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LEED and the Education of Legislation

by Nic Darling on December 10, 2008 · 7 comments

in Green Programs,LEED,Philosophy

Working through the LEED process on the 100k House project has made me think about the ways in which the government is and should be involved in sustainable progress. LEED is, of course, a voluntary certification program. There are no laws requiring its use (in residential building at least), and no government incentives for adhering to it. It is a great tool for organizing a building project and has growing marketing clout, but LEED doesn’t have the power of legislation behind it. Lacking that it grows slowly and is vulnerable to other watered down “green” certification programs that are easier on the builders and developers that choose to use them.

The solution could be to legally require LEED in some segment of new residential building projects, but is that the role of our government? Should legislation trump the natural workings of market forces or should we allow the demands of consumers to be the sole factor deciding the future of sustainability? There are those on both extremes of this argument, but I believe the solution, as usual, lies somewhere in between.

One of the key, but often forgotten, purposes of legislation is to educate. Even the smartest among us (and most of us aren’t the smartest among us) can’t possibly be educated in enough topics to understand the effect of . . . well . . . everything. The government, on the other hand, is in a position to collect the combined learning of a great many people and share the important information with its citizens.

Sometimes this dissemination of information can be done through pamphlets or a detailed white-papers but with over 20% of us functionally illiterate (beware of boring PDF) and a far greater percentage functionally disinterested, it is a long shot. Other times, television can be a useful tool to disseminate information, but then you’re competing with Two and a Half Men and sensationalist news stories. Try talking about mitigating the effects of energy loss through better insulation against thermal bridging when, one channel over, a man has kissed his girlfriend to deaf (that’s right I said deaf).

Legislation can be a solution to this problem. If something is important enough to be incorporated into law, more people will be inclined to find out why (or at least listen to their TV explain it to them). When the government outlawed lead in paint, many of us spit out our mouthful of paint chips, scratched our heads and said “What? Lead is bad for you?” Now, the unpleasant effects of lead are fairly common knowledge.  People often lack the information to choose actions that are in their best interest, and legislation is sometimes the most powerful means of delivering that information.

Of course, there is bad legislation. There are laws that teach us the wrong lessons. I won’t go to far into those since I try to avoid what some might call “politics”, but I’m sure we can all think of a few recent examples. There is also, I think, a balance between laws that are proscriptive and laws that are educational. Proscriptive laws tend to ignore the potential of the market and demand obedience without room for thought or debate. Educational laws leave space for innovation and evolution. This is more difficult to judge as it has to do with intent, but I will return to the LEED example to try to explain what I mean.

A proscriptive law might be, “All new homes built in the US must be LEED Certified.” This law ignores the market entirely and attempts to effect change simply through force. It ignores conditions which will damage its effectiveness such as a shortage of expertise and an inability among the majority to understand the necessity of such a law. This law’s intent is not educational. It does not lead by example. Rather it demands immediate, blind adherence which kills creativity and threatens market stability.

A better law might be, “all new homes built using federal funds or subsidies must be LEED Certified.” This law leads by example and, in doing so, educates. The market is still free to act, but the requirement signifies the importance of what LEED embodies. This law also recognizes that LEED may not be the best standard in the end and allows the market room to pursue other ideas. With a proscriptive law, other ideas are weakened or killed.

Now, I am aware that what I am saying is already happening. Many government agencies are requiring LEED certification for their buildings and there has been a good deal of legislation in the commercial market. However, I stuck with the example because I think there needs to be more of a push in the realm of home building. Weaker programs are being developed to allow “green” certification in less sustainable projects, and the consumer is in no position to judge their merits. Most are simply not educated. LEED is not perfect but it could be a great tool for moving us toward perfection.

I’m sorry for the length of this post. I tend to go on a bit, particularly when I don’t really know what I’m talking about. I am no expert on legislation, but I hope that by putting these thoughts down I might draw out someone with that expertise. So, come on out green lawyers and political pundits. Tell me how I’m on the right track or how I’m raving like a lunatic. Either way I want to hear your opinions on the best way to educate the public on the importance of building sustainably and the way in which legislation may or may not be involved in the curriculum.

Let’s get the comments rolling and remember . . . disgree with class.

If you enjoyed reading this post I can promise you'll love our new writing over at Postgreen Homes. Yeah, we know that's the same thing your favorite band said and their new album is nowhere near as good as their early stuff, but seriously, we are actually still getting better.

There also isn't much conversation to be had here . . . at least not with us. So come on over to the Postgreen Homes Blog and tell us what you think of our new(ish) digs and crazy ideas. We will be sure to tell you what we think of your opinion.

{ 7 comments… read them below or add one }

1 lavardera December 10, 2008 at 1:01 pm

do you follow the Green Building Law blog?

2 bk December 10, 2008 at 1:45 pm

I have my doubts that legislation=education in a positive way. The market can and should act more efficiently than government mandates. Most mandates have ridiculous strings attached to them due to politicians doing what they’re good at- being politicians.

Good post though- I can tell you’re reluctant to sign on for more government.

3 Steve December 10, 2008 at 2:16 pm

Nice Post! I think the answer to your question is painfully obvious. Your question can be usefully related to the mortgage crisis and the challenge it poses to unregulated business practices, which is often but shouldn’t be confused with free markets. The lesson is that when a market is not transparent, the market will not self regulate. The (for a while) invisible toxicity of the mortgage debt is identical to the environmental toxicity of unregulated building practices. The external environmental costs are not being applied and won’t be (in time) without good regulation, as we have learned, again. The regulation don’t set the price, but makes sure the true costs and risks, as opposed to those the market can get away with, are priced in. So, barring a monumental sudden mass enlightenment on the part of the builders on the planet similar to your own splendid one as exemplified by the 100k house project, legislation is the only way to save the planet. People used to just throw their garbage out the window into the street. This led to sickness and stunk. Now there are laws against it. Those laws were not made by any necessary market function. Just because legislation is never ideal doesn’t mean we’d be better off without it.

4 Brian Baughan December 10, 2008 at 4:36 pm

You said, “The government, on the other hand, is in a position to collect the combined learning of a great many people and share the important information with its citizens.”

That may be the case, but seriously, are we ever going to trust the integrity of that important information? Won’t it serve special interests? Hasn’t it always?

However messy it is, I think it’s best to establish standards on our own, and by that I mean within on our communities and local governments. But damn, it’s a lot of work, even if you’re semi-literate.

5 Chris Cheatham December 10, 2008 at 7:26 pm

Fantastic post! You really covered the issues very well. When I was at Greenbuild, I heard a great presentation regarding creating green building codes. The speech presented three steps for creating green regulations: (1) Incentivize; (2) Educate; and (3) Mandate.

It seems we are still at the incentivize/educate level in most jurisdictions. I get nervous when I see green building mandates.

And thanks for the link, lavardera!


6 Kevin D December 13, 2008 at 12:53 am

I’m personally not a big fan of traditional green politics, like passing laws that favor evaporative coolers over conventional A/C. (This happened in Denver recently) In most cases, market forces combined with lots of consumer education will produce the best results. “Unintended consequences” often result from poorly thought out laws. All other things being equal, fewer laws are better than more laws for many reasons. High on that list of reasons is the need for fewer lawyers.

Chris Nevitt, Denver’s “greenest” city councilman, however, informed me of an interesting law passed by the city of Berkeley, CA. If you own a home and want to put photovoltaic solar on the roof, find a contractor and get a bid. The city will pay for it, then add the cost to your property tax bill to be paid over time.

With a financing scheme like that, there really aren’t any barriers to PV ownership. The yearly savings on your electricity bill is instantly larger than the property tax increase.

Where you definitely get into trouble is when the technology being promoted isn’t the best solution, even if it was when the law was passed. The free market reacts to technology improvements much quicker and more accurately.

7 Nic Darling December 15, 2008 at 11:42 am

Kevin – I fully agree on the technology point. Legislation that mandates technology will be quickly outdated. Even if it does, by some chance, back the right solution, our tediously slow process can never hope to keep up. However, creating laws which demand certain levels of performance regardless of the technology used to reach those levels, could be useful.

Laws which mandate, or even just incentivize, performance standards, demonstrate the importance of that particular type of performance. This can, if leveraged properly, be used as a tool to educate the consumer without negatively impacting innovation in the market. The only ones hurt by minimum performance requirements are those too stagnant to improve their products and methods (mileage standards vs. the US automakers).

Will government mandates for green building be cumbersome and laden with the bribery-induced extras that plague nearly all of our laws? Yes, but, as Steve said, sometimes an imperfect law can be useful. Legislation is sometimes the only tool by which change can be started. The market will not shift if the current methods are profitable and many industries have proven themselves remarkably good at hiding bad practices behind a curtain of prosperity. Legislation is occasionally the way to pull back the curtain, and then, as many of you pointed out, it is the role of innovators to create change.

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