the two are distinct, which provides an important point about green building: as the green building movement presented itself in an already existing, developed industry of construction, it was apparent that the ideas in green building were new.

[29] U.S. Green Bldg. Council, LEED for Homes Rating System, at iv (2008), available at http://www.usgbc.org/ShowFile.aspx?DocumentID=3638 [hereinafter LEED for Homes]; U.S. Green Bldg. Council, LEED for New Construction and Major Renovations, at 6-7 (Version 2.2, 2005), available at http://www.usgbc.org/ShowFile.aspx?DocumentID=1095 [hereinafter LEED NC].

[30] LEED for Homes, supra note 29, at iv ("By recognizing sustainable design and construction in homes nationwide . . . homebuyers can more readily identify third-party verified green homes.").

[31] The USGBC is a nonprofit organization comprised of various members from all aspects of the building industry. U.S. Green Bldg. Council, About USGBC, http://www.usgbc.org/DisplayPage.aspx?CMSPageID=124 (last visited May 30, 2009).

[32] LEED NC, supra note 29. LEED NC Version 2.2 is the basis for registration of applicable projects after January 1, 2006. Id. For other similar and comparable green building programs, see notes 130-34, 235, and accompanying text. Generally, the rating systems share the core elements discussed herein, with some variations according to philosophies, regional preferences, and needs.

[33] See, e.g., Tremco, Inc., LEED Information, http://www.tremcosealants.com/commercial/green/leed.asp (last visited May 30, 2009) ("LEED-NC is the most common program for sustainable building design in use today.").

[34] LEED for Homes, supra note 29, at iv; LEED NC, supra note 29, at 6-7.

[35] LEED For Homes, supra note 29, at iv.

[36] For purposes of simplicity, this Article generally uses the term "builder" to refer broadly to the various professionals engaged in the process of building construction, including but not limited to architects, engineers, contractors, and designers.

[37] LEED for Homes, supra note 29, at 33.

[38] LEED NC, supra note 29, at 9. Note that LEED NC combines the on-site and off-site impacts into the Sustainable Sites category, encouraging consideration of both the site selection and use of the building site. See id. at 8-23. However, LEED for Homes separates the two into the Sustainable Sites category for on-site considerations, and Location & Linkages for off-site impacts. See LEED for Homes, supra note 29, at iv.

[39] LEED NC, supra note 29, at 10.

[40] Id. at 11.

[41] LEED for Homes, supra note 29, at 44.

[42] Id. at 35.

[43] Id. at 42.

[44] Id. at 33. LEED NC requires that builders meet the more stringent of either local erosion and sedimentation control standards, or stormwater discharge requirements under the Clean Water Act National Pollution Discharge Elimination System regulations. LEED NC, supra note 29, at 8, 18-19.

[45] LEED NC, supra note 29, at 20-21.

[46] Id. at 24; LEED for Homes, supra note 29, at 46.

[47] LEED NC, supra note 29, at 24-25; LEED for Homes, supra note 29, at 46-48.

[48] LEED NC, supra note 29, at 25-26; LEED for Homes, supra note 29, at 46.

[49] LEED NC, supra note 29, at 28; LEED for Homes, supra note 29, at 46, 52-53.

[50] LEED NC, supra note 29, at 29; LEED for Homes, supra note 29, at 55.

[51] LEED for Homes, supra note 29, at 58, 62, 64-72.

[52] Id. at 55.

[53] Id. at 73; LEED NC, supra note 29, at 36, 42.

[54] LEED NC, supra note 29, at 41.

[55] Id. at 43-56; LEED for Homes, supra note 29, at 77-84.

[56] LEED For Homes, supra note 29, at 77.

[57] LEED NC, supra note 29, at 53-54.

[58] LEED For Homes, supra note 29, at 79, 83.

[59] LEED NC, supra note 29, at 44-46.

[60] Id. at 49-50.

[61] Id.

[62] Id. at 57.

[63] Build It Green, New Home Construction Green Building Guidelines 10 (2007), available at http://www.builditgreen.org/system/files/uploads/GreenPoint%20Rated/Guidelines_checklists/2007-New-Home-Guidelines.pdf.

[64] VOCs are a known precursor to ground-level ozone and are considered a health hazard. See LEED For Homes, supra note 29, at 114 (defining VOC as: "A carbon compound that vaporizes (becomes a gas) at normal room temperatures. VOCs contribute to air pollution directly and through atmospheric photochemical reactions to produce secondary air pollutants, principally ozone and peroxyacetyl nitrate.").

[65] LEED For Homes, supra note 29, at 85-92, 95; LEED NC, supra note 29, at 60-64.

[66] LEED NC, supra note 29, at 65-69.

[67] Id. at 58.

[68] Id. at 70; LEED For Homes, supra note 29, at 96-97.

[69] LEED For Homes, supra note 29, at 23. LEED NC is less specific, and instead awards points primarily for exceeding the performance requirements. LEED NC, supra note 29, at 77.

[70] LEED For Homes, supra note 29, at 19.

[71] Id. at 2.

[72] Id. at 9.

[73] Id. at 26-31.

[74] Id. at 25.

[75] Id. at 31.

[76] Id. at 101-04.

[77] E.g., Jim Broughton, Green Building: What We Have Learned About Costs, Savings and Value, Envtl. Design & Construction, Nov. 1, 2006, at 110; Cal. Integrated Waste Mgmt. Bd., Green Building Basics, http://www.ciwmb.ca.gov/greenbuilding/basics.htm (last visited May 30, 2009).

[78] See generally LEED For Homes, supra note 29, at 101-04.

[79] Stephen Tobriner, The History of Building Codes to the 1920s, in Proceedings of the Structural Engineers Association of California: 1984 Convention 49, 56 (1984).

[80] Although this statement may seem fairly obvious, elsewhere I have argued that this circumstance provides a persuasive reason to think strategically rather than dogmatically about resolving our environmental problems. See Keith H. Hirokawa, Some Pragmatic Observations About Radical Critique in Environmental Law, 21 Stan. Envtl. L.J. 225, 260 (2002). It seems reasonable to suggest that the lesson should also be applied when assessing the efforts of new movements to change social and legal conventions.

[81] Id.

[82] Building codes are sets of legal requirements having to do with the physical structure of buildings, primarily new buildings. There are several areas of code administration that are closely associated with building codes and should properly be included as part of it. These are the electrical code, the plumbing code, and the mechanical code. Related areas of code administration that are generally not included are the housing code, which emphasizes healthful living, and the zoning code, which emphasizes a desirable municipal environment.

Gaylon R. Claiborne, Principles of Building Codes, in 1 Readings in Code Administration 31, 31 (Richard L. Sanderson ed., 1974).

[83] Id.

[84] Tobriner, supra note 79, at 50.

[85] Id.

[86] Robert C. Levy, Home Rule, Uniformity, and Performance Standards in Codes, in 1 Readings in Code Administration, supra note 82, at 69, 73 (discussing the tension between the need for uniformity in setting prescriptive standards and the draw of subjectivity in performance standards).

[87] Id.

[88] Tobriner, supra note 79, at 49 (quoting the Code of Hammurabi).

[89] See, e.g., Fedus v. Zoning & Planning Comm'n of Colchester, 964 A.2d 549, 555-556 (Conn. App. Ct. 2009) (finding, without regard for past practices or for whether alternative materials would perform effectively, that "there are no exceptions . . . to the requirement that pipes be made from reinforced concrete").

[90] H.P. Kucera, Legal Aspects of Building Department Administration, in 1 Readings in Code Administration, supra note 82, at 234, 238.

[91] See generally id. (describing the benefits of building codes and rules).

[92] Bradford Swing identifies the concerns behind green building as adaptive, rather than technical, problems. Swing, supra note 3, at 49. Technical problems are those that can be resolved by straight-forward application of expertise, such as the expertise with which a plumber fixes a clogged drain. By contrast, an adaptive problem requires experimentation, discovery, and adjustment in our practices to accomplish a novel goal. Id.

[93] See id.

[94] Verner L. Lane, Code Problems and New Fastening Methods for Wood, in 3 Readings in Code Administration, supra note 82, at 191, 193 (arguing that only a performance based building code will allow for the acceptance of innovative techniques and building materials).

[95] Id.

[96] See generally id.

[97] See, e.g., Kelly Lemons, Permitting Green Projects: City Undergoing Greening Pains in Permit Process, Bellingham Bus. J., Dec. 2007, http://www.thebellinghambusinessjournal.com/december2007/greenPermits.php (last visited May 30, 2009) ("[C]ity planners' and developers' lack of experience with permitting green building . . . makes the process difficult . . . .").

[98] See Gail A. Lindsey, Building Values, in Reshaping the Built Environment: Ecology, Ethics, and Economics 195, 205-06 (Charles J. Kibert ed., 1999) ("We learn as individuals and as a society by evaluating, measuring, observing, and noting the consequences of our actions over time-recording what works and what doesn't. Unfortunately, we have had few plans and benchmarks for our pursuits in the sustainable design world until recently.").

[99] Charles J. Kibert, The Promises and Limits of Sustainability, in Reshaping the Built Environment: Ecology, Ethics, and Economics, supra note 98, at 9, 32 ("Shifting to construction products that can be considered environmentally responsible or 'green' is hampered by a lack of definition of what comprises these materials.").

[100] The 2006 McGraw Hill SmartMarket Report identifies several primary obstacles to green building: higher perceived initial costs, consumer willingness, lack of public information, and the inflexibility of current building codes. McGraw-Hill SmartMarket Report, supra note 8, at 13.

[101] Hence, Edna Sussman opens her Article on green building with a story about Al Gore's difficulties in acquiring permits to install solar panels on his home; apparently, the local building code did not permit solar panels, and the subsequent appeal to the legislative body to amend the otherwise inflexible building code was frustrating. Sussman, supra note 9, at 1. Al Gore's experience is not unique. Early surveys on the perceived obstructions to green building efforts showed code inflexibility in prescriptive building requirements as a major contributing disincentive to green buildings. See, e.g., David Eisenberg et al., Breaking Down the Barriers: Challenges and Solutions to Code Approval of Green Building 1 (2002), available at http://www.dcat.net/resources/breaking_down_barriers.pdf (reporting the results of an industry-wide survey to determine the primary causes of green building application obstructions).

[102] See generally Eisenberg et al., supra note 101, at 2, 21 (noting that green alternatives are often denied approval because of a lack of supporting information about the product, materials, system, or design that can satisfy safety concerns).

[103] Id. at 21.

[104] See id. ("Applications are more likely to be denied . . . if they lack sufficient supporting information about the green product, material, system, or design to satisfy safety concerns.").

[105] See id. at 14 (code officials blamed denial of green alternatives on "lack of adequate supporting information" and "insufficient technical knowledge," thereby stifling green development).

[106] See, e.g., Secretariat of the Comm'n for Envtl. Cooperation, Green Building in North America 55-56 (2008), available at http://www.cec.org/files/PDF//GB_Report_EN.pdf (describing uncertainty as one cost barrier "that developers, real estate professionals, and some capital providers feel about green building").

[107] See Eisenberg et al., supra note 101, at 21.

[108] Hence, Thomas Kuhn noted that a shift in scientific paradigms could not be considered complete, noteworthy, or even possible, until a portion of the scientific community took the new ideas seriously. See generally Thomas Kuhn, The Structure of Scientific Revolutions 6 (2d ed. 1970) ("The extraordinary episodes in which that shift of professional commitments occurs are the ones known in this essay as scientific revolutions."). Other disciplines and professions face similar circumstances. Id.

[109] See Alex Tynberg, The Natural Step and Its Implication for a Sustainable Future, 7 Hastings W.-Nw. J. Envtl. L. & Pol'y 73, 73 ("The current economic and legal system in the United States fails to guide society towards a sustainable future."). In his introduction Tynberg emphasized "[t]he key to achieving sustainability is to change the practices of commerce, which presently exist unencumbered by real connections to the environment." Id.

[110] For instance, warranties of habitability and workmanlike construction have applied in many instances to the fitness of new construction for purposes of habitation to reflect the unequal bargaining power of the parties and the importance of safety in the construction industry. See, e.g., McDonald v. Mianecki, 398 A.2d 1283, 1292 (N.J. 1979) (finding an implied warranty of habitability and workmanship in builder-vendor construction contracts); Groff v. Pete Kingsley Bldg., Inc., 543 A.2d 128, 131-32 (Pa. Super. Ct. 1988), appeal dismissed, 567 A.2d 1041 (1990) (holding that a construction contract between builder and layperson included an implied warranty of habitability and workmanship due, in part, to the unequal bargaining power of the parties).

[111] See, e.g., U.S. Green Bldg. Council, LEED Rating Systems, http://www.usgbc.org/DisplayPage.aspx?CMSPageID=222 (last visited May 30, 2009) (explaining its rating system for green buildings as the "nationally accepted benchmark for the design, construction and operation of high performance green buildings.").

[112] There may have been (and may continue to be) fear about whether laws regulating deceptive trade practices would be applicable to green building standards. Deceptive trade practices legislation currently addresses standards for organic foods; will it apply (and how) to green building? See, e.g., Alaska Stat. § 17.06.010 (2008) (statute on organic food labeling); see also Claudia L. André, Comment, What's In That Guacamole? How Bates and the Power of Preemption Will Affect Litigation Against the Food Industry, 15 Geo. Mason L. Rev. 227, 228 (2007) (examining consumer protection litigation over misleading product labeling); Delcianna J. Winders, Note, Combining Reflexive Law and False Advertising Law to Standardize "Cruelty-Free" Labeling of Cosmetics, 81 N.Y.U. L. Rev. 454, 456 (2006) (examining legal tools for strengthening rules on representations in product labeling concerning animal testing and cruelty).

[113] Historically, building code violations could constitute negligence per se. See, e.g., Real Estate Mktg., Inc. v. Franz, 885 S.W.2d 921, 927 (Ky. 1994). On the other hand, compliance with building codes constitutes a significant defense. Which applies to a building constructed to alternative, performance-based standards? In all likelihood, green buildings will be subject to the same litigation over negligence through which any alternative building method would suffer. See, e.g., Davis v. Fischer Single Family Homes, Ltd., 231 S.W.3d 767, 777 (Ky. Ct. App. 2007) (submitting to the jury the question of building code violation where the applicable building code provision allowed for alternative use of "materials and methods which substantially comply with the spirit of the code."). In such a context, it will be little reprieve to know that plaintiffs will bear the burden of demonstrating causation.

[114] Building officials might legitimately fear claims of negligent review and enforcement of conventional building code standards. Despite the protections afforded to municipal officials (public duty doctrine), the risk of liability based on an informational gap can be daunting. See, e.g., Brown v. Syson, 663 P.2d 251, 252 (Ariz. Ct. App. 1983) (applying negligence principles to the exercise of building official's duties); Butler v. Bogdanovich, 705 P.2d 662, 663 (Nev. 1985) (duty of care owed in inspecting building for defects).

[115] See generally Geoff White, The Legal Issues of Green Real Estate Finance, Green Real Estate L.J., Jan. 23, 2009, http://www.greenrealestatelaw.com/2009/01/legal-issues-of-green-real-estate-finance (last visited May 30, 2009) (identifying some of the threshold liability issues concerning lenders and recommending that lenders convene a "green team" so that certification and operational issues will be understood).

[116] See id.

[117] See Eisenberg et al., supra note 101, at 14.

[118] E.g., BDC White Paper, supra note 6, at 7 ("[The initial] inability to convert general client interest in sustainability into a more substantial amount of work may be linked to client concerns over the up-front cost of green buildings."); Greg Kats, The Costs and Financial Benefits of Green Buildings: A Report to California's Sustainable Building Task Force 12 (2003), available at http://www.ciwmb.ca.gov/greenbuilding/Design/CostBenefit/Report.pdf ("There has been a widespread perception in the real estate industry that building green is significantly more expensive than the traditional methods of development."); Swing, supra note 3, at 49, 52 (recognizing that one of the initial hurdles for green building is to deal with the "perceived 'green premium.'").

[119] See BDC White Paper, supra note 6, at 4.

[120] See generally Kats, supra note 118, at 12-13 (describing some of the barriers to obtaining information on green building, particularly with respect to costs); cf. id. at 11 (suggesting the importance of the increasing availability of data in the emerging green building industry).

[121] See Eisenberg et al., supra note 101, at 14.

[122] See BDC White Paper, supra note 6, at 4; Eisenberg et al., supra note 101, at 14, 17.

[123] See Eisenberg et al., supra note 101, at 16.

[124] See, e.g., BDC White Paper, supra note 6, at 4 ("The launch of LEED for New Construction in 2000 was accompanied by dire predictions in some quarters of the construction industry that LEED buildings could cost 20-25% more than conventional buildings.").

[125] Id.

[126] Not all of the early green building laws have been voluntary. Some have instead mandated that both private and public construction meet LEED or other comparable green standards. See infra Part IV.A.

[127] For example, the California Building Standards Commission recently adopted the 2008 California Green Building Standards Code. See Cal. Code Regs. tit. 24, pt. 11 (2008), available at http://www.documents.dgs.ca.gov/bsc/2009/part11_2008_calgreen_code.pdf.

[128] See, e.g., City of W. Hollywood, Green Building Program, http://www.weho.org/greenbuilding/ (last visited May 30, 2009) (describing the city's green building ordinance, which includes an "education and outreach program").

[129] At present, the most widely employed standard in state and local legislation is the LEED certification, first promulgated by the USGBC as a pilot program in 1998. See Chris W. Scheuer & Gregory A. Keoleian, Nat'l Inst. of Standards & Tech., Evaluation of Leed Using Life Cycle Assessment Methods 16-17 (2002), available at http://www.bfrl.nist.gov/oae/publications/gcrs/02836.pdf. LEED currently boasts six related but separate programs, including neighborhood development, homes, commercial, and home renovation, among others, with some programs currently in pilot stage. See U.S. Green Bldg. Council, supra note 111.

[130] The Green Globes program was developed by the Green Building Initiative (GBI), a non-profit organization which has as its purpose the implementation of healthier and more sustainable building practices. See Green Bldg. Initiative, About GBI, http://www.thegbi.org/about-gbi/ (last visited May 30, 2009). Green Globes was modeled after the guidelines produced by the National Association of Homebuilders. Id.

[131] Energy Star is a joint agency program between the U.S. Environmental Protection Agency and the U.S. Department of Energy. See Energy Star, About Energy Star, http://www.energystar.gov/index.cfm?c=about.ab_index (last visited May 30, 2009). The intent of Energy Star has consistently been to advance the use of energy efficient products and practices. Id.

[132] The National Association of Homebuilders (NAHB), although a latecomer relative to the other associations, has provided insightful guidance in the Model Green Home Building Guidelines, which reaches deep into the principles of green building. Like the LEED programs, the NAHB guidelines organize green building into separate but related principles: lot design, preparation, and development; resource efficiency; energy efficiency; water efficiency; environmental quality; operation, maintenance, and homeowner education; global impact; and site planning and land development. See Nat'l Ass'n of Home Builders, NAHB Model Green Home Building Guidelines 1-4 (2006), available at http://www.nahbgreen.org/content/pdf/nahb_guidelines.pdf. The NAHB guidelines further emphasize the advantages of converting to green building or making the choice to build green. See id. The primary benefits of green building, when compared to ownership of conventional homes, include lower operating costs, increased comforts, improved environmental quality, enhanced durability, and less maintenance. Id. at 4.

[133] EarthCraft House was founded in 1999 as a partnership between Southface and the Greater Atlanta Home Builders Association. See EarthCraft House, EarthCraft House Homepage, http://www.earthcrafthouse.com/index.html (last visited May 30, 2009). An Atlanta-based, regional residential green building program, EarthCraft presently boasts certification of over 4000 EarthCraft House single family homes and over 1500 EarthCraft Multifamily dwelling units. Id. Earthcraft includes promotion of comprehensive natural and built environmental planning, resulting in six EarthCraft Communities in the Greater Atlanta region and promotion of green affordable housing. Id.; EarthCraft House, EarthCraft Communities, http://www.earthcrafthouse.com/About/communities.htm (last visited May 30, 2009). EarthCraft certification includes achieving a minimum point allocation and EnergyStar certification. EarthCraft House, The EarthCraft House Story, http://www.earthcrafthouse.com/About/about.htm (last visited May 30, 2009); EarthCraft House, EarthCraft House Guidelines Overview, http://www.earthcrafthouse.com/About/criteria.htm (last visited May 30, 2009).

[134] Build It Green, a nonprofit organization in Alameda County, California, first designed a Green Building program in 2000 intended to serve multiple objectives, including use as an educational tool for local governments, builders, and homeowners; presentation of flexible foundations in accomplishing the goals of green building; and creation of a uniform set of guidelines built upon the collaboration of government and building industry experts. See Build It Green, supra note 63, at 4. Among other things, the Build It Green guidelines are as user-friendly as they are comprehensive and specific in identifying the elements of building design and construction which can contribute to green building objectives. In large part, the success of Built It Green is attributable to the collaborative process in its development, calling on representatives from builders, local governments, and green building experts. See id.

Build It Green identifies four fundamental and converging objectives to guide application of green building concepts: conserve natural resources, use energy wisely, improve indoor air quality, and plan for livable communities. Id. at 9. Build It Green focuses on the manner in which these objectives converge and on the methods used to achieve them. For instance, use of recycled building materials can concurrently conserve forest resources, reduce indoor emissions from new building materials, and can even extend the life expectancy of a building. Id.

[135] See U.S. Green Bldg. Council, Green Building Rating System for Existing Buildings: Upgrades, Operations and Maintenance (LEED-EB) Version 2, at 2 (2004), available at http://www.usgbc.org/Docs/LEEDdocs/EB-final%20content%20version.pdf.

[136] See, e.g., U.S. Green Bldg. Council, LEED for Homes Point Categories, http://www.greenhomeguide.org/green_home_programs/leed_for_homes_points.html (last visited May 30, 2009).

[137] See, e.g., id.

[138] Examples of this flexibility are documented in Davis Langdon's report, which points out that (not surprisingly) many of the choices in green standard compliance are driven by increases in building costs. See Davis Langdon, Cost of Green Revisited: Reexamining the Feasibility and Cost Impact of Sustainable Design in the Light of Increased Market Adoption 23 (2007), available at http://www.davislangdon.com/upload/images/publications/usa/the%20cost%20of%20green%20revisited.pdf [hereinafter Langdon, Cost of Green Revisited]; see also Davis Langdon, Costing Green: A Comprehensive Cost Database and Budgeting Methodology 25 (2004), available at http://www.usgbc.org/Docs/Resources/Cost_of_Green_Full.pdf.

[139] Carl J. Circo, Using Mandates and Incentives to Promote Sustainable Construction and Green Building Projects in the Private Sector: A Call for More State Land Use Policy Initiatives, 112 Penn St. L. Rev. 731, 735 (2007-2008).

[140] Id. at 756.

[141] Id. at 765.

[142] Id. at 753.

[143] See Gainesville, Fla., Code of Ordinances ch. 6, art. I.5, § 6-12 (2008), http://www.municode.com/resources/gateway.asp?pid=10819&sid=9 (last visited May 30, 2009).

[144] Id. § 6-12(1), (4).

[145] Id. § 6-12(2).

[146] Id. § 6-12(3).

[147] Sarasota County, Fla., Res. 2005-048 (Mar. 15, 2005), available at http://www.scgov.net/Sustainability/documents/GreenBldg2005048.pdf.

[148]Id.

[149] See supra Part III.A.

[150] One significant development in green building codes is the expansion of the scope of building code review. Traditionally, although building codes may have exhibited broad goals, the exact subject matters of regulations have been quite limited. See Claiborne, supra note 82, at 33 (discussing the limitations on the domain of the code; for example, in considering a risk of fire, it may be outside of the scope of the building code to regulate the provision of fire services, or even the source of ignition of fire, such as by use of cigarette lighters indoors).

[151] See, e.g., Circo, supra note 139, at 753-54 (noting that most jurisdictions that have enacted mandatory green building standards have primarily applied the mandates to "public projects and those that use public funds," rather than the private sector).

[152] Id.

[153] Ctr. for Hous. Policy, Expedite Permitting: Overview, http://www.housingpolicy.org/toolbox/strategy/policies/expedite_permitting.html (last visited May 30, 2009).

[154] See, e.g., Haw. Rev. Stat. § 46-19.6 (Supp. 2007) (requiring counties to give priority application processing for projects that achieve LEED Silver or equivalent).

[155] See, e.g., Santa Monica, Cal., Mun. Code § 8.108.050 (2008), http://www.qcode.us/codes/santamonica/index.php?topic=8-8_108-8_108_050 (last visited May 30, 2009) (expedited permitting for registration with LEED for New Construction, LEED for Homes, and LEED for Core and Shell); D.C. Code § 6-1451.06(a) (Supp. 2009) (establishing the "Green Building Expedited Construction Documents Review Program"); Gainesville, Fla., Code of Ordinances ch. 6, art. I.5, § 6-11 to -12 (2008), http://www.municode.com/resources/gateway.asp?pid=10819&sid=9 (last visited May 30, 2009) (describing fast-track building permit process and reduced building permit fees for private contractors who use LEED); Dallas, Tex., Code ch. 52, § 1003.1 (2008), available at http://www.dallascityhall.com/pdf/Building/Chapter52Booklet.pdf (describing expedited plan review of green building projects); Sarasota County, Fla., Res. 2006-174 (Aug. 22, 2006), available at https://building.scgov.net/OSG/Sarasota/Green%20Building/Resolution_2006-174.pdf (describing expedited application review for residential and commercial green developments).

[156] San Mateo County, Cal., Ordinance 04411 (Feb. 26, 2008), available at http://www.co.sanmateo.ca.us/vgn/images/portal/cit_609/9/47/1243662796green%20building%20ordinance.pdf (adding Chapter 14 to the San Mateo County Code).

[157] See, e.g., S.B. 543, 48th Leg., 1st Sess. (N.M. 2007), http://legis.state.nm.us/Sessions/07%20Regular/bills/senate/SB0543.html (last visited May 30, 2009) (sustainable building tax credit for LEED for New Construction, Existing Buildings, Core and Shell, Commercial Interiors, and Homes; the amount of the credit depends on the LEED level achieved); Baltimore County, Md., Code art. 11, § 11-2-203.2 (2008), http://www.amlegal.com/nxt/gateway.dll/Maryland/baltimore_co/baltimorecountycode?f=templates$fn=default.htm$3.0$vid=amlegal:baltimoreco_md (last visited May 30, 2009) (3 year tax credit for LEED Silver certified residential construction on a sliding scale, depending on the achieved certification level, and a 10 year tax credit for commercial construction); Montgomery County, Md., Code ch. 52, § 52-18Q (2008), http://www.amlegal.com/nxt/gateway.dll?f=templates&fn=default.htm&vid=amlegal:montgomeryco_md_mc (last visited May 30, 2009) (describing property tax credits for buildings that achieve LEED Silver, Gold and Platinum, or their equivalents: buildings over 10,000 square feet that earn LEED for New Construction or LEED for Core and Shell certification receive five year tax credits of 25% for achieving Gold and 75% for Platinum; buildings less than 10,000 square feet that earn LEED for New Construction or LEED for Core and Shell certification receive five year tax credits of 25% for achieving Silver, 50% for Gold, and 75% for Platinum; buildings over 10,000 square feet that earn LEED for Existing Buildings certification receive three year tax credits of 10% for achieving Gold and 50% for Platinum; buildings less than 10,000 square feet that earn LEED for Existing Buildings certification receive three year tax credits of 10% for achieving Silver, 25% for Gold, and 50% for Platinum); Cincinnati, Ohio, Ordinance 446-2007 (Dec. 12, 2007), available at http://city-egov.cincinnati-oh.gov/Webtop/ws/council/public/child/Blob/21605.pdf?rpp=-10&m=2&w=doc_no%3D%27200701240%27 (property tax exemption for LEED certified commercial or residential properties). Harris County, Texas adopted guidelines for providing partial tax abatement for costs incurred in the green certification process. Harris County Comm'rs Court, Guidelines & Criteria for Granting Tax Abatement in a Reinvestment Zone Created in Harris County 6 (2008), available at http://www.co.harris.tx.us/CmpDocuments/103/Economic%20Development/2008-05-20%20Approved%20Tax%20Abatement%20Guidelines.pdf.

[158] N.Y. Tax Law § 19(a) (McKinney 2008).

[159] Id. § 19(a)(2)-(7).

[160] N.Y. Comp. Codes R. & Regs. tit. 6, §§ 638.1-638.14 (2008), http://www.dec.ny.gov/regs/4475.html#17896 (last visited May 30, 2009).

[161] N.M. Stat. § 7-2-18.19(A) (Supp. 2008).

[162] Cincinnati, Ohio, Ordinance 446-2007 (Dec. 12, 2007), available at http://city-egov.cincinnati-oh.gov/Webtop/ws/council/public/child/Blob/21605.pdf?rpp=-10&m=2&w=doc_no%3D%27200701240%27.

[163] See id.

[164] Id.

[165] See Laura Baverman, City's Green-Building Effort Waiting to Bloom, Bus. Courier Cincinnati, May 12, 2006, http://cincinnati.bizjournals.com/cincinnati/stories/2006/05/15/story1.html (last visited May 30, 2009) (Environmental concerns have "made green building not just a trend but a standard. . . . The health benefits of working and living in a sustainable environment are no longer just theory. . . . But the biggest benefit local leaders see is the potential to reverse declining population and job trends.); Cincinnati, Ohio, Ordinance 182-2007 (May 16, 2007), available at http://city-egov.cincinnati-oh.gov/Webtop/ws/council/public/child/Blob/20406.pdf?rpp=-10&m=2&w=doc_no%3D'200700567'.

[166] Cincinnati, Ohio, Ordinance 446-2007 (Dec. 12, 2007), available at http://city-egov.cincinnati-oh.gov/Webtop/ws/council/public/child/Blob/21605.pdf?rpp=-10&m=2&w=doc_no%3D%27200701240%27.

[167] Id.

[168] Cincinnati, Ohio, Ordinance 182-2007 (May 16, 2007), available at http://city-egov.cincinnati-oh.gov/Webtop/ws/council/public/child/Blob/20406.pdf?rpp=-10&m=2&w=doc_no%3D'200700567'.

[169] For instance, the Texas LoanSTAR Program is a revolving loan program aimed at encouraging energy efficiency in building design, construction, and use. See Tex. State Energy Conservation Office, LoanSTAR Revolving Loan Program, http://www.seco.cpa.state.tx.us/ls.htm (last visited May 30, 2009).

[170] See, e.g., City Manager, City of Pasadena, Green Building Ordinance and Program Agenda Report 10 (2005), available at http://cityofpasadena.net/councilagendas/2005%20agendas/Dec_19_05/5A1.pdf (Pasadena, California offers grants to private developers of $15,000 for LEED Certified, $20,000 for Silver, $25,000 for Gold, and $30,000 for Platinum); City of Santa Monica, Energy & Green Building Programs, The Santa Monica Green Building LEED Grant Program 1 (2008), available at http://greenbuildings.santa-monica.org/pdf/LEED-Grant-info-sheet.pdf (Santa Monica, California provides grants to private developers starting at $20,000 for LEED Certified, and increasing in $5000 increments to $35,000 for LEED Platinum); King County Dep't of Dev. & Envtl. Servs., Green Building & Low Impact Development 4 (2008), available at http://your.kingcounty.gov/ddes/acrobat/cib/55.pdf (King County, Washington offers grants from $15,000 to $30,000 depending on the LEED performance level); Memorandum from Craig Perkins, Dir. of Env't & Pub. Works Mgmt., to the Mayor and City Council of the City of Santa Monica (Feb. 12, 2008), http://www01.smgov.net/cityclerk/council/agendas/2008/20080212/s2008021207-B.htm (last visited May 30, 2009) (Santa Monica also provides grants for homes ranging from $2000 to $3500 for multi-family projects and from $3000 to $8000 for single family homes).

[171] See Circo, supra note 139, at 756-57 (discussing the variety of state and local incentives benefiting developers, builders, and owners).

[172] Miami Lakes, Fla., Ordinance 07-92 (July 10, 2007), available at http://webform.townofmiamilakes.com/public/Ordinances/ORD%2007-92.pdf.

[173] See, e.g., Anchorage, Alaska, Ordinance AO 2008-93 (Aug. 12, 2008), available at http://www.muni.org/iceimages/Assembly2/ao2008-093.pdf%20 (permit fee refunds on both the expedited fee and building permitting fees, the size of which depends on the level of certification sought); Chandler, Ariz., Res. 4199, Exhibit A, at 4-5, 9-11 (June 26, 2008), available at http://www.chandleraz.gov/Content/20080626_15.pdf (including fee reimbursement based on LEED certification levels, and also providing expedited plan review for private developments that register with the intent to certify at LEED Silver or better); Miami Lakes, Fla., Ordinance 07-92 (July 10, 2007), available at http://webform.townofmiamilakes.com/public/Ordinances/ORD%2007-92.pdf (reduced permitting fees for commercial applicants that comply with LEED NC, LEED CS, LEED for commercial interiors (LEED-CI), LEED EB, and LEED for Schools); Sarasota County, Fla., Res. 2005-048 (Mar. 15, 2005), available at http://www.scgov.net/Sustainability/documents/GreenBldg2005048.pdf (50% reduction in building permit fees for using LEED); New Albany, Ohio, Ordinance O-34-2008, Exhibit A, at 3-4 (Oct. 21, 2008) available at https://www.usgbc.org/ShowFile.aspx?DocumentID=5021 (green building incentive program for new commercial buildings that awards reductions from building permits fees based on the level of LEED certification); Dep't of Zoning & Planning, Borough of Doylestown, "Green Points" Green Building Incentive Program 1 (2007), available at http://doylestownborough.net/greenpoints%20schedule.pdf (Doylestown Borough, Pennsylvania provides a substantial reduction in building permit fees for commercial and residential construction, additions, and interior remodels with additional reductions for projects that achieve LEED Silver certification or better).

[174] Eagle County, Colo., Land Use Reg. art. 4, §§ 4-810, -910, (2008), available at http://www.eaglecounty.us/uploadedFiles/commDev/Planning/Article%204%20-%20Site%20Development%20Standards(2).pdf.

[175] Id. §§ 4-820, -920.

[176] Id. §§ 4-820, -840.

[177] See, e.g., Acton, Mass., Zoning Bylaws § 5.5B.2.2.d (2005) (density bonus for buildings achieving LEED certification in the East Acton Village District); Bar Harbor, Me., Mun. Code § 125-69M(6)(2)(d) (2008), http://www.ecode360.com/ecode3-back/getSimple.jsp?custId=BA1953&guid=8375391 (last visited May 30, 2009) (density bonus for PUD projects in which all dwelling units meet LEED standards); Portsmouth, N.H., Zoning Ordinance art. 3, § 10-301(F)(2) (2009) (FAR bonus for private LEED certified projects); Cranford, N.J., Ordinance 2005-46 (Nov. 15, 2005) (awarding green certification with "a slightly larger building than would normally be allowed"); Pittsburgh, Penn., Ordinance 2006-0540 (Dec. 19, 2007) (projects that earn LEED NC or LEED CS certification are entitled to a density bonus of an additional 20% FAR and a variance on 20% of applicable height restrictions); U.S. Green Bldg. Council, LEED Initiatives in Governments and Schools 34-35 (2009) (citing Kearny, N.J., Ordinance 54 (Sept. 11, 2007), which provides density bonuses to private redevelopment projects that earn LEED certification, depending on the level of certification achieved).

[178] Arlington, Va., Environmental Services: Green Building Incentive Program, http://www.arlingtonva.us/Departments/EnvironmentalServices/epo/EnvironmentalServicesEpoIncentiveProgram.aspx (last visited May 30, 2009) (allowing FAR bonuses up to 0.50 for proposals that meet a minimum LEED certified status); Arlington County, Va., Zoning Ordinance § 36.H.7.b (2009), available at http://www.arlingtonva.us/departments/CPHD/planning/zoning/pdfs/Ordinance_Section36.pdf (allowing additional height for proposals that meet a minimum LEED certified status).

[179] West Hollywood, Cal., Ordinance 07-762 § 6 (July 16, 2007), available at http://www.weho.org/media/File/GreenbuildingOrdinance.pdf.

[180] The federal commitment, which has resulted in LEED rating of buildings managed by the National Park Service, National Aeronautics and Space Administration, Department of State, Department of Energy, and others, has been advanced somewhat by executive order. See Exec. Order No. 13,423, 72 Fed. Reg. 3919 (Jan. 26, 2007); Jesse W. Abair, Green Buildings: What It Means to Be "Green" and the Evolution of Green Building Laws, 40 Urb. Law. 623, 626 (2008).

[181] Ariz. Exec. Order No. 2005-05 (Feb. 11, 2005), available at http://www.lib.az.us/is/state/eo/2005-05.pdf (LEED Silver certification and incorporation of renewable energy for state-funded buildings); Cal. Exec. Order No. S-20-04 (July 27, 2004), http://www.dot.ca.gov/hq/energy/ExecOrderS-20-04.htm (last visited May 30, 2009) (all state-owned facilities must meet LEED Silver standards); Fla. Stat. Ann. §§ 255.251-.2575 (West Supp. 2009) (requires state building construction and renovation to follow LEED or other green rating guidelines; requires public construction by counties, municipalities, school districts, water management districts, state universities, community colleges, and state courts to follow green guidelines); Mass. Exec. Order No. 484 (Apr. 18, 2007), available at http://www.mass.gov/Agov3/docs/Executive%20Orders/Leading%20by%20Example%20EO.pdf (requiring LEED certification for construction and major renovation projects over 20,000 square feet).

[182] See, e.g., Anchorage, Ala., Mun. Code § 23.05.050(A) (2008), http://www.municode.com/resources/gateway.asp?pid=12717&sid=2 (last visited May 30, 2009) (requires LEED certification for all new municipal buildings, increasing to LEED Silver in 2012); Brisbane, Cal., Mun. Code § 15.80.040 (2008), http://www.ci.brisbane.ca.us/municode/_DATA/TITLE15/Chapter_15_80_GREEN_BUILDING_R.html (last visited May 30, 2009) (requires LEED Silver certification for certain municipal and commercial construction); Livermore, Cal., Mun. Code § 15.74.040 (2004), available at http://www.ci.livermore.ca.us/CDD/green_building/documents/CivicGreenBuildingOrdinance.pdf (requires that all city buildings meet LEED Silver certification); Pasadena, Cal., Mun. Code § 14.90.050 (2008), http://www.municode.com/Resources/gateway.asp?pid=16551&sid=5 (last visited May 30, 2009) (requires LEED Silver certification for all new municipal buildings and all municipal renovations over 15,000 square feet, and requires LEED certification for certain new commercial and residential construction); Atlanta, Ga., Code of Ordinances § 75-19 (2008), http://www.municode.com/resources/gateway.asp?pid=10376&sid=10 (last visited May 30, 2009) (requires LEED Silver certification for certain city-funded projects); City and County of Honolulu, Haw., Rev. Ordinances § 2-9.3 (1990), available at http://www.co.honolulu.hi.us/refs/roh/s/2.doc (requires LEED Silver for city facilities over 5000 square feet); Arlington, Mass., Town Bylaws, tit. 1, art. 16, § 4 (2008), http://www.town.arlington.ma.us/Public_Documents/ArlingtonMA_TownBylaws/title1?textPage=1#article16 (last visited May 30, 2009) (requires LEED Silver for new buildings and renovations); Kansas City, Mo., Code of Ordinances § 2-1604 (2009), http://www.municode.com/resources/gateway.asp?sid=25&pid=10156 (last visited May 30, 2009) (requires all new municipal buildings over 5000 square feet to earn LEED Silver certification); Chapel Hill, N.C., Code of Ordinances ch. 5, art. VII, §§ 5-122, -123 (2007), http://www.municode.com/resources/gateway.asp?sid=33&pid=19952 (last visited May 30, 2009) (requires LEED Silver certification for construction of municipal buildings over 5000 square feet.); Everett, Wash., Mun. Code § 16.13.030 (2008), available at, http://srch.mrsc.org:8080/code/template.htm;jsessionid=5E3E29A936D04ADB5EAD690CF9984D37?view=main (last visited May 30, 2009) (requires new buildings 5000 square feet or larger to meet LEED Silver in all new city capital improvement projects unless not practicable or appropriate); Flagstaff, Ariz., Res. 2008-32 (June 3, 2008) (requires LEED Silver certification for municipal buildings); Oro Valley, Ariz., Res. 07-94 (Aug. 14, 2007) (requires LEED Silver guidelines for all new town buildings and additions, and further imparts an aspirational directive to achieve LEED Gold or LEED Platinum where feasible); Scottsdale, Ariz., Res. 6644 (Mar. 22, 2005) (all new city buildings required to meet LEED Gold); Fayetteville, Ark., Res. 176-07 (Oct. 2, 2007) (requires city-owned facilities greater than 5000 square feet to achieve a minimum of LEED Silver certification); Berkeley, Cal., Res. 62,284-N.S. (Nov. 18, 2003) (requires certain municipal buildings to meet LEED Silver guidelines); Temecula, Cal., Res. 08-74 (July 22, 2008) (requires all municipal buildings and additions to be LEED certified); Fort Collins, Colo., Res. 2006-096 (Sept. 5, 2006) (requires LEED Gold certification for new municipal buildings over 5000 square feet, with some exceptions); Greensburg, Kan., Res. 2007-17 (Dec. 17, 2007) (requires LEED Platinum certification for city-owned buildings greater than 4000 square feet); Bowie, Md., Res. R-15-03 (Feb 3, 2003) (requires all municipal projects to follow green building criteria and to use LEED guidelines); Gaithersburg, Md., Res. R-33-07 (Apr. 16, 2008) (requires LEED Silver certification for new municipal construction); Syracuse, N.Y., Gen. Ordinance 36 (Sept. 10, 2007) (new municipal construction and major renovations required to meet LEED Silver); N.Y., N.Y., Local Law No. 86 (2005) (LEED Silver certification required for municipal construction over $2 million); Austin, Tex., Res. 000608-43 (June 8, 2000) (requires all city buildings to earn a minimum of LEED Silver certification); Bellingham, Wash., Res. 2005-21 (May 9, 2005) (requires city buildings over 5000 square feet to achieve LEED Silver certification where feasible); King County, Wash., Ordinance 15118 (Feb. 7, 2005) (requires LEED certification for capital facilities construction); Madison, Wis., Res. 08-00109 (Jan. 22, 2008) (requires LEED Silver certification for municipal buildings over 5000 square feet).

[183] This interesting, but not particularly surprising, trend converges with the notion that governments should monitor, if not influence, markets that directly affect public welfare issues. See, e.g., Sarah van Gelder, Environmental Ethics, in Reshaping the Built Environment: Ecology, Ethics, and Economics, supra note 98, at 54, 63 ("[A] critical role of government is to help ensure that the market signal is right, that the environmental and social costs of producing and distributing a product are included in the price we pay at the cash register, that these costs are not externalized, forcing someone else, now or in the future, to pay.").

[184] Anchorage, Alaska, Ordinance 2008-93 (Aug. 12, 2008), available at http://www.muni.org/iceimages/Assembly2/ao2008-093.pdf%20. See also Greensburg, Kan., Res. 2007-17 (Dec. 17, 2007) ("[I]t is the goal of the City of Greensburg, Kansas . . . to be a model community based on the principles of economic, environmental, and cultural sustainability"); Syracuse, N.Y., Gen. Ordinance 36 (Sept. 10, 2007) ("[M]unicipal government should assume the role of leadership role in promoting the efficient use of natural resources providing for the long-term protection and enhancement of our environment, our economy and the health of our citizens and future generations . . . ."); Asheville, N.C., Res. 07-91 (Apr. 24, 2007) (because the City "has a fiscal and social responsibility to conserve natural resources and understands the direct connection between environmental protection, economic development and local/regional quality of life," the City will "take a leadership role" in green building).

[185] Wash. Exec. Order No. 05-01 (Jan. 5, 2005), available at http://www.governor.wa.gov/execorders/eoarchive/eo_05-01.pdf (establishing "Sustainability and Efficiency Goals for State Operations").

[186] Asheville, N.C., Res. 07-91, § 1 (Apr. 24, 2007).

[187] Id. § 2.

[188] Id. § 3.

[189] San Antonio, Tex., Res. 1208 (Apr. 19, 2007), available at http://chapters.usgbc.org/centraltexas/Docs/pdf/COSA_GBR.pdf.

[190] See, e.g., Oakland, Cal., Mun. Code § 15.35.040 (2008), http://bpc.iserver.net/codes/oakland/ (last visited May 30, 2009) (requiring LEED silver rating for new construction and renovations of city owned or occupied structures where construction costs total three million dollars or more); S.F., Cal., Env't Code § 707(e) (2008), available at http://ia311226.us.archive.org/2/items/gov.ca.sf.environment/ca_sf_environment.pdf (requiring LEED silver certification for projects of 5000 square feet or more); Atlanta, Ga., Code of Ordinances § 75-19(c) (2009), http://www.municode.com/Resources/gateway.asp?pid=10376&sid=10 (last visited May 30, 2009) (requiring LEED Silver rating levels for design and management plans of new construction or renovations of facilities over 5000 gross square feet or exceeding two million dollars in total project costs); N.Y., N.Y., City Charter ch. 9, § 224.1(b) (2009), http://24.97.137.100/nyc/charter/entered.htm (last visited May 30, 2009) (requiring LEED green rating for capital projects with estimated construction costs of two million dollars or more involving new building, additions, or substantial reconstruction).

[191] Nashville & Davidson County, Tenn., Code § 16.60.050, .070 (2008), available at http://www.municode.com/resources/gateway.asp?pid=14214&sid=42.

[192] See Plano, Tex., City's LEED Policy, http://www.plano.gov/Departments/Environmental%20Services/GreenLiving/buildings/Pages/4policy.aspx (last visited May 30, 2009).

[193] Charles R. Smith, Jr., High-Performance Building Envelopes: High-Performance Straw Bale, Envtl. Design & Construction, May 1, 2007, http://www.edcmag.com/Articles/Featured_Special_Sections/BNP_GUID_9-5-2006_A_10000000000000095483 (last visited May 30, 2009).

[194] Id.

[195] Id.

[196] See id. (describing how informing the various project participants about sustainable building from the beginning helped ensure a sustainable design).

[197] Id. One member of the design team explains the reasoning behind using straw-bale construction:

Materials were selected based on renewable/recycled content, locality, low toxicity, durability and ease of maintenance.

Incorporating straw-bale construction brings a fresh use to a method of construction largely relegated to residential development. A readily available, renewable and local agricultural waste product that may have gone into a landfill or been burned - creating particulate pollution - has been used as a valuable construction material. Straw-bale construction is highly energy efficient, promotes good indoor environmental quality (contains no VOCs or other toxic compounds), is biodegradable and cost-effective.

Id.

[198] Id.

[199] Id.

[200] Id.

[201] See supra Part III.A.

[202] See, e.g., Oakland, Cal., Mun. Code § 15.35.046 (2008), http://bpc.iserver.net/codes/oakland/ (last visited May 30, 2009) (free technical assistance); Chandler, Ariz., Res. 4199, Exhibit A, at 12 (June 26, 2008), available at http://www.chandleraz.gov/Content/20080626_15.pdf (staff will direct developers and homeowners to appropriate sources for green building advice); Issaquah, Wash., Res. 2004-11, Attachment A, at 6 (Dec. 21, 2004), available at http://www.usgbc.org/ShowFile.aspx?DocumentID=1982 (free consultation).

[203] See Issaquah, Wash., Res. 2004-11, Attachment A, at 6-7 (Dec. 21, 2004), available at http://www.usgbc.org/ShowFile.aspx?DocumentID=1982.

[204] Frisco, Tex., Ordinance 06-10-110, Exhibit A (Oct. 17, 2006), available at http://documents.friscotexas.gov/weblink/index.asp?DocumentID=47966&FolderID=47785&SearchHandle=0&DocViewType=ShowImage&LeftPaneType=Hidden&dbid=0&page=1.

[205] See King County Solid Waste Div., Green Building and Sustainable Development Ordinance, http://www.metrokc.gov/dnrp/swd/greenbuilding/program/ordinance.asp (last visited May 30, 2009).

[206] Oakland, Cal., Mun. Code § 15.35.046 (2008), http://bpc.iserver.net/codes/oakland/ (last visited May 30, 2009).

[207] Sara Bronin provides a less optimistic analysis of the promise and potential of local governments in furthering sustainability. See Sara C. Bronin, The Quiet Revolution Revived: Sustainable Design, Land Use Regulation, and the States, 93 Minn. L. Rev. 231, 259 (2008) ("Despite examples of successful local reform, very few localities have taken steps to amend existing laws or to create new laws which address green building. Institutional inertia serves as a key obstacle: simply put, local government officials resist change."). The difference between Bronin's analysis and that offered in this Article may be based on a divergence in how we measure success. This Article assumes that a movement that is able to face an adverse presumption and capture even a minority market share in construction and building sales, as well as the attention of consumers, materials producers and state and local legislators, is worthy of attention; Bronin appears to defer judgment until green building is either universally mandated or constitutes a majority of building construction. See id. at 249-50.

[208] USGBC estimates that its membership has more than quadrupled since 2000. See U.S. Green Bldg. Council, Green Building by the Numbers 1 (2009), available at http://www.usgbc.org/ShowFile.aspx?DocumentID=3340. In 2008, USBGC reported that LEED workshops were attended by over 90,000 people, that there were 80,000 accredited LEED professionals, and that the number of attendees at Greenbuild increased by over 5000 people between 2007 to 2008. Id. at 2. As noted above, the United States construction market (both residential and commercial) is incorporating green building principles and methods at a surprising rate. McGraw-Hill SmartMarket Report, supra note 8, at 2-3. The McGraw-Hill report further projects 5-10% of all new construction starts in 2010 will be green. Id.

[209] BDC White Paper, supra note 6, at 1.

[210] The 2006 McGraw-Hill SmartMarket Report indicates that the principal motivators for green builders were "doing the right thing" and "lowering lifecycle costs" in finished buildings. McGraw-Hill SmartMarket Report, supra note 8, at 5.

[211] See supra Part III.A (discussing prescriptive building codes).

[212] See, e.g., Bronin, supra note 207, at 251-253 (discussing conflicts between green building standards and conventional building and landscaping codes).

[213] Removing this obstacle to green building, and making it easier to implement the principles of green building, may have been the most important development in the movement. See generally Ann E. Carlson, Recycling Norms, 89 Cal. L. Rev. 1231, 1236 (2001) ("Though social norms can, and sometimes do, play a role in encouraging cooperative behavior . . . their force is limited. Instead, reducing the effort required to engage in the desired behavior can have far greater success in increasing the numbers of people who cooperate over a long period of time than efforts to intensify social norms.").

[214] Kats, supra note 118, at v.

[215] See, e.g., Cathy Turner & Mark Frankel, New Bldgs. Inst., Energy Performance of LEED for New Construction Buildings 5 (2008), available at https://www.usgbc.org/ShowFile.aspx?DocumentID=3930; Allyson Wendt, Homes Get Their Own LEED, Envtl. Building News, Dec. 2007, available at http://www.buildinggreen.com/auth/article.cfm?fileName=161205a.xml.

[216] Kats, supra note 118, at v.

[217] Broughton, supra note 77.

[218] In 2007, the U.S. Green Building Council reported a finding of an imbalance between green building investment and the extent of the problems that green building aims to resolve; federally-funded research from 2002-2004 was comprised of approximately 0.2% of all federally funded research (averaging $193 million per year). See USGBC Research Committee, U.S. Green Bldg. Council, Green Building Research Funding: An Assessment of Current Activity in the United States 5 (2007), available at http://www.usgbc.org/ShowFile.aspx?DocumentID=2465; USGBC Research Committee, U.S. Green Bldg. Council, A National Green Building Research Agenda 2 (rev. 2008), available at http://www.usgbc.org/ShowFile.aspx?DocumentID=3402.

[219] See William J. Fisk, Health and Productivity Gains from Better Indoor Environments and Their Relationship with Building Energy Efficiency, 25 Ann. Rev. Energy & Env't 537, 537-38 (2000).

[220] Id. at 560.

[221] Id. at 539-43.

[222] Id. at 545.

[223] Id. at 561.

[224] Kats, supra note 118, at v.

[225] Id. at viii. Some estimates of upfront green building costs indicate a range of 3-5% above comparable market prices for buildings meeting conventional building codes. Other assessments of green building costs describe the transition to green building as entirely benign. For instance, in July of 2007, Davis Langdon published the Cost of Green Revisited: Reexamining the Feasibility and Cost Impact of Sustainable Design in the Light of Increased Market Adoption, which is based on a review of buildings designed and constructed to implement green building methods and achieve LEED green building standards. Langdon, Cost of Green Revisited, supra note 138, at 4. The sample relied upon was comprised in large part of public buildings (academic buildings, laboratories, libraries, community centers, ambulatory care facilities), which might not have been available without the above-mentioned leadership by state and local governments. The Davis Langdon report compared green buildings versus comparable non-green buildings based on three elements of project management: the cost attributable to green-specific standards of construction, the costs of green buildings compared to similar non-green buildings, and the ability of green projects to meet budgetary expectations. Id. at 3. The conclusions favor green buildings: "there is no significant difference in average costs for green buildings as compared to non-green buildings." Id.

[226] See Kats, supra note 118, at 13.

[227] See BDC White Paper, supra note 6, at 10-15 (discussing the transition in the financial sector towards seeing the "new reality"). Of course, the development of green building should be distinguished from free-market environmentalism. As Barton Thompson states, "[t]he principal purpose of [regulatory] markets is to reduce the cost of environmental regulation by providing the regulated community with greater flexibility." Barton H. Thompson, Jr., Markets for Nature, 25 Wm. & Mary Envtl. L. & Pol'y Rev. 261, 262 (2000). In the case of green building, while it is clear that market factors influenced the direction and speed of success in the movement, the intended direction of green building codes is not towards a free market in building codes. See generally BDC White Paper, supra note 6, at 10-15 (providing examples of the financial community's involvement in the development of green building).

[228] BDC White Paper, supra note 6, at 5 (emphasis added). In a survey by Jones Lang LaSalle, it was reported that

70% of survey respondents globally stated that they were prepared to pay a premium rental for sustainable real estate, 62% that this premium would be in the region of 1-10% more, and a further 8% stating that they would be prepared to pay a double digit premium for appropriate, sustainable solutions. In contrast, and critically, a quarter of respondents maintained that they were not prepared to pay any more for a sustainable solution, irrespective of their views on the costs of delivering such product to the market.

Jones Lang LaSalle, Global Trends in Sustainable Real Estate: An Occupier's Perspective 5 (2008), available at http://www.joneslanglasalle.com/ResearchLevel1/Global_Trends_in_Sustainable_Real_Estate_-_Feb_2008_EN.pdf.

[229] Surely this cannot last forever. Indeed, there are a handful of cases proceeding that involve (to varying degrees) green building laws or green buildings. See, e.g., Air Conditioning, Heating & Refrigeration Inst. v. City of Albuquerque, Civ. No. 08-633 MV/RLP (D.N.M. Oct. 3, 2008), available at http://www.nmcourt.fed.us/Drs-Web/view-file?full-path-file-name=%2Fdata%2Fdrs%2Fdm%2Fdocuments%2Fcadd%2F2008%2F10%2F03%2F0001884303-0000000000-08cv00633.pdf (seeking to enjoin enforcement of City of Albuquerque's green building code based on the federal preemption of energy standards in certain heating, ventilating, air conditioning, and water heating products). See also Counter-Complaint at 4, S. Builders, Inc. v. Shaw Dev., L.L.C., No. 19-C-07-011405 (Md. Cir. Ct. filed Jan. 16, 2007), available at http://www.greenbuildinglawupdate.com/uploads/file/Southern%20Builders%20v_%20Shaw%20Development.pdf (alleging negligence and breach of contract in a complaint against builders after the building failed to meet LEED standards that would have resulted in state tax credits). Also, it might be interesting to note that while the greenness of a building may provide some mitigation to health and environmental impacts, green buildings will not be immune from "not in my backyard" suits as a matter of mere virtue. See, e.g., Aaron Boyd, Neighbors File Article 78 Against 132 North Main Project; Claim Review Process Flawed, Hamptons.com, Feb. 3, 2009, http://www.hamptons.com/detail.ihtml?id=6270&apid=12801&sid=35&cid=133&hm=0&iv=0&townflag= (last visited May 30, 2009) (detailing a lawsuit filed over the approval of a commercial building which obtained LEED certification, but that neighbors alleged would tarnish the neighborhood).

[230] Jeff Witt, AICP, who manages the green building program in Frisco, Texas, took some humor at my inquiry into any voiced objections to Frisco's green building laws. Frisco's program, which relies on EnergyStar Compliance, was developed as a collaborative effort among builders, engineers, politicians, and agency personnel, and initially required all subdivisions platted after 2003 to comply with green requirements. Telephone Interview with Jeff Witt, Comprehensive & Envtl. Admin., City of Frisco, in Frisco, Tex. (Jan. 31, 2008). According to Mr. Witt, the only challenge from the building industry came from one builder who did not participate in the development of Frisco's program, and reportedly objected only on principle; after having secured an exemption from the program requirements, the objector then built to green standards anyway. Id.

[231] The early success of green buildings also suggests that what is important is that "green building" is not merely an extension of the informational approach seen in other environmental laws. In making this distinction, it seems reasonable to recognize that the administration of environmental regulations has been open to criticism as an opportunity to politicize the scientific process of inquiry and the value of scientific insights in the policy making and regulatory process. See, e.g., Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 Colum. L. Rev. 1613, 1617 (1995) (asserting that agencies disguise controversial policy decisions as science). This is a consequence of the design of environmental regulations, which are in large part built upon a need for environmental information as an essential element of the prima facie case for entitlement. Alyson Flournoy suggests that certain informational environmental regulations can be classified as either "information demand" or "information supply" regulations: demand regulations rely on an agency's consideration of information, either as a procedural step or to apply a particular substantive standard in environmental decision making; supply regulations, on the other hand, relate more specifically to the submission of information for consideration in the regulatory process. Alyson C. Flournoy, Supply, Demand, and Consequences: The Impact of Information Flow on Individual Permitting Decisions Under Section 404 of the Clean Water Act, 83 Ind. L.J. 537, 558-61 (2008). Flournoy argues that one defect in informational regulations is discretion, where agencies may be relatively unchecked if inclined to permit actions that cause otherwise unacceptable environmental degradation. Id. at 570-71. The critique leveled by Wendy Wagner, who argues that the informational process of environmental laws is a charade, seems to converge with Flournoy's by suggesting that an explanation for the correlation between discretion and environmental degradation is found in the manner in which information is used in the regulatory process: where control of information is causally linked to entitlement in the permitting process, all parties have an incentive to distort, mischaracterize, and even short-shrift the information gathered in a competitive process in which the control of information arguably determines the plausibility of our values. See Wendy E. Wagner, Commons Ignorance: The Failure of Environmental Law to Produce Needed Information on Health and the Environment, 53 Duke L.J. 1619, 1691-95 (2004).

Green building laws are distinguishable from the place and purpose of information in this description of environmental regulations. Of course, green building laws often employ both information supply and demand schemes, largely made necessary by the shift to performance, rather than prescriptive, codes to accommodate innovative building practices. See generally supra notes 86-91 and accompanying text (describing performance and prescriptive codes). However, at least in the early efforts, green building laws did not construct a regulatory process in which the informational contingencies determine the policies at issue. See generally supra Part III.A.1 (describing the historical lack of information on green building). That is, in green building, in a manner contrary to other environmental laws, information itself has not been the battleground.

[232] Abair, supra note 180, at 632.

[233] See Raymond J. Cole, Environmental Performance of Buildings: Setting Goals, Offering Guidance, and Assessing Programs, in Reshaping the Built Environment: Ecology, Ethics, and Economics, supra note 98, at 276, 292.

[234] Id.

[235] It should be noted that although the evolution in this regard is industry wide, the International Code Council (ICC) took a bit more time in the project of adopting more stringent energy standards for some time and has recognized that much of the current conventional building codes is already or can be adopted to incorporate green standards. See generally Bilka, supra note 28, at 7 ("Some green and sustainable principles have direct impact on or virtually duplicate existing code provisions. In such cases, the greening of the codes may simply be a matter of raising the bars which are already in place in the codes."). Notably, however, local governments have driven into the heart of green building ideas with or without the guidance of the ICC. See generally id. at 2 (noting that "a handful of local jurisdictions have developed their own green building criteria or rating systems"). On January 29, 2009, the American National Standards Institute (ANSI) approved ICC-700, called the "National Green Building Standard," in a joint effort of the ICC and NAHB. See National Green Building Standard ICC-700 Approved, HousingZone.com, Feb. 3, 2009, http://www.housingzone.com/article/CA6634369.html (last visited May 30, 2009); Press Release, Nat'l Ass'n of Home Builders, NAHB Applauds ANSI Approval of National Green Building Standard (Jan. 29, 2009), http://www.nahb.org/news_details.aspx?sectionID=0&newsID=8533 (last visited May 30, 2009). The National Green Building Standard is the first rating system to be approved by ANSI. Id.

[236] Although virtually all of these mandatory programs contain enforcement mechanisms or are made subject to existing building code enforcement, there seems to be little experience at this point in exercising such authority. See Bilka, supra note 28, at 3.

[237] For instance, Montgomery County, Maryland enacted Green Building legislation on November 28, 2006. Montgomery County, Md., Bill No. 17-06 (Nov. 28, 2006), available at http://www.montgomerycountymd.gov/content/council/pdf/SCANNED_DOCS/20061128_17-06.pdf. The county's program applies through all zoning designations and to all new covered buildings exceeding 10,000 square feet, as well as significant structural modifications to such buildings. Id. Construction of public buildings must meet LEED Silver Certifications, and private buildings are required to be LEED certified, with some exceptions. Id. Apparently, to avoid antitrust and nondelegation issues, the legislation vests the county's permitting agency with both approval authority and waiver powers. See also Gaithersburg, Md., Ordinance O-11-08 (Sept. 15, 2008) (requiring LEED certification for all buildings equal to or larger than 10,000 square feet, and LEED Silver certification for buildings larger than 99,999 square feet).

[238] In several of the programs in which a local, independent rating system has been adopted, applicants are offered the ability to substitute compliance with LEED certification. See, e.g., West Hollywood, Cal., Ordinance 07-762, § 6 (July 16, 2007), available at http://www.weho.org/media/File/GreenbuildingOrdinance.pdf.

[239] For example, the City of Novato, California currently requires all residential construction and renovation to accomplish a minimum score of "Green Building Points." See Novato, Cal., Ordinance 1503, § 4-13.3 (Sept. 27, 2005), available at http://www.ci.novato.ca.us/Modules/ShowDocument.aspx?documentid=457. Novato's system contemplates a graduating scale over time. Id. The applicable criteria are derived from a rating system known as the "New Homes Green Building Points Calculator," developed and published by the Alameda County Waste Management Authority in January, 2004. Id. § 4-13.1. It may be notable that Novato's ordinance contains no exemptions, exceptions, or variance procedures on its face. See id. Among other things, the consideration of several green rating systems in a single program may be intended to overcome the problems that might be encountered by specific designs or in specific locations, given the availability of materials, regional climate factors, and so on.

[240] In 2006, Eagle County, Colorado implemented the Eagle County Efficient Building Code (ECObuild), which purports to apply to all new residential construction and residential expansions exceeding 50% of existing square footprint, as well as nonresidential and mixed-use construction and reconstruction. Eagle County, Colo., Land Use Reg. art. 4, §§ 4-810 to -820, -910 to -920 (2008), available at http://www.eaglecounty.us/uploadedFiles/commDev/Planning/Article%204%20-%20Site%20Development%20Standards(2).pdf. ECObuild implements its own point-based rating system (encompassing prescriptions in siting, water conservation, materials, energy efficiency, renewable energy, and indoor air quality), including minimum points required for size and type of construction. Id. §§ 4-820 to -830. The prescriptive components of the ECObuild program are supplemented by financial incentives, including possible rebates of 25% (up to $5000) on permit fees as an award for high scores on the rating system, and additional 10% rebates in increments above the minimums, and in part finances these incentives by offering the opportunity to pay a fee in lieu of compliance with the minimum point requirements. See id. §§ 4-820, -920.

[241] Although "zero energy homes" are equipped to draw from the utility grid, they are intended to produce the energy needed for consumption. Memorandum from the Zero Energy Capable Homes Task Force to the Mayor and Council of the City of Austin, Tex. 1-2 (Sept. 5, 2007), available at http://www.ci.austin.tx.us/news/2007/downloads/zeh_final_report.pdf.

[242] See, e.g., LEED for Homes, supra note 29, at iv (providing a LEED building program for residential buildings).

[243] For instance, LEED for Homes will incorporate credits for implementing LEED for Neighborhood Development, which is presently in the pilot stage. See id. at 25 (Locations and Linkages); U.S. Green Building Council, LEED for Neighborhood Development, http://www.usgbc.org/DisplayPage.aspx?CMSPageID=148 (last visited May 30, 2009) ("The pilot program, which began in the summer of 2007 and tested nearly 240 projects, is wrapping up.").

[244] The City of Pleasanton, California, recently extended its experimental program to residential construction, requiring mandatory compliance with its green certification program. See Pleasanton, Cal., Ordinance 1873 (Dec. 3, 2002), available at http://www.ci.pleasanton.ca.us/pdf/greenbldg.pdf. Although Pleasanton's program also relies on the rating system developed by Alameda County's Waste Management Authority, it diverges significantly in its scope and impact. See Pleasanton, Cal., Mun. Code § 17.50.030 (2006), http://qcode.us/codes/pleasanton (last visited May 30, 2009). In contrast to Novato's ordinance, which also adopts the Alameda program, see supra note 239, Pleasanton's scheme delegates discretionary authority to the building official to award exemptions for projects for which green methods cannot be incorporated. Pleasanton, Cal., Mun. Code § 17.50.080 (2006), http://qcode.us/codes/pleasanton (last visited May 30, 2009). More importantly, Pleasanton's ordinance institutes ongoing enforcement of green building standards by requiring building review at the issuance of an occupancy permit, and then again after one year, and again after five years. Id. § 17.50.070(D); see also infra Part IV.B and note 267.

[245] See, e.g., West Hollywood, Cal., Mun. Code § 19.20.060(B)(1)(a) (2009), http://qcode.us/codes/westhollywood/view.php?topic=19-19_3-19_20-19_20_060&frames=on (last visited May 30, 2009) ("A preliminary green building plan shall be submitted as part of an application for a discretionary land use or development permit."); see also Livermore, Cal., Mun. Code § 15.76.040.A (2009), available at http://www.codepublishing.com/ca/LivermorePDF/Livermorefullcode0309.pdf (site plan, conditional use review, or design review under a downtown-specific plan).

[246] See, e.g., West Hollywood, Cal., Mun. Code § 19.20.060(B)(1)(a) (2009), http://qcode.us/codes/westhollywood/view.php?topic=19-19_3-19_20-19_20_060&frames=on (last visited May 30, 2009).

[247] Id. § 19.20.060(B)(1)(b).

[248] But see J.B. Ruhl, Cities, Green Construction and the Endangered Species Act, 27 Va. Envtl. L.J. (forthcoming 2009) (inquiring into whether green construction standards will be required as mitigation for adverse urban and development impacts to species' habitats).

[249] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370e (2000).

[250] Id. §§ 4331-32.

[251] Border Power Plant Working Group v. Dep't of Energy, 260 F. Supp. 2d 997, 1021 (S.D. Cal. 2003) (finding carbon dioxide emissions appropriate for analysis under NEPA for construction of transmission lines); Ctr. for Biological Diversity v. Nat'l Highway Traffic Safety Admin., 508 F.3d 508, 550 (9th Cir. 2007) ("The impact of greenhouse gas emissions on climate change is precisely the kind of cumulative impacts analysis that NEPA requires agencies to conduct."), vacated on other grounds, 538 F.3d 1172 (9th Cir. 2008); Natural Res. Def. Council v. Kempthorne, 506 F.Supp.2d 322, 370 (E.D. Cal. 2007) (rejecting the U.S. Fish and Wildlife Service's biological opinion for a water diversion project that relied on historical hydrological patterns, rather than considering possible hydrology changes due to impacts from climate change).

[252] See generally Daniel P. Selmi, Themes in the Evolution of the State Environmental Policy Acts, 38 Urb. Law. 949, 952 (2006) (examining state environmental policy acts (SEPAs) by identifying ten themes in the development of those laws).

[253] Mass. Gen. Laws Ann. ch. 30, §§ 61-62H (West 2001); Mass. Executive Office of Energy & Envtl. Affairs, MEPA Greenhouse Gas Emissions Policy and Protocol 1 (2007), available at http://www.mass.gov/envir/mepa/pdffiles/misc/ghgemissionspolicy.pdf; see also Madeline June Kass, Little NEPAs Take on Climate Goliath, Nat. Resources & Env't, Fall 2008, at 40, 41 (discussing the advances made in Massachusetts, California, and Washington in integrating climate change analysis into "little NEPA" procedures).

[254] See U.S. Envtl. Prot. Agency, supra note 17, at 1.

[255] Id.

[256] EPA first considered the notion of incorporating green building benefits into the remediation of contaminated properties:

Green Building/Rehabilitation of Contaminated Properties - Green Building Projects may address one or several sources of pollution generated by a building or construction project. A green building project may involve the use of green building technologies at the redevelopment of a nearby contaminated property and could include activities such as:

-          Purchase energy efficient materials/systems or low VOC emitting materials for the redeveloper;

-          Construction of a 'greywater' recycling system;

-          Provision of superior stormwater management for a redevelopment project;

-          Purchase of recycled construction materials;

-          Recycle construction or demolition waste at the site.

-          Development and implementation of large-scale integrated green design and procurement for a nearby cleanup and redevelopment project.

U.S. Envtl. Prot. Agency, Project Ideas for Potential Supplemental Environmental Projects 7-8 (2004), available at http://www.epa.gov/compliance/resources/policies/civil/seps/projectsideas42004.pdf.

[257] U.S. Envtl. Prot. Agency, supra note 17, at 4.

[258] Id.

[259] See, e.g., Tex. Water Code Ann. § 7.067 (Vernon 2008). Texas allows SEPs as voluntary mitigation efforts but does not allow a party to use an SEP to meet otherwise required environmental laws, including laws relating to remediation of violations or prior obligations incurred under a preexisting agreement with a governmental agency, and does not allow an SEP project which would directly benefit the violator (or with only limited offset of penalty). Id.; Tex. Comm'n on Envtl. Quality, Supplemental Environmental Projects (SEPs): Putting Fines to Work Closer to Home 3-4 (2009), available at http://www.tceq.state.tx.us/files/gi-352.pdf_4470808.pdf.

[260] One notable example in this trend concerns the resolution of a recent California suit filed by the state attorney general under the California Environmental Quality Act (CEQA). See Cal. Pub. Res. Code §§ 21,000-21,176 (West 2007). The County of San Bernardino prepared an Environmental Impact Report (EIR) in conjunction with its General Plan update in March of 2007. Settlement Agreement at 1, California v. County of San Bernardino, No. CIVSS 0700329 (Cal. Super. Ct. Aug. 28, 2007), available at http://ag.ca.gov/cms_pdfs/press/2007-08-21_San_Bernardino_settlement_agreement.pdf. Included in the General Plan update were goals related to improvement of air quality and human health impacts. Id. In its EIR, however, the county concluded that an in-depth study was unwarranted based on the absence of a prevailing methodology for determining the significance of environmental impacts resulting from the General Plan amendments. Id. The attorney general of California sued the county. Id. The attorney general settled with the county in an agreement that requires the county to supplement its comprehensive planning scheme with an inventory of GHG emissions, emission reduction goals, and possible mitigation measures. Id. at 2-4. Although the settlement agreement does not address green building as mitigation, the attorney general has publicly suggested that the preferred analysis could include green building standards as mitigation. See id.; Press Release, Office of the Attorney Gen., State of Cal., Brown Announces Landmark Global Warming Settlement (Aug. 21, 2007), http://ag.ca.gov/newsalerts/release.php?id=1453 (last visited May 30, 2009).

[261] See, e.g., West Hollywood, Cal., Ordinance 07-762 § 5 (July 16, 2007), available at http://www.weho.org/media/File/GreenbuildingOrdinance.pdf (recognizing that the city's green building ordinance implements specific goals in its general plan, to "ensure optimal use of scarce energy and water resources").

[262] See generally Robert W. Hahn & Robert N. Stavins, Incentive-Based Environmental Regulation: A New Era From an Old Idea?, 18 Ecology L.Q. 1, 7 (1991) (discussing various forms of incentive-based environmental policies).

[263] 260 U.S. 393, 393 (1922).

[264] Although infrequent (or, at least not out loud), there have been some grumblings in the building industry suggesting that the turn to mandatory green building schemes may be premature or unwise. See, e.g., BDC White Paper, supra note 6, at 55 (referring to mandatory green building laws as "the growing danger of 'LEED creep.'"). The objection has not yet been well articulated, but the feeling might be captured in the recognition that a mandatory scheme would effectively reallocate control over the choice of innovation, impetus, and direction of green building away from the building industry. Of course, mandatory green building laws would also be likely to neutralize any competitive advantage gained in the project experience of early green builders.

Aside from the more self-serving undertones of this reaction, it should be noted that the shift from voluntary to mandatory green building schemes could effect a shift in the social mechanisms that might support the ultimate normative success of green building. In the move from voluntary, incentive-based green building programs to mandatory green building requirements, there ought to be a searching and significant dialogue on the effect of this shift in the creation and replication of social norms. For purposes here, it might suffice to point out that the excitement demonstrated by consumers to the various voluntary programs and emerging market would lend some support to the social proof theory of norm capture. "Social proof" is a notion from social psychology that explains one manner in which we make decisions in instances of uncertainty:

We view a behavior as more correct in a given situation to the degree that we see others performing it. Whether the question is what to do with an empty popcorn box in a movie theater, how fast to drive on a certain stretch of highway, or how to eat chicken at a dinner party, the actions of those around use will be important in defining the answer.

Robert B. Cialdini, Influence: How and Why People Agree to Things 117 (1984). Even in jurisdictions where green building standards are not required of builders, it is becoming more commonplace to hear that builders cannot avoid building green: "I don't think I would build a new building right now that's not green, because in five years I may be at a competitive disadvantage." BDC White Paper, supra note 6, at 13.

[265] For instance, in some programs, certification is required not from building officials, but through the private code developers, such as the USGBC. See, e.g., Beverly Hills, Cal., Ordinance 08-O-2555 (May 14, 2008), available at http://www.beverlyhills.org/civica/filebank/blobdload.asp?BlobID=3530#page= (requiring applicants to retain a LEED certified consultant to verify compliance with the green building standards). There may be an open question about nondelegation in this context. It could be argued that expedited review and permit fee waivers allocate special privileges to green developers.

[266] Green building grants and forgivable loans might raise an understandable (even if difficult) challenge based on the constitutionality of gifts to private parties. Local government incentives in many states are burdened with constitutional prohibitions on loans or gifts to private persons or corporations. See, e.g., Wash. Const. art. VIII, § 7 (prohibiting gift of money or property or loan of credit). Of course, the use of federal funds in these assistance projects could avoid such state constitutional difficulties, but the source of federal funds will have its own requirements. For example, Community Development Block Grants are generally for community redevelopment projects, even where the projects are undertaken for communities in need by private parties. U.S. Dep't of Hous. & Urban Dev., Community Development Block Grant Program, http://www.hud.gov/offices/cpd/communitydevelopment/programs (last visited May 30, 2009). Such challenges could conceivably be brought by those builders unwilling to implement green building codes, under the suspicion that the incentives provide an unfair advantage to green builders. However, in Lloyd v. Pennsylvania Public Utility Commission, 904 A.2d 1010 (Pa. Commw. Ct. 2006), plaintiffs challenged the Sustainable Energy Fund, which is funded by a surcharge on power sold to all customers and is intended "to promote the development and use of renewable energy and clean energy technologies, energy and conservation and efficiency which promote clean energy." Id. at 1024 n.22 (quoting the "Joint Petition for Full Settlement of PPL's Restructuring Plan"). The appellant challenging the Sustainable Energy Fund alleged that the fund failed to provide demonstrable benefits to ratepayers, and that the fund was a cloaked means to finance private ventures. Id. at 1025. The court affirmed a decision of the public utility commission that the various expenditures of the fund did provide a demonstrable benefit based on several specific fund projects, including the energy savings at LEED certified public buildings, grants to the Green Building Association of Central Pennsylvania to build energy efficiency capacity, and energy management software developed with the help of the fund. Id. at 1026-27.

[267] Incentive programs might be vulnerable on several fronts. For example, density incentive programs have been subject to scrutiny on grounds that express enabling authority is needed to justify the exercise. At the same time, however, courts have been willing to find the authority in enabling acts. In Friends of Lagoon Valley v. City of Vacaville, for instance, the court approved a density bonus "higher than the maximum amount set forth in the applicable statute," finding that the expressed maximum was not a ceiling. 65 Cal. Rptr. 3d 251, 264 (Cal. Ct. App. 2007). In any event, the means by which such bonuses are secured has resulted in closer scrutiny as a method of spot or contract zoning. In Municipal Art Society v. New York, 522 N.Y.S.2d 800 (N.Y. Sup. Ct. 1987), the court invalidated a density bonus exchanged for subway improvements and cash payments, finding that:

[T]he major portion of the benefit which the purchaser is willing to pay for the right to construct a building of greater density than is permitted "as of right" is to be paid to the City to be employed for purposes other than local improvements. A proper quid pro quo for the grant of the right to increase the bulk of a building may not be the payment of additional cash into the City's coffers for citywide use.

Id. at 803-04. It certainly could be argued that density bonuses secured for developments that employ green building standards suggest a species of contract zoning. The "amenities" secured by developers employing green building practices may provide public benefits, but those benefits may not be directly related to the impacts of higher densities.

[268] See, e.g., supra note 264 (discussing the trend for builders to build green, whether or not they are required to do so). This is easily explainable by the fact that the majority of early green building laws were not regulatory; generally speaking, private action was neither required nor dictated. See, e.g., Circo, supra note 139, at 753-54. As a result, few (if any) could claim injury from the early laws. On the other hand, the early, voluntary green building laws were not (and still are not) completely immune from legal challenges. See, e.g., supra note 267 (discussing challenges to green building standards).

[269] Jeff Witt described the isolated instance of a single builder that objected to the adoption of green building standards, contested their application to his development project, and then engaged green building practices to avoid being the only one in town constructing less healthy, less durable, and more costly buildings. Telephone Interview with Jeff Witt, supra note 230.

[270] To be sure, it appears that some local governments have learned lessons from past land use regulatory models and incorporated variance and exception procedures into green building laws to avoid undue hardship claims. For instance, the green building program in Pleasanton, California allows an applicant to receive an exemption upon a showing that green compliance is a hardship or otherwise infeasible. Pleasanton, Cal., Mun. Code § 17.50.080 (2009), http://qcode.us/codes/pleasanton (last visited May 30, 2009). Applicants may be granted an exemption under adverse circumstances in the "availability of markets for materials to be recycled, availability of green building materials and technologies, and compatibility of Green Building requirements with existing building standards." Id. § 17.50.080(B); see also Rohnert Park, Cal., Mun. Code § 14.50.080 (2008), http://www.municode.com/resources/gateway.asp?pid=16586&sid=5 (last visited May 30, 2009) (infeasibility exception). As suggested above, feasibility considerations recognize the youth of green building markets and materials, locational factors, and other building-specific challenges that might be encountered. However, these measures could be characterized as being overly careful; green building codes are (at least currently) premised on the idea that flexibility is needed to foster the types of innovative thinking that will result in higher performing buildings. The green building codes, such as LEED, Build It Green, and Green Globes measure "shades of green" by weighing green attributes, but are ultimately based on a performance-based system of standards that allows builders to achieve higher green levels in ways that are appropriate to the particular project. Green goals are in mind, but how to achieve those goals is flexible. So, under the traditional takings analysis, a claim may conceivably never be ripe, at least until the claimant has exhausted the scheme and available methods of reaching the stated performance goals. In contrast, the Calabasas, California program has no variance process. See Calabasas, Cal., Ordinance 2003-185 (Jan. 7, 2004), available at http://www.cityofcalabasas.com/pdf/green-building-ordinance.pdf.

[271] Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 147 (1978) ("Even where the government prohibits a noninjurious use, the Court has ruled that a taking does not take place if the prohibition applies over a broad cross section of land and thereby 'secure[s] an average reciprocity of advantage.'" (quoting Pa. Coal Co., 260 U.S. 393, 415 (1922))); Keystone Bituminous Coal Ass'n. v. DeBenedictis, 480 U.S. 470, 491 (1987) ("While each of us is burdened somewhat by such restrictions, we, in turn, benefit greatly from the restrictions that are placed on others.").

[272] Davis, California expressly integrated human needs and standards into its consideration of conservation measures in its sustainability ordinance:

Based upon climatic conditions including the need to reduce energy use during times of peak demand (usually hot weather), to help minimize the number of rolling blackouts, and the need to mitigate the effect of further development on the City's water supply, increasing the energy efficiency and water conservation in buildings is not only "reasonably necessary," but cost-effective.

Davis, Cal., Mun. Code § 8.20.010(B) (2008), http://cityofdavis.org/cmo/citycode/detail.cfm?p=8&q=2676 (last visited May 30, 2009).

[273] Take, more generally, the question of whether there is any incentive to challenge green building laws. At least, where green buildings are mandatory, the only competitive advantage among builders in the market will be the experience gained from participating in green projects. A more experienced builder will be able to minimize costs and maximize the benefits of the project. This is likely complemented by the market advantages in the product itself. Green buildings are attracting consumers who otherwise might not be looking for new homes or even considering renovations based on preferences for older homes and homes with older features. Green building is making newer homes (and energy efficient homes) more attractive to potential purchasers. Of course, such an analysis will not account for the interests of all affected parties. For instance, the current focus on green building materials is likely to displace certain products from the market, providing some industries with a strong reason to garner opposition to green building laws.

[274] Local governments are generally authorized to adopt ordinances regulating the erection, repair, alteration, reconstruction, and use of buildings within their jurisdiction. Included in this authority is the power to adopt building codes and ordinances as a reasonable means to regulate buildings. See, e.g., LaBay v. Town of Paris, 659 A.2d 263, 266 (Me. 1995); City of Kansas City v. Jordan, 174 S.W.3d 25, 48 (Mo. Ct. App. 2005); Village of Hempstead v. SRA Realty Corp., 617 N.Y.S.2d 794, 795 (N.Y. App. Div. 1994); West Virginia ex rel. State Line Sparkler of WV, Ltd. v. Teach, 418 S.E.2d 585, 591 (W. Va. 1992). Although the police power of the state is not without limitation, it is "very broad and comprehensive, and can be exercised to promote the health, comfort, safety, and welfare of society." Bennett v. Hope, 161 S.W.2d 186, 188 (Ark. 1942) (quoting City of Helena v. Dwyer, 42 S.W. 1071 (Ark. 1897)). However, a likely challenge in states following the so-called "Dillon's Rule," under which local governments are considered mere subdivisions of the state and entirely rely on enabling legislation for their source of authority, is that green building may come under attack in states where enabling legislation has not yet been modified to encompass green building regulation. See generally Williams v. Town of Hilton Head Island, S.C., 429 S.E.2d 802, 804 (S.C. 1993) (applying and describing "Dillon's Rule").

[275] For example, in Okeson v. City of Seattle, 150 P.3d 556 (Wash. 2007), ratepayers challenged an electric utility's scheme of charging ratepayers for its GHG offset purchases. Id. at 559. Although the court found that the utility could not pass on the costs of offsets, it was not without announcing that reducing GHG emissions and avoiding climate change impacts was a governmental purpose. Id. at 558.

[276] The most significant decision in recent litigation is, of course, the Supreme Court's decision in Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007). The State of Massachusetts was joined by several states, local governments, and nonprofit organizations in challenging EPA's failure to regulate GHG emissions. Id. at 505. One of the hotly contested issues concerned the question of standing to pursue the case. See id. at 516-526. The plaintiffs submitted affidavits and relied on reports asserting a relationship between GHGs and global warming, and that sea level rise was associated with global warming. Id. at 526. The Court recognized injuries to the Massachusetts coastline and further rebuked the defendants, finding that the EPA regulation of GHG emissions from new motor vehicles would constitute an adequate remedy to confer standing. Id. at 526. The Court held:

While it may be true that regulating motor-vehicle emissions will not by itself reverse global warming, it by no means follows that we lack jurisdiction to decide whether EPA has a duty to take steps to slow or reduce it. . . . Because of the enormity of the potential consequences associated with man-made climate change, the fact that the effectiveness of a remedy might be delayed during the (relatively short) time it takes for a new motor-vehicle fleet to replace an older one is essentially irrelevant. Nor is it dispositive that developing countries such as China and India are poised to increase greenhouse gas emissions substantially over the next century: A reduction in domestic emissions would slow the pace of global emissions increases, no matter what happens elsewhere.

Id. at 525-26. The Court found that EPA was statutorily authorized to regulate GHG emissions from new automobiles, and that a determination against regulating carbon dioxide emissions from automobiles must be expressed clearly and supported. Id. at 532, 534; see generally Clean Air Act, 42 U.S.C. § 7521(a)(1) (2000) (EPA shall regulate the emission of substances which may "cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.").

[277] See, e.g., Donald C. MacIntyre, The Prior Appropriation Doctrine in Montana: Rooted in Mid-Nineteenth Century Goals-Responding to Twenty-First Century Needs, 55 Mont. L. Rev. 303, 318 (1994); David S. Caudill et al., The Politics of Legal Doctrine: A Case Study of Texas Land Use Planning Under the Shadow of Lucas, 5 Hofstra Prop. L.J. 11, 19 (1993).

[278] See Teach, 418 S.E.2d at 589 ("[E]ven in the absence of an express grant of authority, the power to punish by a pecuniary fine or penalty is implied from the delegation by the legislature of the right to enforce a particular police power through ordinances or regulations.").

[279] See, e.g., Bennett, 161 S.W.2d at 188 ("A city may regulate the construction of buildings . . . but it cannot prevent construction unless the proposed construction is per se dangerous to the public health and safety.").

[280] See Del Percio, supra note 9, at 129.

[281] This is distinguished from ordinances which require builders to post bonds to secure long-term performance, or from incentive-based ordinances, in which local governments reserve the right to reimbursement of grants and loans from construction projects that do not meet green building standards. In both of these types, the regulatory period ends and the security rests in an extraregulatory mechanism. The District of Columbia adopted an ordinance that combines incentives with insurance, requiring applicants seeking incentives to post a performance bond to ensure that construction projects properly and successfully implement green building elements. See 54 D.C. Reg. 3019. The "Green Building Act of 2006" provides that bonds shall be posted for all privately owned buildings, subject to verification of green performance within two years of occupancy, with additional bonding requirements for commercial projects seeking incentives offered in the green building program. D.C. Code §§ 6-1451.05-.06 (Supp. 2009). The difference between Washington D.C.'s bonding requirement and Pleasanton's continuing regulatory requirement is the absence in Washington D.C.'s ordinance that the two-year period is intended to demonstrate long-term performance of the green building elements of the structure. See id.; see also supra note 244 (discussing Pleasanton's regulatory regime).

[282] Pleasanton, Cal., Mun. Code § 17.50.070 (2006), available at http://qcode.us/codes/pleasanton.

[283] Id. § 17.50.070(D)(1)-(3).

[284] Id. § 17.50.070(D)(3).

[285] Id. § 17.50.070(E)(2).

[286] See, e.g., Smith, supra note 193.

[287] For instance, fire code compliance is typically subject to inspection and regulatory authority to abate violations under the police power for the lifetime of the building. The same applies to electrical, earthquake, and other codes, and even (in some cases) in habitability laws applying to landlords. In each, the condition of a structure is relevant to the public health, safety, and welfare, and where a condition causes a threat, building code enforcement is the mechanism enjoyed under the police power. See generally City of Edmonton, About Fire Rescue Services, http://www.edmonton.ca/for_residents/emergency_services/about-fire-rescue-services.aspx (last visited May 30, 2009).

[288] Of course, conventional building codes envision continuing compliance. The difference is that the issuance of a building permit for conventional codes is usually a final regulatory decision (and, in many states, triggers vested rights). In the typical enforcement scenario, after a final decision has been issued, future enforcement authority does not arise from the permitting process, but arises out of the more general police power to abate building code violations, which has traditionally been subject to scrutiny over the relationship between the violation and the impact on the violation on the public health, safety, and welfare. At least, the more dramatic of local building code abatement authorities are limited to circumstances in which buildings can be found to have caused a public nuisance. See, e.g., 6A Eugene McQuillin, The Law of Municipal Corporations § 24.74 (3d ed. 2007) (discussing a municipality's right to summarily destroy property, as determined by public necessity and emergency).

[289] J.B. Ruhl, The "Background Principles" of Natural Capital and Ecosystem Services-Did Lucas Open a Pandora's Box?, 22 J. Land Use & Envtl. L. 525, 538 (2007). I have developed this point elsewhere in Keith H. Hirokawa, Property Pieces in Compensation Statutes: Law's Eulogy for Oregon's Measure 37, 38 Envtl. L. 1111, 1164-65 (2008), but it should be noted that this point is not particularly novel. See, e.g., Kline v. 1500 Mass. Ave. Apartment Corp., 439 F.2d 477, 481 (D.C. Cir. 1970) (recognizing the duty of a landlord to use reasonable care to protect tenants from foreseeable criminal conduct due to "the conditions of modern day urban apartment living"); Hilder v. St. Peter, 478 A.2d 202, 207-08 (Vt. 1984) (creating an implied warranty of habitability and diverging from caveat lessee due to changes in the circumstances and expectations of lessees in urbanized world). It is worthwhile to note, however, that the question of the manner of evolutionary forces in property rules is open to further debate.

[290] 272 U.S. 365 (1926).

[291] Id. at 387.

[292] See John G. Sprankling, The Antiwilderness Bias in American Property Law, 63 U. Chi. L. Rev. 519, 520 (1996).

[293] E.g., Hadacheck v. Sebastian, 239 U.S. 394, 394 (1915).

[294] E.g., Euclid, 272 U.S. at 365, 387.

[295] See, e.g., Penn Cent. Transp. Co., 438 U.S. 104, 105-06 (1978).

[296] See, e.g., Tahoe-Sierra Pres. Council v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 303-04 (2002).

[297] William Cronon, The Trouble with Wilderness; or, Getting Back to the Wrong Nature, in Uncommon Ground: Toward Reinventing Nature 69, 85 (William Cronon ed., 1995).

[298] See Del Percio, supra note 9, at 127.

[299] It is telling that this recent trend in encouraging, and in some cases requiring "green building" has also been labeled "high performance building." See, e.g., Wash. Rev. Code § 39.35D.020(2) (2008) (defining "high-performance public buildings" as those built to applicable green standards). Moreover, because green building comes at a time in which duration, efficiency, and overall cost are as significant to the consumer as ever, the economic component of green building can be understood as a primary driver behind green building practices. Beyond the economics of green building as merely a marketing benefit, cost and efficiency are intertwined and inseparable from the impacts that building practices have on natural processes. In the meantime, green building should put to rest the broader question of whether pragmatism has anything to offer law, and environmental law in particular. See, e.g., Joel A. Mintz, Some Thoughts on the Merits of Pragmatism as a Guide to Environmental Protection, 31 B.C. Envtl. Aff. L. Rev. 1, 2 (2004) (questioning whether and how pragmatism can aid in formulating environmental policy).

[300] The difficulty in answering this question has largely underlain environmental rhetoric, generally without regard for the inaccessibility of any universally applicable answers. See generally Mark A. Michael, How to Interfere with Nature, 23 Envtl. Ethics 135, 154 (2001) ("[I]nstead of issuing vague admonitions to act naturally and not to interfere with nature, environmentalists would do better to examine whether and under what conditions the purposive manipulation of ecosystems and species is wrong. Interference should be left out altogether."); Robert R.M. Verchick, Steinbeck's Holism: Science, Literature, and Environmental Law, 22 Stan. Envtl. L.J. 3, 6 (2003) ("Given human connectedness with other elements of nature, it is fruitless to speak of what is 'natural' and what is not; we may never plot the boundary between these ideas.").

[301] David B. Spence, Paradox Lost: Logic, Morality, and the Foundations of Environmental Law in the 21st Century, 20 Colum. J. Envtl. L. 145, 146 (1995) ("[T]he new consensus in favor of environmental protection has changed the logic of environmental regulation.").

[302] See, e.g., National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370e (2000).

[303] At least since the publication of the "Brundtland Report," (named after Gro Brundtland, prime minister of Norway) there has been growing concern that our commercial practices and natural resource uses would lead to irreversible catastrophes and were not sustainable-where "sustainable" means development that "meets the needs of the present without compromising the ability of future generations to meet their own needs." See generally World Comm'n on Env't & Dev., Our Common Future 8 (1987).

[304] Mark Sagoff describes the initial array of environmental laws as premised on public expectations of four normative issues: compassion for the individual victim of pollution, protection of rights against the intrusion from the ill-effects of pollution, the protection of cultural values, and a sense of community that deliberates over common goals in a manner that incorporates the individual's freedoms. See Mark Sagoff, The Principles of Federal Pollution Control Law, 71 Minn. L. Rev. 19, 24-26 (1986).

[305] See John R. Nolon, In Praise of Parochialism: The Advent of Local Environmental Law, 26 Harv. Envtl. L. Rev. 365, 410 (2002) (environmental laws of the 1970s and 1980s addresses serious pollution from point sources, but today's problems include the cumulative effects from the small-scale development of land).

[306] See id. at 410-11.

[307] See id. at 386-410 (assessing the broad array of local environmental initiatives in this emerging area of law).

[308] See id.

[309] U.S. Gen. Accounting Office, Land Ownership: Information on the Acreage, Management, and Use of Federal and Other Lands (1996) ("[T]he number of acres managed . . . primarily for conservation increased . . . to about 272 million acres [by 1994].").

[310] See, e.g., Edward O. Wilson, The Future of Life 42-43 (2002) (describing the decline in forest and marine ecosystems internationally).

[311] See, e.g., Troy L. Payne, Comment, Cartesian Eco-Femdarkanism: She Comes from the Earth, Therefore We Are, 37 Envtl. L. 202, 208 (2007) ("Continued study allowed humans to manipulate natural processes, harness energy, and develop technology. With a perceived cognitive superiority to nature and as the creators of energy-hungry machines, humans mechanized their conceptions of nature.").

[312] Although the latter is not intended to be made of straw, it has been recognized that much of contemporary environmental ethics is difficult to translate into a legal program. Id. at 233 (arguing that law should take an intuitionistic approach to regulating the environment, but recognizing that a legal doctrine representing that approach would "likely [be] the most complicated piece of legislation ever.").

[313] See Michael Tobias, Introduction to Deep Ecology, at v, v-viii (Michael Tobias ed., 1985).

[314] See generally Richard Delgado, Our Better Natures: A Revisionist View of Joseph Sax's Public Trust Theory of Environmental Protection, and Some Dark Thoughts on the Possibility of Law Reform, 44 Vand. L. Rev. 1209, 1211 (1991) (critiquing Joseph Sax's public trust theory and suggesting normative change toward more eco-centric theories).

[315] See, e.g., Alyson C. Flournoy, In Search of an Environmental Ethic, 28 Colum. J. Envtl. L. 63, 65-66 (2003).

[316] This is not to say that either of these approaches is fundamentally wrong or misguided for their own purposes. For instance, the general appeal to our past, typical of a lost nature approach, is exemplified in the pleas from Troy Payne and Janet Neuman:

Rivers are drying up. Water tables are falling. Regions that once supported forest ecosystems are barren, and people are abandoning them as inhospitable. Clean water is wasted by some as if it were a right to water a garden with Evian ("naïve" spelled backwards). This is not hyperbole- these are stories about forgetting rain. . . . We must move ahead to the past.

Troy L. Payne & Janet Neuman, Remembering Rain, 37 Envtl. L. 105, 107 (2007). The lost approach is intuitively comfortable and conceptually powerful, drawing upon our critical, neo-Marxian tendencies to think outside of the box in separate, divergent worlds and circumstances. The dilemma is that such an appeal to lost nature might persuasively be thought to have evolved away or even intentionally overcome (for deficiencies that might not appear in the appeal).

[317] See, e.g., Flournoy, supra note 315, at 83 ("[T]he terminology derived from Environmental Ethics may help orient us, and the theories advanced by philosophers may serve as useful beacons, marking out points on the ethical landscape in relation to which we can locate our position and consider our next steps.").

[318] Paul B. Thompson, Pragmatism and Policy: The Case of Water, in Environmental Pragmatism 187, 205 (Andrew Light & Eric Katz eds., 1996) ("Environmental debates over habitat for endangered species are showing signs of a similar pattern, as those who countenance any standing for economic considerations are characterized as greedy and corrupt, while those who advocate for nature are portrayed as uncaring and disrespectful of human needs.").

[319] See Flournoy, supra note 315, at 109 ("The language of the law and substance of public debate over environmental law both reveal scant attention to its ethical content."). But see Lee M. Talbot, Does Public Policy Reflect Environmental Ethics? If So, How Does it Happen?, 37 U.C. Davis L. Rev. 269, 279 (2003) ("The one constant in all these environmental policy-making procedures is that ethics are a powerful motivation for the key individual or individuals who initiate and drive the process.").

[320] See Holly Doremus, The Rhetoric and Reality of Nature Protection: Toward a New Discourse, 57 Wash. & Lee L. Rev. 11, 66 (2000) ("[T]he rhetoric of nature protection must include people in the picture. It cannot simply rely on the wilderness vision of nature necessarily isolated from humanity, unable to bear even the lightest human touch. Putting people in the picture means acknowledging people as part of nature and emphasizing human connections to nature."). In part, the debate itself uncovered such divergent views of ethical duties that law might be said to have failed to incorporate ethics for its failure to adopt one. On the other hand, a credible argument might be made that environmental ethics has developed in a manner that prevents dialogue between ethics and law.

[321] As Daniel Farber points out, "[e]conomic growth is not something we are prepared to abandon in the name of environmental protection." Daniel A. Farber, Eco-Pragmatism: Making Sensible Environmental Decisions in an Uncertain World 200 (1999).

[322] Few projects strongly pursue energy and atmosphere credits, likely due to the level of focus, or incorporate innovative wastewater technologies, likely due to the cost. Langdon, Cost of Green Revisited, supra note 138, at 15-16.

[323] Kibert, supra note 99, at 37.

[324] This pluralistic exercise may not, of course, make every advocate feel vindicated. Indeed, sharing the table may make one feel as though there is not enough to go around. Stephen Kellert, for example, expressed his grave concerns about "an overemphasis on material benefits" in approaches to sustainable design. Stephen R. Kellert, Ecological Challenge, Human Values of Nature, and Sustainability in the Built Environment, in Reshaping the Built Environment: Ecology, Ethics, and Economics, supra note 98, at 39, 48. While recognizing that "[a]meliorating the environmental crisis will certainly require more efficient and effective consumption and production systems," Kellert called for more emphasis on the critical "mental and intellectual well-being reflected in the experience of meaning, beauty, companionship, creativity, imagination, inspiration, spiritual wholeness, and more" that can be found in a built environment that is integrated into the natural environment. Id. at 48-49.

[325] The problem is, first, that environmental policies are not made in such monistic ways, and second, that the theory or hope embodied in moral monism may be unattainable. Moral monism considers "one metaphysics of morals: one concept of the nature of morality . . . one concept of human nature . . . one moral psychology." J. Baird Callicut, The Case Against Moral Pluralism, 12 Envtl. Ethics 99, 123-24 (1990). Assuming there even can be such a close, causal relationship between foundational principles and the identification of actions which are compelled by those principles (a claim which is always under contention), moral monism would of course prevent inconsistent and contradictory actions or programs. Id.

[326] This Article merely seeks hints from the movement to identify the foundational and ethical commitments that can be expected (if any). See Flournoy, supra note 315, at 102 (looking for "patterns of values that consistently appear" in environmental laws to find the ethical implications of the regulatory scheme); see also James P. Karp, Aldo Leopold's Land Ethic: Is an Ecological Conscience Evolving in Land Development Law?, 19 Envtl. L. 737, 746 (1989) (seeking an emerging land ethic in law on the assumption that "law is a reflection of social development"). Karp argues that any conclusion that a land ethic is appearing in law must be based on two separate findings: first, that "we have expanded our horizons to include other-than-human economic interests in making decisions about the land"; second, "that decisions regarding the land are being made through a balancing process that involves the weighing of ethical (ecological), aesthetic and economic factors." Id.

[327] It is recognized that this claim may invoke an otherwise sticky moral analysis of identifying the mechanism through which intent might be transferred from the intended consequences to the unintended consequences of construction. For purposes here, it is assumed that explorations into the concept of causality in environmental matters is arguably collapsing the distinction, based in large part on both the gravity of the consequences and the amount of knowledge we have gathered about causation in environmental impacts. This contentious point, however, must be left to be developed elsewhere.

[328] See, e.g., Office of the Fed. Envtl. Executive, The Federal Commitment to Green Building: Experiences and Expectations 9-14 (2003), available at www.ofee.gov/sb/fgb_report.pdf (detailing the significant impact on the environment caused by buildings in the United States).

[329] It should suffice here to note that the circumstance of scarcity appeals to an anthropocentric analysis by rejoining environmental regulation with the Millian "harm principle," without stating the need to identify and defend more foundational values in and about nature. In contrast, the method of the green building ethic was based on the presupposition that value systems can be grounded in fundamentally anthropocentric aims, and that anthropocentric goods sought in the market can, if correctly understood, compel us to take an active interest in ecosystem integrity.

[330] Obvious examples would include exemptions from environmental review under the National Environmental Policy Act of 1969, 42 U.S.C. 4321-4370(e) (2000), and state equivalents, such as the categorical exemptions under the Washington State Environmental Policy Act. Wash. Admin. Code § 197-11-800(1)(b) (2009) (exempting "minor new construction," including location or construction of up to four residential units, certain parking lots, and other structures). See also Categorical Exclusion, 40 C.F.R. § 1508.4 (2008); Environmental Assessments, 23 C.F.R. § 771.119 (2008).

[331] See generally Nolon, supra note 305, at 365, 413, 415 (discussing the relationship between federal, state, and local environmental laws).

[332] See, e.g., Boston, Mass., Zoning Code § 37-1, 80B-2 (2007), available at www.cityofboston.gov/bra/pdf/ZoningCode/Article37.pdf (green building requirements applicable to "major building projects"-buildings over 50,000 square feet).

[333] See, e.g., James L. Huffman, Protecting the Environment from Orthodox Environmentalism, 15 Harv. J.L. & Pub. Pol'y, 349, 361-69 (1991) (identifying and arguing against the notion that markets are necessarily flawed means of natural resource allocation); Christopher Manes, Green Rage: Radical Environmentalism and the Unmaking of Civilization 247-48 (1990) (discussing the notion that environmental protection should be considered a moral imperative, such that no consideration of economic efficiency can enter into the debate on environmental policy). For a different perspective on an orthodox environmentalist's objection to incentive-based regulation, see Hahn & Stavins, supra note 262, at 34 ("Environmental groups will tend to avoid or disfavor policy instruments that make the costs of environmental protection highly visible to consumers.").

[334] See, e.g., Hahn & Stavins, supra note 262, at 34 ("Private industry typically is reluctant to endorse any environmental policy mechanism for fear of implicitly endorsing the related environmental goal.").

[335] What, then, would be the extent to which green building would retain its popularity if climate change turned out to be a farce? In all likelihood, there would be little effect on green building. The "whole systems approach" embodied in green building, which is not distinct from the ecosystem approach of sustainability, relies less for its credibility on the potential disaster of climate change than on scarcity, fairness, and uncertainty as factors in the ability of our environment to provide for the needs of our species. Accordingly (although it takes a deeper analysis to get there), the same would result if the economic benefits of green building could not be verified.

[336] Compare Wilderness Act, 16 U.S.C. §§ 1131(c) (2006) (describing wilderness as a place "untrammeled by man" and prohibiting most economic activities), with National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370e (2000) (laying out a framework for environmental analysis but allowing economic considerations to trump environmental concerns).

[337] Sagoff, supra note 304, at 23 ("Both the ethical and economic approaches to pollution control law are important, and both have legitimate roles to play in the formation of environmental policy. Although each approach may make a significant contribution, neither by itself suffices as a conceptual basis for regulatory policy.").

[338] Id. at 95.

[339] Alyson Flournoy provides some insight on the basic principles of sustainability, as follows:

Decisions or policies are deemed sustainable only if they incorporate consideration of three co-equal factors: ecology, economics and social equity. Because of the explicit focus on human needs, the concept is compatible with anthropocentrism. On its face, sustainability values the environment and economic activity, not intrinsically but for their utility to humans. The explicit valuing of equity among humans in the allocation of environmental and economic benefits seems to introduce a complementary rights-based approach.

Alyson C. Flournoy, Building an Environmental Ethic from the Ground Up, 27 Environs: Envtl. L. & Pol'y J. 53, 72-73 (2003).

[340] Charles Kibert notes that "[s]ustainability may in fact be a grand illusion. . . . Some would say that we have already surpassed the earth's limits to support today's mass of humanity and that we in the industrialized countries simply have not as yet been able to clearly see the evidence of catastrophic breakdowns." Kibert, supra note 99, at 36.

[341] Flournoy, supra note 339, at 73.

[342] Id.

[343] Id.

[344] Kelly A. Parker, Pragmatism and Environmental Thought, in Environmental Pragmatism, supra note 318, at 21, 33 ("Denying that one or the other sphere is worthy of consideration may appear to prevent potentially moral conflict from arising, but only at the risk of serious moral blindness. Blind anthropocentrism has deplorable consequences for the non-human world, but a blindly misanthropic ecocentrism is no less deplorable.").

[345] Anthony Weston, Before Environmental Ethics, in Environmental Pragmatism, supra note 318, at 139, 153.

[346] Tom Spector, Does the Sustainability Movement Sustain a Sustainable Design Ethic for Architecture?, 28 Envtl. Ethics 265, 280 (2006).

[347] Id. Spector argues, "[t]hus, for architecture at least, one of the most important props of radical environmentalism, nonanthropocentrism, would seem to be at least paradoxical and at worst, nonsensical. Paradoxical because it attacks the very reason for building in the first place-nonsensical because ennobling the human experience seems to already include a respect for the environment." Id. at 282-83.

[348] Kelly Parker distinguishes these approaches as follows: "Anthropocentrism maintains that value is of or for human beings. Biocentrism maintains that all forms of life, as such, are valuable. Ecocentrism emphasizes that value of ecological systems as a whole, including natural processes, relationships and non-living parts of the environment." Parker, supra note 344, at 32.

[349] Ian L. McHarg, Design With Nature 24 (1969).

[350] What is arguably problematic about the role of environmental ethics in this debate-whether conceived as nature at the lost and found, or as a core unit of value, etc.-is that the debaters themselves offer few available directions for policy making. Hence, as Norton has repeatedly pointed out, only two options exist for those who do not concede an intrinsic value of nature: "[A]ccept and use the specialized language of economics . . . or break out of the misleading characterization of the problem as one choosing . . . between the moralisms of the anthropocentrists and the simplistic utilitarian framework of the economists." Bryan Norton, Which Morals Matter? Freeing Moral Reasoning from Ideology, 27 Environs: Envtl. L. & Pol'y J. 81, 92 (2003). That is, we can either adopt an economic perspective, which rejects the value system asserted in bio- and eco-centric moral theories, or we can recognize (or, perhaps, pretend) that we need not definitively identify the "true" character of nature as a precondition to adopting a policy that helps avoid a felt environmental crisis.

[351] Id. at 90 ("We need language and interpretive models that are sufficiently nuanced and context-sensitive-to scale and local place-to allow reasonable discussion and deliberation of goals.").

[352] See generally Doremus, supra note 320, at 13-14 (discussing how environmental law has been shaped by the rhetoric of environmentalists).

[353] In large part, the manner in which we previously valued some subject of emerging interest will seem irrational. For example Salzman (and others) notes that, "[g]iven their significance, one might expect that ecosystem services would be prized by markets and explicitly protected by the law. With few exceptions, however, neither has been the case." James Salzman et al., Protecting Ecosystem Services: Science, Economics, and Law, 20 Stan. Envtl. L.J. 309, 311 (2001). Under a traditional analysis, the nonuse of a resource might have failed to provide any value recognizable as such. The ecosystem services approach, which conceives of values as codependent and complementary, might ask whether the benefits of nonuse (e.g., allowing water to flow downstream, rather than be captured and consumed at some upstream location) outweigh the costs on a broader sphere; if the proposed use would result in water quality problems, water quantity, and habitat concerns downstream, and the use value of these downstream ecosystem services is significant, then the value of nonuse may very well be more valuable than the upstream use.

[354] This argument has been echoed numerous times among the calls for sustainability in environmental law. For instance, individuals discussed this argument in a well-known collaborative essay:

How can we spur this transition and realize the full potential of an ecosystem services approach? Part of the challenge is educational. Most people realize neither the critical role ecosystem services play in their lives nor the threats to service provision. Part is scientific. We need to understand better the linkage between ecosystem function and provision of services so we can appropriately weigh the ecosystem management options. Part is legal, since we have little experience with institutional design and regulatory instruments to protect services. And part is economic. We need to better value services and identify the institutional barriers to their commodification.

Id. at 327.

[355] See supra notes 31-76 and accompanying text (discussing the multiple LEED certifications for water quality, air quality, and energy use, for example).

[356] We do not have to search too deeply to find these stated values. Local government resolutions and ordinances typically address ecological, social, and economic benefits of green building practices, such as in Anaheim's finding that green building, which "can result in significant cost savings" for occupants, will also "provide returns on those investments and deliver economic and environmental benefits" to the broader community. Anaheim, Cal., Res. 2006-187 (Aug. 8, 2006), available at http://www.anaheim.net/utilities/adv_svc_prog/green_power/GrnConnectResolution.pdf. EPA's Energy Star program provides another excellent example. Implemented in 1992 as a voluntary means to utilize the market in controlling greenhouse gas emissions by promoting energy efficiency, Energy Star has grown substantially, including a labeling program benefiting products and buildings that achieve the program's strict energy-efficiency standards. See generally U.S. Envtl. Prot. Agency, Energy Star and Other Climate Protection Partnerships: 2007 Annual Report 14 (2008), available at http://www.energystar.gov/ia/news/downloads/annual_report_2007.pdf. Publicity for Energy Star projects and programs is characteristically and notably pluralistic, combining the rhetoric of emissions reductions with the financial advantages of efficient building systems. For example, see EPA's marketing for the "Change the World, Start with Energy Star" campaign, proclaiming that "[i]n 2007 alone, Americans, with the help of Energy Star, saved more than $16 billion on their utility bills while reducing greenhouse gas emissions equivalent to those from 27 million vehicles." Id. at 1. To access information about EPA's "Change the World, Start with Energy Star" campaign, among others, see U.S. Envtl. Prot. Agency, Change the World, Start with Energy Star, http://www.energystar.gov/changetheworld (last visited May 30, 2009).

[357] Cole, supra note 233, at 292. In this sense, green building illustrates a development in the environmental movement in using the language of economics to provide an effective platform for change.

[358] Of course, many of the legal issues in green building laws remain untested, such as liability concerns of builders, whether green building standards will ultimately become the standard for judging construction defects, and so on. These are important questions, of course-the popularity of green building is so promising that we might legitimately expect that green standards will rise to the level of industry standards for purposes of construction defect liability. Simply put, as green building becomes more pervasive and common, the benefits of green building may become part of the expectation in home buyers.

[359] Charles P. Lord et al., Natural Cities: Urban Ecology and the Restoration of Urban Ecosystems, 21 Va. Envtl. L.J. 317, 320 (2003) ("A revolution in science viewed in real time . . . is like watching the tide come in. Usually, the events are slow to unfold, and we need a marker from which to gauge the change.").

[360] William A. Van Vactor, Jr., The Backlash to Land Use Regulation Continues: An Analysis of Oregon's Measure 37, 26 J. Land Resources & Envtl. L. 221, 222-24 (providing a background of the property rights movement opposition to land use regulation).

[361] Langdon, Cost of Green Revisited, supra note 138, at 3 (emphasis added).

[362] See supra notes 92-100 and accompanying text.

[363] Langdon's report concludes that "[u]ntil design teams understand that green design is not additive, it will be difficult to overcome the notion that green costs more, especially in an era of rapid cost escalation." Langdon, Cost of Green Revisited, supra note 138, at 3.

[364] See BDC White Paper, supra note 6, at 9 ("As James M. Wright, AIA . . . put it, 'Given some time . . . eventually such practices will become the norm for most building site selection, design, construction, and operation.'").

[365] Jones Lang LaSalle, supra note 228, at 7.

[366] Abair, supra note 180, at 623.

[367] Hence, in the important area of indoor air quality, usable data are still lacking in large part. See Del Percio, supra note 9, at 152-53. Del Percio suggests that the preservation and reporting of such data should be awardable in LEED credit systems, id., and to some extent, that idea has taken form in the LEED rating systems. See, e.g., LEED NC, supra note 29, at 74 (awarding points for verification of thermal comfort, although expressly not intended as a continuous monitoring requirement).

[368] See Bronin, supra note 207, at 242 (identifying various criticisms and recommendations for improvement in LEED).

[369] It has been suggested that, as green building becomes more pervasive and data on green building efficiency becomes more available, the positive impacts will exceed these more moderate expectations. See, e.g., Rob Watson & Elizabeth Balkan, Green Building Impact Report 2008, at 15 (2008), available at stateofgreenbusiness.com/files/GreenBuildingImpactReport2008.pdf.