What can we learn from D.C.’s green building law?

The following post is by Danielle Rodabaugh:

It’s no secret that decisions made in Washington, D.C., frequently lead the way for progressive industry regulation overhaul. This time, however, the overhaul only affects the district’s construction market rather than the national industry — at least for now.

Photo courtesy of Architect of the Capitol

D.C.'s green building law may have ripple effects elsewhere in the U.S.

The district’s Green Building Act of 2006 was a revolutionary piece of legislation that changed the expectations construction professionals in the district must meet. Since its enactment, construction professionals working in Washington, D.C., have been adjusting to more stringent green building regulations that apply to a wider range of projects than ever before.

The GBA didn’t fully go into effect until Jan. 1, 2012, however, and industry stakeholders continued to scrutinize it through December 2011. Before we delve into how the GBA could affect the future of green building across the country, let’s review the history of this controversial law and take a look at its current state.

The GBA requires that all non-residential buildings within the district larger than 50,000 square feet be built to meet LEED certification standards. Before the GBA, various state and local government agencies across the nation had required that certain publicly funded projects be LEED certified. For example, Colorado has required LEED certification on all state buildings since 2005.  However, the GBA extended to include privately funded projects as well.

The U.S. Green Building Council developed Leadership in Energy and Environmental Design (LEED) guidelines as a way to identify practical and measurable green building strategies. LEED guidelines focus on design, construction, operations and maintenance. Developers, owners and construction professionals can submit their projects for LEED certification, which verifies that a building, home or community was designed and built using techniques aimed at achieving high performance in certain areas of human and environmental health.

The most controversial aspect of the GBA was that it originally included a stipulation requiring contractors to purchase a performance bond guaranteeing their intention to comply with LEED. To put it simply, the bond would hold the contractor financially liable for building a structure that met the minimum LEED standards.

Although performance bonds are commonly required for construction projects, both public and private, the “green performance bond” type required by the GBA simply was not feasible.

Based on the GBA’s initial wording, if a structure failed to meet LEED certification standards, the government could make a claim on the bond to collect money that would be put in a district fund. Construction professionals, surety providers and contract lawyers began discussing how to best handle the new, strange bond requirement. Ultimately, surety providers argued against it.

Because so many parties are involved with any one construction project, surety professionals asserted that the blame could not solely be placed on the lead contractor. As such, they made it clear that the risk associated with such a bond would be far too great for them to back. The state of the GBA remained in limbo for years as rumors and speculation ensued. Finally, less than a month before the GBA was scheduled to go into full effect, the council passed the Green Building Compliance, Technical Corrections, and Clarifications Act of 2012 as an amendment to the GBA.

With the amendment in place, contractors can now choose one of four ways to guarantee that structures will meet LEED certification standards:

• deposit cash in an escrow account (in a financial institution within the district) and name the district on the account

• provide an irrevocable letter of credit from a financial institution authorized to do business in the district

• provide a surety bond secured by the applicant to ensure compliance

• submit a binding pledge that the applicant will fulfill the current LEED standards for commercial and institutional buildings at the certified level within 2 years of receipt of the certificate of occupancy

No matter which option contractors choose, they guarantee that their structures will meet LEED standards. If they fail to do so, they’ll be held accountable for the consequences, financial and otherwise.

When sweeping changes are made to construction standards, a ripple effect frequently follows. Contractors across the country should keep their ears open for discussions about new LEED certification requirements in other areas. As a construction professional, the best way to plan for the future is by learning from the past. Such is the case with the GBA.

Whether you agree or disagree with the GBA, I encourage you to make sure you’re informed of similar changes that could affect your local construction industry. Then, make sure your voice is heard. Those who spoke out against the initial wording of the GBA were successful in arguing their cases.

Knowledge is power; the more informed you are about green building expectations, the better prepared you’ll be to deal with the inevitable changes.

Danielle Rodabaugh is the director of educational outreach at SuretyBonds.com.

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