Judge Puts City's Green Building Code on Hold

ALBUQUERQUE, NM - "We are evaluating the best route for the city of Albuquerque to take to insure the many progressive provisions of our green building code that were not subject to the litigation can be implemented," Albuquerque Assistant City Attorney John E. DuBois said in a statement provided to GreenerBuildings. Lead counsel for the plaintiffs did not respond to requests for comment. However, John Richardson of Gorman Industries, one of the firms that filed suit, told the Albuquerque Journal, "I'm very pleased with the judge's decision. I hope we can get this worked out with the city, so we can save energy and make it a reasonable plan."

According to the U.S. Green Business Council, 103 cities, 34 states and 12 federal departments or agencies have green building policies for government structures; 10 states have eco-friendly construction standards that apply to a range of non-public structures and 69 cities have green building measures on the books for various types of non-government construction.

"Part of the difficulty in generalizing about green building ordinances is that with the rapid proliferation of green building ordinances across the country on an ad hoc basis, they vary significantly from jurisdiction to jurisdiction," said D'Arelli, who co-chairs the Green Building and Sustainability Group for Greenberg Traurig, in a statement to GreenerBuildings. "They run the gamut from those that merely incentivize green building practices with expedited permitting, fee reductions, density bonuses and the like, to those that mandate compliance with third-party rating system requirements, and those that go so far as to mandate minimum efficiency standards."

"In light of the wide range of local regulations on the books, whether or not the ruling in the Albuquerque case will foreshadow problems for a particular local government depends on that jurisdiction's regulatory scheme," D'Arelli wrote. "Those that are voluntary in nature, even if the incentives are tied to standards that perhaps could not otherwise be imposed, are certainly less problematic as governments can often get in a bargained-for exchange (e.g., incentives in exchange for green building commitment) what they cannot get by regulatory requirement.

"I think we will definitely see more challenges to mandatory green building regulations over time based on a variety of theories, including preemption, as trade associations and industry groups seek to protect the interests of their members. Often individual builders, developers or companies do not want the negative publicity or expense of single-handedly mounting challenges to perceived overreaching regulations, and they choose to live with the regulation until a trade association or industry group is willing to mount the challenge."