Gglts Green Matters 2009 New Green Legislation Presentation
The following presentation is an abbreviated slide presentation that is part of the
seminar materials available through the law firm of Gibbs, Giden, Locher, Turner &
Senet. For a current list of all upcoming seminars please see our website at
http://gglts.com. In house seminars and courses in construction, public contracts and
employment law are available through the firms public relations director Lannette
Pabon at L.Pabon@gglts.com.
According to the U.S. Green Building Council, buildings nationwide account for 70
percent of electricity consumption, 39 percent of energy usage, 12 percent of potable
water consumption, 40 percent of raw materials usage, 30 percent of waste output
(136 million tons annually), and produce 39 percent of associated greenhouse gases
Major “Green” Legislation:
Green Building Initiative (Executive Order S-20-04) set a goal of reducing energy use
in state-owned buildings by 20 percent by 2015 (from a 2003 baseline) and
encourages the private commercial sector to set the same goal. The order also
directed compliance to the "Green Building Action Plan," which details the measures
the state will take to meet these goals.
Global Warming Solutions Act (AB 32, now Health & Safety Code 38500 et seq.) The
Global Warming Solutions Act requires a cap on greenhouse gas emissions by 2020,
mandatory emissions reporting, and the development of a market-based compliance
program to achieve the emissions cap in the most cost effective and technologically
feasible manner with the least impact on California consumers and business. Among
the many public policy initiatives proposed to meet these goals is a requirement that
government and private commercial buildings reduce their electricity consumption by
10 percent/square foot by 2010, and 20 percent by 2015.
SB 375, a bill aimed to reform land-use planning and decision-making in ways
designed to increase the certainty that state housing needs will be met, better
integrate transportation planning with development and reduce greenhouse gas
(GHG) emissions. Approved by the Legislature and signed into law in late September
2008 , SB 375 (Steinberg) will establish, a future road-map for compliance with AB 32,
the state’s new law that sets long-term targets for reducing GHG emissions.
On September 27, 2006, Governor Schwarzenegger signed Assembly Bill 32, the Global Warming Solutions Act of 2006, setting
the stage for California’s transition to a sustainable, clean energy future. This historic step also helped put climate change on
the national agenda, and has spurred action by many other states. The California Air Resources Board (ARB) is the lead agency
for implementing AB 32. ARB met the first milestones in 2007: developing a list of discrete early actions to begin reducing
greenhouse gas emissions, assembling an inventory of historic emissions, establishing greenhouse gas emission reporting
requirements, and setting the 2020 emissions limit.
ARB next developed a Scoping Plan outlining the State’s strategy to achieve the 2020 greenhouse gas emissions limit. This
Scoping Plan includes a comprehensive set of actions designed to reduce overall greenhouse gas emissions in California,
improve our environment, reduce our dependence on oil, diversify our energy sources, save energy, create new jobs, and
enhance public health. It was approved by the ARB in December 2008. The measures in the Scoping Plan approved by the Board
will be developed over the next two years and be in place by 2012.
Key elements of California’s recommendations for reducing its greenhouse gas emissions to 1990 levels by 2020 include:
• Expanding and strengthening existing energy efficiency programs as well as building and appliance standards;
• Achieving a statewide renewable energy mix of 33 percent;
• Developing a California cap-and-trade program that links with other Western Climate Initiative partner programs to create a
• Establishing targets for transportation-related greenhouse gas emissions for regions throughout California, and pursuing
and incentives to achieve those targets;
• Adopting and implementing measures pursuant to existing State laws and policies, including California’s clean car standards,
movement measures, and the Low Carbon Fuel Standard; and
• Creating targeted fees, including a public goods charge on water use, fees on high global warming potential gases, and a fee
to fund the
administrative costs of the State’s long term commitment to AB 32 implementation.
A full copy of the Scoping Plan is available at: http://www.arb.ca.gov/cc/scopingplan/document/psp.pdf
More information on the California Global Warming Solutions Act of 1006: http://www.arb.ca.gov/cc/cc.htm
Analysis of the Proposed Scoping Plan indicates that projected economic benefits in
2020 compared to the business-as-usual scenario include:
• Increased economic production of $33 billion
• Increased overall gross state product of $7 billion
• Increased overall personal income by $16 billion
• Increased per capita income of $200
• Increased jobs by more than 100,000
Early Action Measures - these measures are to be developed into regulatory
proposals, adopted by the Board, and made enforceable by January 1, 2010.
Additional early action items include a comprehensive framework of regulatory and
non-regulatory elements that will result in significant and effective GHG emission
Discrete Early Actions
Low Carbon Fuel Standard
Landfill Methane Capture
Reductions from Mobile AC
High GWP Consumer Products
Tire Pressure Program
Click on This Link to Access a Copy of the CALGREEN Code
The 2008 California Green Building Standards (CALGREEN) Code*
The CALGREEN Code is Part 11 of the California Building Standards Code, Title 24. Working with the “Climate Action Team,” the
California Air Resources Board and numerous state agencies, the California Building Standards Commission (CBSC) created the
CALGREEN Code to meet some of the goals of AB32.
To that end, the CBSC created the CALGREEN Code which contains primarily voluntary green building standards for
nonresidential occupancies (under the jurisdiction of the CBSC) and hospitals (under the jurisdiction of the Office of Statewide
Health Planning and Development) and mandatory standards with delayed effective dates for low-rise residential (under the
jurisdiction of the Department of Housing and Community Development). The CALGREEN Code includes provisions for Site
Design, Energy Efficiency, Water Conservation, Materials Conservation, and Environmental Quality, with matrix tables to assist
the user to determine each agencies adoption.
The CALGREEN Code becomes effective on August 1, 2009, at which time local jurisdictions may choose to adopt it or parts of it
The Future of the CALGREEN Code
Governor Schwarzenegger, in veto messages on a trio of green building bills (AB 888, AB 1058, AB 35) sent to him in late 2007,
“It is imperative to expedite the greening of California’s building standards. As such, I am directing the California Building
Standards Commission to work with specified state agencies on the adoption of green building standards for residential,
commercial, and public building construction for the 2010 code adoption process.”
The 2010 version of the CALGREEN Code and the California Building Standards Code is planned to become effective on January
Agency Key - Interpreting the CALGREEN Code
CBSC = California Building Standards Commission
OSHPD = Office of Statewide Health Planning and Development
HCD = Department of Housing and Community Development
DSA = Division of the State Architect
*Information provided by the California Building Standards Commission website.
Implementation of the CALGREEN code will lead to improved energy efficiency and reduced
water consumption while reducing the carbon footprint of all new buildings in California
including single family homes, health care facilities, schools and commercial buildings. The
code will be updated on an annual basis to incorporate new technology and methods of
construction. The requirements vary by building type and size, with a delayed
implementation of housing mandates and voluntary standards for hospitals and other non-
Planning and Design- Preservation and use of available natural resources.
Water Management - More stringent management of storm water during construction.
Energy efficiency - 15% reduction in building energy use over current standards (will make CA
homes 50 percent more efficient than homes built to national energy standards).
Water efficiency and conservation - 20% indoor water use reduction primarily through
improvement in efficiencies for commercial and residential plumbing fixtures. - 50%
landscape water use reduction.
Material conservation and resource efficiency - 50% reduction in construction waste by
recycling or salvage for reuse of non-hazardous construction and demolition debris. -
Requires 10% of construction materials to be produced in California or within 500 miles of
Environmental air quality - Low or no-VOC (volatile organic compound) adhesives, paints and
coatings. High-efficiency air conditioning filters to better filter out dust and particulates and
always-on exhaust fans to ensure better fresh air circulation in homes.
National Association of Homebuilders
“Of all the embodied emissions produced in building the baseline single family house,
Athena’s Impact Estimator estimates that the overwhelming majority are produced during
the manufacturing of materials, which accounts for roughly 50 metric tons of CO2 equivalent
(MTCO2e). Construction and transportation have relatively little effect, as greenhouse gases
generated during construction activity accounts for roughly 2.0 MTCO2e and transportation
of building materials to the construction site accounts for only roughly 0.1 MTCO2e. The
Impact Estimator also shows relatively little variation in MTCO2e from the transportation and
installation of building products as the specification of house changes, unlike manufacturing,
which changes total MTCO2e dramatically in some cases. Embodied emissions are often
measured in MTCO2e, where the “e” for “equivalent” is used to include the impact of other
greenhouse gasses produced during manufacturing. Other gasses besides CO2 have a
different (usually much greater) impact on the environment per unit of weight, so in order to
compare the overall emissions each greenhouse gas is calculated in terms of the equivalent
amount of CO2 it would take to have an equivalent impact on climate change.
According to the results produced by Athena’s Impact Estimator, total embodied emissions
(cradle to gate) of the baseline house is 51.4 MTCO2e. By comparison, NAHB estimates that a
typical new home built in the Los Angeles metro area generates 7.0 MTCO2e per year from
energy used inside the home, and the 14.5 MTCO2e per year from vehicles driven by the
occupants of the home. In other words, the embodied emissions amount to about seven
years of emissions generated by using the home or more than three times the annual
transportation emissions.” Greenhouse Gases and Home Building: Manufacturing,
Transportation, and Installation of Building Materials
Special Studies, September 9, 2008
Local governments are essential partners in achieving California’s goals to reduce
greenhouse gas emissions. They have broad influence and, in some cases, exclusive
authority over activities that contribute to significant direct and indirect greenhouse
gas emissions through their planning and permitting processes, local ordinances,
outreach and education efforts, and municipal operations. Many of the proposed
measures to reduce greenhouse gas emissions rely on local government actions.
AB32 Scoping Plan, p. 26
1. Regional Target-Setting Process - By September 30, 2010 the California Air
Resources Board (CARB) must have consulted with local governments, regional
planning agencies and interests groups and then set regional GhG reduction targets
for cars and light trucks for 2020 and 2035.
2. Regional Development of Sustainable Community Strategies - Existing regional
transportation planning process under state and federal law is modified to require
the preparation of regional strategies to meet the GhG targets.
3. Incentives for Land Use Projects That Can Help Reduce Emissions – New California
Environmental Quality Act (CEQA) streamlining opportunities for residential and
mixed-use projects that are consistent with the regional plan. Favors projects most
likely to reduce vehicular use and GhG emissions (e.g. non-sprawl development).
Federal and state transportation project funding priority for projects consistent with
the approved regional Sustainable Community Strategies.
4. Integration of Regional Planning Update Requirements – coordinated planning
between state, regional and local agencies encompassing three public policy
objections: regional housing needs allocation including zoning for affordable
housing (HUD), transportation infrastructure improvements (CA Transportation
Commision and DOT), and GhG reduction (CARB). The process repeats every eight
years until 2050.
The California Attorney General State office has complied a list of local government
“green” building ordinances. This list also includes a summary of green building rating
systems, prescriptive measures, performance standards, municipal building
standards, enforcement, incentives, and comprehensive ordinances. You can find this
detailed resource on the web at :
San Francisco and Los Angeles have enacted strict green building ordinances, based
on the national council’s benchmark of Leadership in Energy and Environmental
Design, which is also used by the state for public construction. But a large swath of
the construction industry considers LEED standards too strict, and managed to head
off efforts to incorporate them into the statewide code.
The Program was approved by the City Council and signed by the Mayor on Earth Day,
April 22, 2008.
Exemptions: Projects whose plans were accepted by DBS for plan check or who filed
and had deemed complete an entitlement application (except for CEQA review) with
DCP prior to the effective date.
The LEED® (Leadership in Energy and Environmental Design) green building
certification system is a feature-oriented certification program that awards buildings
points for satisfying specified green building criteria. The six major environmental
categories of review include: Sustainable Sites, Water Efficiency, Energy and
Atmosphere, Materials and Resources, Indoor Environmental Quality and Innovation
and Design. Certified, Silver, Gold, and Platinum levels of LEED green building
certification are awarded based on the total number of points earned within each
LEED category. LEED can be applied to all building types including new construction,
commercial interiors, core & shell developments, existing buildings, homes,
neighborhood developments, schools, retail facilities and Healthcare.
Incentives for LEED are available at the state and local level and LEED has also been
adopted nationwide by federal agencies, state and local governments, and interested
For more information, visit www.usgbc.org/LEED.
US Green Building Council - http://www.usgbc.org/
Certified & Registered Projects List -
Reorganization and enhancement of existing LEED Rating Systems:
LEED Prerequisite/Credit Alignment and Harmonization – Structure to consolidate, align and
update all existing LEED Rating Systems into their “most effective common denominator”
providing a pool of prerequisites/credits for all LEED Rating Systems. A scrub of the existing
Credit Interpretation Rulings (CIRs) was conducted and necessary precedent-setting and
clarifying language has been incorporated into the prerequisites/credits.
Predictable Development Cycle – LEED will move into a predictable development cycle that
will help drive continuous improvements in LEED and allow the market to participate more
fully in LEED’s growth and development.
Transparent Environmental/Human Impact Credit Weighting –LEED has undergone a
scientifically grounded re-weighting of credits, which will reflect more accurately a credit
point impact on the environment and human health (positive or negative).
Regionalism – Incentives will be provided through LEED Innovation & Design style bonus
points that will add value to those credits that are considered most important for defined
regions. Project teams may select bonus points from a list of eligible credits driven by
chapters, regional councils, and the LEED Steering Committee.
Information on LEED 2009 available at: http://www.usgbc.org
Risk Management Challenges and Risk Transfer
From a risk management standpoint, a shared risk is often the best means to assure
that the project achieves the objectives of the parties. Unreasonable risk allocations,
exculpatory contract provisions, or unreasonable limitations on liability are often
counter-productive. The contract documents should not only encourage parties to be
diligent in meeting the objectives of a project, but to work together with the other
members of the project team to meet these objectives. A balanced approach which
encourages the project team to cooperate and work together effectively is typically in
everyone’s interest. Some key issues and risks to look out for as mentioned in the
Where key certifications or performance criteria are critical to an owner, insurance or
bonding should be considered, along with adequate project controls and a carefully
considered contractual risk allocation. While bonding is currently available,
professional liability is typically the only type of insurance which will cover economic
loss such as delay or damages due to improper design. Professional liability insurance
is typically expensive and written with relatively low limits. Usually, a contractor’s
commercial general liability coverage will only provide coverage for property damage
that does not result from improper design. It may be some time before commercial
liability insurance coverage for contractors will be available to cover most of the
green risks identified above.
Attorney Profile - Theodore L. Senet, Partner Page 1 of 2
Theodore L. Senet, Esq.
Address: 1880 Century Park East, 12th Floor
Los Angeles, California 90067-1621
Phone: (310) 552-3400
Fax: (310) 552-0805
Theodore L. Senet is a partner of Gibbs, Giden, Locher, Turner & Senet LLP. His practice specializes in the
areas of insurance, construction, real property and environmental law. He has been involved in planning,
development, risk management, construction and dispute resolution on numerous major projects,
including high rise buildings, hospitals, airports, roadways, power and processing plants, refineries,
manufacturing facilities and large residential developments. He currently represents public entities,
corporate owners and developers, commercial general contractors and major home builders in insurance
planning and procurement, insurance claims and insurance coverage litigation, complex construction defect
and environmental litigation, class action litigation, construction delay claims and major tort litigation.
Mr. Senet is a well-known speaker, educator and author. He is a course instructor on insurance,
construction and real property law, and has been a principal speaker for numerous MCLE approved
seminars. He has served on many panel programs, including the University of California Continuing
Education of the Bar programs "Construction Law and Disputes," "Insurance Law for Real Property,
Business and General Counsel" and "Hot Topics in Property and Liability Insurance."
Public Contract Law
Real Property Law
Development of Private and Public Works
Loyola Law School (J.D.), Los Angeles, CA, 1978
University of California at Santa Barbara (B.A.), Santa Barbara, CA, 1975
U.S. District Court Central District of California, 1979
U.S. Court of Appeals 9th Circuit, 1979
Attorney Profile - Theodore L. Senet, Partner Page 2 of 2
Architects & Engineers (Co-Author), California Construction contracts, Defects and Litigation,
Continuing Education of the Bar, California 2009.
New California Law Will Require Major Changes in Construction Contracts (Co-Author),
CMAA Southern California Chapter newsletter, Legislative Section, Winter 2009
Nuts & Bolts of Modern Wrap-Up Liabilty Insurance, URS Corporation publication, Claims
Resourse, Fall 2008.
California Statewide "Green" Building Code New Challenges and Opportunities
(Co-Author), CMAA Southern California Chapter newsletter, Legislative Section, Fall 2008.
Insurance & Risk Management , Chapter Four and Surety Bonds, Chapter Five, CALIFORNIA
CONSTRUCTION LAW (HLK Global Communications, Inc., 2007).
1 GREEN MATTERS SM
NEW GREEN LEGISLATION, REGULATIONS AND OPPORTUNITES
Theodore L. Senet, Esq.
Gibbs, Giden, Locher, Turner & Senet LLP
2 California Green Legislation
3 Landmark Green Legislation
• Executive Order S-20-04
Signed in July 2004.
• California Global Warming Solutions Act (AB32) signed into law September 2006.
• California “Green Building Standards Code, Part 11 of Title 24, signed into law July
• SB 375 Transportation Planning, Sustainable Communities & Environmental review
amends the Government Code and Public Resources Code, signed into law September
4 California Global Warming Solutions Act (AB32)
• Reduce greenhouse gas emissions (GhG) to 1990 emission levels by 2020 (approx.
30% reduction from projected “business-as-usual” levels and a 15% reduction from
• The AB 32 Scoping Plan approved by the Air Resources Board on December 11, 2008
contains the main strategies California will use to reduce the GhG’s that cause climate
6 (AB32) What’s next?
• During 2009 ARB to draft rule language to implement plan and hold public workshops
on each measure.
• Jan 1, 2010 “Early Action Measures” to begin reducing GhG emissions to take effect.
• Jan 1, 2011 ARB continues rulemaking
• Jan 1, 2012 rules adopted by ARB take effect and are legally enforceable.
• Dec 21, 2020 Deadline for achieving GhG emissions cap.
California’s New Green Building Standards Code
• Bridges the gap between local government authority over land use and building
regulation and the state government goal of reducing greenhouse gas emissions
• Creates a structure for local, regional and state agency cooperation to reduce GhG
emissions from cars and light trucks through improved land use and transportation
11 SB375 Main Elements
1. Regional Target-Setting Process
2. Regional Development of Sustainable Community Strategies
3. Incentives for Land Use Projects That Can Help Reduce Emissions
4. Integration of Regional Planning Update Requirements
12 Local Green Building Ordinances in California
13 Local Green Building Ordinances
• More than 75 California cities and counties have adopted green building standards
• Local ordinances are permitted to be stricter than the new statewide Green Building
15 City of Los Angeles
Green Building Program
16 Standard of Sustainability
• Mandatory for non-residential projects >50,000 sq ft, high-rise residential (> 6
stories) or low-rise residential of 50 or more units effective November 1, 2008
• Applies to existing buildings if redevelopment construction costs exceed 50% of the
building’s replacement cost
• Requires a LEED Accredited Professional on the Project team to certify that the project
meets the intent of the LEED Certified level.
• The Program will apply to low-rise mixed use or residential effective May 1, 2009.
17 Standard of Sustainable Excellence
• Incentive program for projects that register with LEED, contract with an LEED AP, and
can demonstrate how the project will achieve LEED certification at Silver or higher
• Incentives include expedited services within the Dept of City Planning, and the Bureau
of Engineering, priority plan check processing, and service planning.
19 LEED Statistics
• Buildings account for 38% of carbon emissions in the United States.
• LEED Accredited Professionals as of December 31, 2008: 77,434
• Projects nationwide seeking certification: > 10,000
• LEED projects registered to local governments: 2319
• CA Projects certified (certified, silver, gold or platinum level): 279
• CA Projects registered to certify: 2003
20 LEED 2009
• Reorganization and enhancement of existing LEED Rating Systems for New
Construction, Core and Shell, Commercial Interiors, Existing Buildings, Operations &
Maintenance and Schools
• Change to certification exam sometime in 2009 with transition complete by September
• Projects registered under current system have option to upgrade to LEED 2009 during
21 Green Building Liability
22 New Design Standards and Guidelines
• 3D and 4D CAD Design
• BIM (Building Information Modeling)
• Web based project controls
• Design build systems and components
• Design build systems and components
23 Green Building Standard of Care
• What is the standard of care for a green building professional?
• Is it the same for an architect, engineer, or construction manager?
• Is a design professional with a special certification (e.g. LEED AP) held to a higher
26 Compliance Issues
27 Potential Green Building Liability:
• Failure to meet current and anticipated regulatory requirements for energy use and
• Failure to obtain LEED Certification or other third party certification standards
• Failure to meet performance specifications
Added Financial Risk and
Potential “Green” Liabilities
29 Legal Take Away(s)
• Be ready to take advantage of new building opportunities with revised “green”
contracts that reflect new or different “green” liability exposures
• Look for new property insurance products that offer expanded “green” building
• The trend to be “green” is here to stay and will build a new foundation for future
building codes. Get familiar with the basics now to avoid a gap in your knowledge as
the industry changes.
30 Attorney Profile