A Climate of Change: Shifting Environmental Concerns and Property Law Norms Through the Lens of LEED Building Standards
By Sarah Fox
INTRODUCTION
There is now a nearly unanimous consensus that “climate change is uncontrovertibly occurring.” Multiple authorities have concluded that human activity is contributing to a change in the Earth's temperature. The Intergovernmental Panel on Climate Change's most recent report stated that scientists had “very high confidence that the global average net effect of human activities since 1750 has been one of warming.” Indeed, in a review of 928 abstracts in scientific journals between 1993 and 2003, none disagreed with the aforementioned consensus, and most observed that warming over the past fifty years is likely due to greenhouse gas concentrations. Moreover, the United States Supreme Court gave credence to the scientific consensus on global warming in the now famous opening language of Massachusetts v. EPA, where the majority noted that “[a] well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere.” This rising awareness of climate change-induced environmental harms has led to an unprecedented focus on adapting human behaviors to mitigate the predicted impacts of this new phenomenon.
With an increasing recognition of the amount of energy that goes into creating and using buildings of every type, one of the strategies currently being implemented to stem the tide of climate change is emissions reduction in the construction industry. This is generally accomplished through the implementation of “green” building standards that set parameters on construction techniques, energy efficiency, and other aspects of building design and maintenance. While most green building standards share similar characteristics, the Leadership in Energy and Environmental Design (LEED) standards developed by the United States Green Building Council (USGBC) have rapidly become the movement's poster child. LEED standards, which began as a voluntary code for developers wanting to market an environmentally friendly product, have exploded in use over the past several years. No longer merely a voluntary option, LEED compliance is now mandatory for a number of projects on the local, state, and federal levels.
Oddly, given LEED's rapid sweep across the country, there has been little discussion of the legal authority of governments to impose these requirements. In light of the historic willingness to challenge property restrictions, this lack of debate is striking, particularly given that several colorable claims against LEED standards may exist. Upon further consideration, the failure of the regulated community to bring claims challenging the imposition of LEED standards appears to be a product of changing social norms in the wake of climate change. This new attitude has increased the worth of a pro-environment reputation, which may dissuade commercial entities in particular from challenging the imposition of green building standards. More significantly, this change in values may mark a shift in how individuals view private property rights in the United States. The property ideals that informed prior assertions of governmental inability to interfere with private rights seem to be giving way in light of the evolving awareness of the ways in which individual behaviors impact the larger community as they contribute to climate change. Given that political philosophy and the common law alike have long failed to recognize the right to use property in ways that harm others, the entitlement of property owners to act in non-energy efficient ways may now be suspect. As this acknowledgement could have far-reaching implications for how private property is treated, the new approach to property ought to be considered with care.
Green building standards, as exemplified by LEED, provide a much-needed shift toward lessening the impacts of human activity on the environment. However, considering that the green building industry has a projected value of sixty billion dollars by 2010 from the USGBC, the urgent need to address emissions does not eliminate the duty to consider whether these new building standards are being carried out in the most desirable way. In light of the current public disinclination to challenge LEED requirements, scrutiny must fall all the more heavily on government action that may otherwise be left without review. While LEED standards may be both necessary and appropriate in response to the growing problem of climate change, it is important to ensure that they are being implemented in a way that balances environmental protection with a socially acceptable construct of private property rights that will be legally enforceable even after this initial green glow fades.
There is now a nearly unanimous consensus that “climate change is uncontrovertibly occurring.” Multiple authorities have concluded that human activity is contributing to a change in the Earth's temperature. The Intergovernmental Panel on Climate Change's most recent report stated that scientists had “very high confidence that the global average net effect of human activities since 1750 has been one of warming.” Indeed, in a review of 928 abstracts in scientific journals between 1993 and 2003, none disagreed with the aforementioned consensus, and most observed that warming over the past fifty years is likely due to greenhouse gas concentrations. Moreover, the United States Supreme Court gave credence to the scientific consensus on global warming in the now famous opening language of Massachusetts v. EPA, where the majority noted that “[a] well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere.” This rising awareness of climate change-induced environmental harms has led to an unprecedented focus on adapting human behaviors to mitigate the predicted impacts of this new phenomenon.
With an increasing recognition of the amount of energy that goes into creating and using buildings of every type, one of the strategies currently being implemented to stem the tide of climate change is emissions reduction in the construction industry. This is generally accomplished through the implementation of “green” building standards that set parameters on construction techniques, energy efficiency, and other aspects of building design and maintenance. While most green building standards share similar characteristics, the Leadership in Energy and Environmental Design (LEED) standards developed by the United States Green Building Council (USGBC) have rapidly become the movement's poster child. LEED standards, which began as a voluntary code for developers wanting to market an environmentally friendly product, have exploded in use over the past several years. No longer merely a voluntary option, LEED compliance is now mandatory for a number of projects on the local, state, and federal levels.
Oddly, given LEED's rapid sweep across the country, there has been little discussion of the legal authority of governments to impose these requirements. In light of the historic willingness to challenge property restrictions, this lack of debate is striking, particularly given that several colorable claims against LEED standards may exist. Upon further consideration, the failure of the regulated community to bring claims challenging the imposition of LEED standards appears to be a product of changing social norms in the wake of climate change. This new attitude has increased the worth of a pro-environment reputation, which may dissuade commercial entities in particular from challenging the imposition of green building standards. More significantly, this change in values may mark a shift in how individuals view private property rights in the United States. The property ideals that informed prior assertions of governmental inability to interfere with private rights seem to be giving way in light of the evolving awareness of the ways in which individual behaviors impact the larger community as they contribute to climate change. Given that political philosophy and the common law alike have long failed to recognize the right to use property in ways that harm others, the entitlement of property owners to act in non-energy efficient ways may now be suspect. As this acknowledgement could have far-reaching implications for how private property is treated, the new approach to property ought to be considered with care.
Green building standards, as exemplified by LEED, provide a much-needed shift toward lessening the impacts of human activity on the environment. However, considering that the green building industry has a projected value of sixty billion dollars by 2010 from the USGBC, the urgent need to address emissions does not eliminate the duty to consider whether these new building standards are being carried out in the most desirable way. In light of the current public disinclination to challenge LEED requirements, scrutiny must fall all the more heavily on government action that may otherwise be left without review. While LEED standards may be both necessary and appropriate in response to the growing problem of climate change, it is important to ensure that they are being implemented in a way that balances environmental protection with a socially acceptable construct of private property rights that will be legally enforceable even after this initial green glow fades.
