"Green" or Energy Efficient Building Codes May Be on the Horizon

May 8, 2009
by MEREDITH DuBARRY HUSTON
Client Alert Newsletter May 2009

Green building is on the rise along with calls to require it. However, at present, state mandated building codes can preempt local efforts to enhance building codes with incentives or requirements for green building practices. In both New Jersey and Pennsylvania, efforts are underway to modify state building codes to either allow or require buildings to be more sustainable or energy efficient.

In 2007, the New Jersey legislature authorized the preparation of a green building manual to ensure that standards are available for owners and builders who participate in programs encouraging or requiring green building. The state also adopted a definition of the term "green building" as "[b]uilding construction practices that significantly reduce or eliminate the negative impact of buildings on the environment and their occupants and may consider . . . [s]ustainable site planning; safeguarding water and water efficiency; energy efficiency and renewable energy; conservation of materials and resources; and indoor environmental quality."

New Jersey has yet to adopt a revision to its Uniform Construction Code requiring green building or allowing for the adoption of energy efficiency standards exceeding national standards. However, green building codes will likely play an important role in New Jersey's efforts to meet an aggressive mandate for a statewide reduction in greenhouse gas emissions under the state's Global Warming Response Act and related Energy Master Plan. Under New Jersey's Energy Master Plan, Governor Jon S. Corzine and state agencies are tasked to work with the Legislature to develop statewide building codes requiring new construction to be at least 30 percent more energy efficient than the current building code requires and also to develop a strategy to achieve net zero carbon emissions from buildings. Further information about how New Jersey will address green building in its building code is anticipated with the impending release of the final Global Warming Response Act Recommendations Report.

In Pennsylvania, Governor Edward G. Rendell proposed the development of a green building code for the state during his budget address on February 4, 2009. Similar to New Jersey, Pennsylvania has enacted a Climate Change Act ("Act 70"), which requires the Pennsylvania Department of Environmental Protection to suggest measures to reduce greenhouse gas emissions in the state. Although Act 70 does not mandate the implementation of green building initiatives, high performance building codes are likely to have top priority as Pennsylvania contemplates how to address greenhouse gas emissions in the state.

Also, on April 22, 2009, the International Code Council ("ICC"), the non-profit organization which develops and maintains the International Building Code, announced that it will be creating a "green" commercial building code. Interestingly, the uniform building codes in both New Jersey and Pennsylvania are based on the International Building Code. It remains to be seen whether the states or the ICC will lead the way in first developing code provisions that will enable the further development of green building.