At home with nature: early reflections on green building laws and the transformation of the built environment.

• Author: Hirokawa, Keith H.

1. INTRODUCTION II. WHAT IS GREEN BUILDING? III. EXAMINING THE REVOLUTION OF GREEN IN BUILDING PRACTICES A. Challenges to Overcome 1. Information 2. Leadership 3. Liability Concerns 4. Building Costs, Perceived and Real B. The Informational Approach to Green Building 1. Leadership from the Building Community: LEED and Beyond 2. Voluntary and Incentive Programs for Private Builders a. Voluntary Green Building Codes b. Expedited Review c. Tax Incentives d. Grants and Loans e. Other Incentive Programs 3. Leadership by Example 4. Green Building Education C. Successes of the Informational Approach IV. MOVING INTO MANDATORY GREEN BUILDING LAWS AND NAVIGATING THE TRADITIONAL DIVIDE BETWEEN LAND USE RESTRICTIONS AND LAND USE RIGHTS A. Requiring Green Building Practices in the Built Environment B. Will the Imposition Go 'Too Far'? property Rights and Green Building V. REFLECTIONS ON GREEN BUILDING AS A NEW IDEA: PUTTING HUMANS BACK INTO NATURE, AND PUTTING ANTHROPOCENTRISM TO WORK VI. CONCLUSION: THE CONTRIBUTION OF GREEN BUILDING TO ENVIRONMENTAL LAW I. INTRODUCTION

   Buildings are one of the distinguishing elements of human civilization, but if they are not constructed thoughtfully they can waste precious natural and financial resources, as well as harm the environment and the health of people who use them. (1) Although it is generally accepted that the built environment (homes, office buildings, schools, roads, dams, etc.) imposes adverse but avoidable impacts on the natural environment, we have had some trouble identifying what changes to make in our building practices. (2) One application of sustainability principles to building design, construction, and operation--known as green building--has provided some guidance on how to change the way we build. Green building represents the notion that by consciously employing less wasteful construction methods, designing more efficient building systems, and using more friendly (earth-friendly and human-healthy) materials, the built environment can remove the excesses that characterize our carbon and (more generally) ecological footprint. (3)

   What appears most notable about the green building movement is the rate of its success: what arguably started only fifteen years ago as "no more than a back of the napkin idea" (4) has exceeded virtually all predictions and expectations of its potential. (5) In November of 2006, Building Design and Construction published a white paper entitled Green Buildings and the Bottom lane, the fourth in a series of reports on sustainability, green building, and the real estate financing industry. (6) After describing past uncertainty over whether green building could survive, the white paper delivered a definitive statement laying to rest any doubts: "We can now safely report that green building is alive and well and active in virtually every major city in America." (7) The U.S. construction market in all sectors (public and private, commercial, residential, industrial, educational, etc.) has entered the green building market in force and is expected to account for five to ten percent of all new construction starts in the year 2010. (8) At the center of a new and growing collective consciousness, green building is hot.

   Why has green building become so popular? Of course, one easy answer--the most common answer--is that the threat of climate change has found the mainstream ear, and green building provides some response to our current understanding of the linkage between past consumptive practices and the increasing threat of climate change. (9) The easy answer, however, may not account for the breadth of green building's popularity; given the birth of green building from the principles of sustainability, and that sustainability was largely championed as an environmental cause, we might have expected a property backlash against green building to match that seen in previous environmental regulations. (10) If curtailing consumptive practices was the only perceived benefit of green building, the trend might be understood simply as the next incremental step in the otherwise embattled evolution of the environmental movement into state and local regulation.

   The development of green building laws illustrates that there is something special involved. The thought behind efficient, "greener" building is that a more informed approach to the built environment can result in buildings that complement the natural environment, instead of conflict with it. (11) Yet, in green building there is no attempt to prevent human interaction with the environment. (12) Green building assumes that construction will occur, that building materials are needed, and that land and natural resources will be transformed, used, or otherwise displaced--but meanwhile is reflective of the fact that every building causes avoidable environmental impacts. (13) Meanwhile, the pluralistic and informational approach of green building has accommodated a convergence of economics and environmental protection, of resource use and nonuse, and of anthropocentrism and the needs of nature's Others. (14) The success of this convergence suggests that the environmental ethics of sustainability, governing the human use of the environment, is transforming the manner in which we build in the environment.

   This Article examines green building laws to illuminate two important contributions from this movement: first, the manner in which these laws introduced green building into the regulatory process governing building construction has allowed the innovative ideas of sustainability to develop in ways that are ethically progressive and market friendly, and as such, appear fundamentally distinct from other environmental laws; and second, that the principles of green building suggest an effective approach to environmental protection that is ethically pluralistic. In Part II, this Article describes and further defines green building to illustrate the goals at issue in the movement. Part III turns to the development of green building laws in the United States to understand how these new ideas were able to navigate practical and legal challenges, and also to identify the more significant early successes of the movement. Part IV considers how the early successes are influencing the direction of green building and green building laws; given the manner in which green building laws have developed, this Article suggests that challenges are unlikely and, in any event, unlikely to be successful. Finally, Part V returns to the principles of sustainability and green building to examine the manner in which the pluralistic foundations of green building operate to expand the ethical implications of the built environment beyond the traditional human-centered, limited duties to the natural environment.

2. WHAT IS GREEN BUILDING?

   Probably no urban activity has greater impact on human health and the environment than building construction and use. Enormous quantities of resources are used during building construction, renovation and operation, and the production of these resources has substantial environmental impacts. It is estimated that 40% of raw materials consumed globally are used for buildings. In addition, in the United States, commercial and residential buildings are responsible for approximately 65% of electricity consumption, 30% of greenhouse gas emissions, 12% of potable water use and 136 million tons of construction and demolition waste annually. Also, many indoor building materials release hazardous toxins, impairing indoor air quality and reducing occupant health and productivity. [Because much electricity is locally produced] and many buildings use oil or natural gas for their heating and hot water, energy consumption in building operation translates into greater local pollution, including emissions of sulfur dioxide, nitrogen oxides, particulate matter, carbon dioxide, and mercury. These pollutants contribute to respiratory disease, heart disease, smog, acid rain, and climate change. Moreover, as energy demand rises, so does our reliance on dirty, inefficient power plants, as well as the nation's dependence on foreign oil and natural gas. (15) A historical understanding of the built environment might illustrate the difference between construction that sets buildings into and in harmony with an existing environment and construction that transforms and comes to characterize the natural environment. Although we may individually aspire to the former, our civilized tendencies toward the latter may be due to the manner in which we use the environment: we cut live trees to build homes (rather than reuse building materials); we use cheap (and easy to manufacture) chemicals to treat and decorate our homes; we value larger homes on larger lots; and we generally leave the lights on, toilet and faucet running, and (to some) we shower too often. (16) As a result, in the United States, buildings drain immense amounts of energy and water and generate astounding quantities of waste. (17) In the meantime, we arguably have not thought deeply enough about our choice of construction methods and building materials--both for structural durability, but also for indoor health and air quality implications. (18) Given the foregoing, our human, built environment might be summarized as a bit short on wisdom, a bit short of foresight, and a bit long on economic interests--economic returns have historically taken priority over the "preference" for preservation of the natural environment. (19) At least, environmental quality has been understood by many as a second-rate priority, barely even qualifying as a human need. (20)

   Humans are emerging from the traditional perspective with a new sense of place and relationship with nature. EPA recently announced that "America is shifting to a 'green culture' where all 300 million citizens are embracing the fact that environmental responsibility is everyone's responsibility." (21) The past...