New Jersey Struggles with the Definition of “Green”

State bill being denounced for failing to effectively define Green Building

by Harry E. McLellan

What is “Green”? The answer to this seemingly simple question has New Jersey Lawmakers and proponents of Green Building at odds over proposed new legislation that proclaims to bring mandatory “High Performance Green Building” to New Jersey.

In Bill S843, which is expected to be signed into law, the New Jersey State Legislature declares the Garden State’s commitment to energy efficient and environmentally friendly State government buildings. Ironically, S843 is being denounced by Green Building supporters, including the United States Green Building Counsel of New Jersey (“USGBC-NJ”).

Bill S843 provides that “any new building having at least 15,000 square feet in total floor area that is to be constructed for the sole use of a State governmental entity ... shall be designed and managed to meet standards for a high performance Green Building.” Sustainable design advocates maintain that, despite its Green appearance, the Bill is ineffective because it contains too broad a definition of Green Building.

The Bill defines “High Performance Green Building” as a building that is designed and constructed in a manner that achieves at least: a Silver Leadership in Energy and Environmental Design rating (“LEED”); a two Green Globe rating; or a comparable numeric rating.

In an open letter to N.J. State Legislators and Officials, the USGBC-NJ expressed grave concerns about this definition. The USGBC-NJ urged the legislature to adopt a prior version of the Bill that permitted only the LEED rating system as the Green Building standard. The USGBC-NJ warned that by including other rating systems in determining what is Green, the “initiative is destined to fail.”

LEED is the nationally accepted benchmark used for defining high performance Green Buildings. It is an established rating system created in 1998 with more than 5,000 projects registered throughout the country. LEED promotes a whole-building approach to sustainability by recognizing performance in five key areas of human and environmental health; sustainable site development, water savings, energy efficiency, material selection, and indoor environmental quality. According to the USGBC-NJ, to allow other rating systems as equivalents would be wrong and jeopardize the goal of reducing or eliminating the negative impact buildings have on the environment and its occupants.

Indeed, the position of the USGBC-NJ regarding the LEED standards for sustainability is the prevailing wisdom in the United States today. In a U.S. General Services Administration (“GSA”) study conducted by the Pacific Northwest National Laboratory (“PNNL”), the LEED rating system was found to be “the most appropriate and credible sustainable building rating system available.” PNNL’s conclusions were based on a comparison and evaluation of five (5) rating systems. The study recommended that LEED should be used to evaluate GSA projects because LEED tracks the quantifiable aspects of sustainable design building performance; is verified by trained professionals; has a well-defined system for incorporating updates; and is the most widely used rating system in the U.S. marketplace. As such, LEED has been adopted by the GSA and the Department of Defense.

In addition to the Federal Government, LEED is the standard by which many other State and municipal Green Building initiatives are measured. For example, the cities of Boston, Washington and New York mandate that all new municipal building work or work on existing municipal buildings must follow LEED. New Jersey municipalities have also incorporated Green Building principles and LEED in their redevelopment plans. The Boroughs of Highland Park and Belmar have launched broad-based sustainable building plans for their communities and the Township of Cranford has adopted a Green Building ordinance requiring LEED certification.

Notwithstanding LEED’s apparent status as the only true measure of Green construction today, New Jersey politicians are ostensibly content with the over expansive definition of Green Building in Bill S843. Opponents of the Bill believe that equating less stringent and ambiguous criteria with the exacting conditions of LEED would legitimize pretentious substitutes and thereby dilute the goal of sustainability. In any event the Bill will undoubtably create confusion and perhaps set a bad precedent for future laws that may seek to mandate Green Building. Clearly, the debate over what is Green is not mere semantics, because New Jersey’s answer to the question may ultimately prove to be bad for the environment.

Harry E. McLellan is a Green Construction attorney and partner in the law firm McLellan & Bialkowski, LLC with offices in Paramus, New Jersey and New York City. He is Co-Vice Chairman of the NJSBA Construction Section, and is a member of the New Jersey and New York Chapters of the U.S. Green Building Council. Reach him at 201 909-0707 and harry@mclellan-bialkowski.com.