The march towards greener buildings continues at a fast pace. Here's a look at a few trends that are gaining momentum.

LEED and performance accountability

The Leadership in Energy and Environmental Design rating system is the predominant voluntary rating system in the U.S. Because of its growing use in the design of buildings and the differing views on how to achieve sustainability, LEED has been the subject of both praise and criticism.

In my view, the single greatest issue is whether LEED-certified buildings are in fact more efficient than buildings that are not certified and whether they provide the benefits promised.

LEED has addressed the performance issue by requiring that certified buildings monitor and record certain building performance information, by increasing the role of commissioning, and by establishing as a pilot credit the Life Cycle Assessment of Building Assemblies and Materials.

LCA is a method for determining the environmental impact associated with the life cycle of a material or product. The LEED development process mandates continued improvement by the developers of the rating system and there will certainly be increased efforts to coordinate the system so that buildings achieve performance goals.

Shift from voluntary rating systems to building codes

Until now, most attempts to incorporate sustainability into building codes have relied upon the LEED rating system or Energy Star - both voluntary systems.

Requiring that buildings achieve certain sustainable levels is a complex process and can lead to lawsuits like the one filed against the City of Albuquerque, N.M., when it attempted to require certain energy efficiency levels in appliances.

Because of the tremendous interest by the public in promoting sustainability, there have been several major developments focused on making it easier for governmental units to require sustainability. Of particular note in the commercial arena are:

• ASHRAE 189.1 - 2009 Standard for the Design of High-Performance Green Buildings (except low-rise residential buildings). Many believe that this standard will revolutionize existing building codes by establishing minimum standards in such areas as site sustainability, water use efficiency, energy efficiency, indoor environmental quality, and the building’s impact on the atmosphere, materials and resources. This standard is the result of a collaborative effort between the American Society of Heating, Refrigeration and Air-Conditioning Engineers, the United States Green Building Council, and the Illuminating Engineering Society. The standard is written in code-intended language (mandatory, enforceable language) so it may be referenced or adopted by enforcement authorities as the minimum acceptable level for high-performance green buildings within their jurisdiction. It is only effective if adopted.
• International Green Construction Code. Created by the International Code Council with the input of many stakeholders, the latest draft version of the model code is Public Version 2.0 (November 2010). After comments are received and the draft finalized, the first edition of the code will be published in March 2012 and will be updated every three years. This groundbreaking code is written in a regulatory framework so that the code can be readily adopted by governmental units, and will likely speed up the adoption of green building codes.

Increased education in sustainability

Sustainability programs at colleges and universities are proliferating not only because educational institutions understand the importance of sustainability, but also because of growing public demand and federal support for these programs.

Some of the local institutions that provide programs in sustainability include the University of Michigan, Washtenaw Community College, Aquinas College in Grand Rapids, Cleary University, Davenport University, Lawrence Technological University, Macomb Community College, Marygrove College, Oakland Community College and Wayne State University. Not only will these programs grow, but students trained in these programs will become the leaders of the future in sustainability and are certain to expand the pursuit of sustainability by all facets of society.

Innovative methods of financing green building projects

While studies document public interest in sustainability, the extent to which sustainable elements will be included in buildings will depend on economic factors including the payback period for any energy-saving feature.

This is especially true during our current economy where property values are barely rising and financing for new projects is challenging. Tax credits, incentives, and innovative financing methods will continue to play a major role in the decision process.

One new type of financing that was made available to Michiganders took the form of a law that went into effect Dec. 14, 2010, when Gov. Jennifer Granholm signed into law the Property Assessed Clean Energy Act. PACE permits a Michigan county, city, township or village to create one or more assessment districts to finance specified energy efficiency improvements to commercial or industrial real property. People in the district may apply to receive financing for their project.

The governmental unit can raise money to fund projects in the district through bonds and other methods specified in the law. The party borrowing the funds agrees to repay the amount loaned via a tax assessment that appears on the summer and winter tax bill and which may be pro-rated over many years. The obligation is secured by a lien similar in effect to tax and assessment liens.

Harvey Berman, a LEED Accredited Professional, is a partner at the law firm of Bodman LLP, practicing in its Ann Arbor office. He is chair of the firm's Construction Practice Group and represents clients in construction, real estate, and business matters. Contact him at 734-930-2493 or at hberman@bodmanllp.com.