By Bill Hall, Venable LLP and outside Counsel to the Resilient Floor Covering Institute
As goes LEED, so goes green building certifications. While competing systems such as Green Globes are gaining ground, LEED remains the predominant U.S. green building certification system. In addition to widespread market adoption, LEED has been incorporated into the laws or regulations of 34 states and 442 local governments and is used by 14 federal agencies. Thus, the ongoing effort by the U.S. Green Building Council (USGBC) to overhaul LEED continues to have a significant impact on the building materials used in green buildings.
USGBC began the process of revising the current rating system, LEED 2009, when it issued its first draft of LEED 2012 in November 2010. A fundamental issue for the vinyl building material industry is USGBC’s aggressive efforts to include a material avoidance credit in LEED 2012 that is directed at vinyl products. The second draft of LEED 2012 issued in August 2011 included, for the first time, an “Avoidance of Chemicals of Concern” credit targeting building products containing more than negligible amounts of any of the over 800 substances on the California Prop 65 list — a list that includes phthalate plasticizers used in vinyl flooring and carpet backing. The third draft of LEED 2012 issued in March expanded the material avoidance credit to expressly include any products containing PVC, specified phthalate plasticizers and Prop 65 chemicals. Thus, this draft credit would deselect all vinyl building materials, including vinyl flooring, carpets with vinyl backing, vinyl wall covering, PVC piping and nearly all commercially available roofing.
In its comments to the third draft, the Resilient Floor Covering Institute (RFCI) highlighted the fact that USGBC’s own PVC task group looked at this issue for nearly five years before concluding a PVC avoidance credit was not justified because no one material, whether vinyl or non-vinyl, performs better than the other. The task group cautioned that employing the “blunt instrument” of a PVC avoidance credit could have the effect of “inadvertently steering decision makers to replace one high-negative impact material with another.” Accordingly, the task group recommended that LEED incentivize the use of a preferred building material only if it has been shown to be “demonstrably better with regard to environmental and human health impacts over their life cycles” than the disfavored material.
To its credit, USGBC was responsive to the well-founded objections from RFCI and numerous other industry stakeholders and removed from the material avoidance credit in the fourth draft. Thus, as advocated by the vinyl industry, USGBC did not arbitrarily turn its back on the recommendations of its PVC task force after a five-year review of PVC building materials.
However, in that fourth draft, USGBC came out with a revised material avoidance credit that is sure to confound product manufacturers and green building project leaders alike. This draft would reward the use of building materials that meet the requirements of two European Union regulatory programs: the Registration, Evaluation, Authorization and Restriction of Chemicals, more commonly known as REACH, and CLP Regulation EC No. 1272/2008 (revision 4) Globally Harmonized System for Classification and Labeling of Chemicals.
For a building material to be eligible for this credit, a U.S. manufacturer would have to demonstrate either that it exports the product to Europe in compliance with REACH and the labeling requirements of CLP, or obtain third-party certification that the product would be REACH- and CLP-compliant if it were exported. Thus, USGBC — where the “US” stands for “United States” — would import European requirements to green buildings in the U.S. and require U.S. building product manufacturers to comply with these foreign requirements even though they don’t export their products to Europe.
Not only have these European requirements never been adopted by Congress or U.S. governmental authorities, but these requirements would discriminate against many U.S.-produced building materials. According to the Department of Commerce, only 1% to 2% of U.S. companies export their products, and the majority of those companies export to only one country — most often Mexico or Canada. Thus, most U.S. building product manufacturers have never had to comply with REACH and CLP. Moreover, USGBC does not explain how a U.S. company not exporting to Europe is supposed to show compliance where REACH does not authorize submissions from companies not manufacturing or importing into Europe. Unless the unworkable credit is dropped, these U.S. building materials companies will face an unfair and expensive choice: absorb the costs of REACH and CLP compliance even though these requirements have never been adopted by the U.S. government, or suffer a significant U.S. competitive disadvantage by selling products that do not qualify for the LEED credit.
This last-minute revised credit based on complicated and unfamiliar European requirements was introduced May 11 as part of the 595-page fourth draft of LEED 2012, which contains almost 400 pages with changes on them. Yet USGBC provided only 17 days for interested parties to submit comments. While USGBC originally stated membership balloting on the final LEED 2012 would start June 1 — three days after the comment period closed, it has now changed the date to Aug. 15. While announcing that date on May 25, it did not extend the abbreviated comment period.
This truncated comment period for a 595-page document with hundreds of changes unfairly limits the ability of interested parties to fully review and comment on these extensive changes. This is particularly true for the European-based material avoidance credit which has come out of left field without any advance notice and has not gone through the LEED pilot program to see if compliance on a trial basis is even feasible. Thus, because of the procedural and substantive flaws explained in this article, USGBC should withdraw this proposed materials avoidance credit from the final LEED 2012 document that goes to membership ballot.
*The author appreciates the assistance provided by Justin Curtis, a Venable associate, in preparing this article.