The Breathing Skyline: Federal and State Efforts to Reduce Building Energy Consumption and Their Legal Implications
By Tianlu Zhang, Staff Contributor
The idea of “the environment” is two-folded. While people intuitively think of the natural environment, it is the man-made environment that dominates people’s life – Americans on average spend ninety percent of their time indoors. Yet the man-made environment has generated severe negative impacts on the natural environment – large-scale energy consumption, pollutant emission and urban heat island effect that results from the high concentration of urban roads and buildings. In the United States specifically, residential and commercial buildings consume over fifty percent of all energy consumed in the U.S. and seventy-three percent of generated electricity. Energy consumption in buildings costs over 390 billion dollars per year.
Regulation of buildings’ environmental impacts is traditionally reserved to the state’s inherent police power. Various forms of green building initiatives have been enacted at the state and local level. Congress has made efforts to federalize and unify green building codes. However, a mandatory nationwide building code could raise constitutional concerns because of the potential intrusion into the state’s police power. For example, in 2009, the proposed wide-reaching ACES passed the House but was denied by the Senate. Even if it passed Congress, chances are it would probably not have survived judicial review. Problems arise even with successfully enacted federal legislations. In 1975, Congress enacted EPCA and subsequently amended it with NEPCA of 1978 and NAECA of 1987. Under the federal preemption doctrine, these Acts would not allow states “to prescribe their own regulations unless they were more stringent than federal standards, or if the Secretary found that a state had a significant state or local interest justifying its regulations and the regulations would not unduly burden interstate commerce.”
Nonetheless, the federal government has taken a leading role (though in an advisory capacity) in combatting the negative impact that the man-made environment imposes on the natural environment by establishing mechanisms between the two and to make them interact positively with each other. In 1998, EPA, joining force with architects and urban planners, launched the Urban Heat Island Pilot Project in five U.S cities: Chicago, Houston, Sacramento, Baton Rouge and Salt Lake City. Architects developed and experimented with the concept of a “green roof” and incorporated them in the larger-scale urban structure.
A green roof is a sustainable roofing system that relies on rooftop vegetation to achieve natural cooling effect, therefore reducing energy consumption associated with HVAC. Moreover, rooftop vegetation effectively prevents stormwater runoff in additional to its aesthetical value.
Chicago began constructing its City Hall rooftop garden in April 2000 after 1.5 years of planning. In total, 20,000 herbaceous plants consisting of 156 varieties, 112 shrubs, and 37 vines were planted in a special blend of compost, mulch, and lightweight absorbent materials occupying 20,000 ft² of the 38,800 ft² roof. Rainwater is collected from 2,500 ft² of penthouse space and stored in holding tanks for periods without rain. The project produced electricity savings of 9,272 kilowatt-hours per year and natural gas savings of 7.372 therms (1 therm is approximately equivalent to the energy of burning 100 cubic feet of natural gas) per year. In addition, the project has brought cooling effect that amounted to 730% of what was needed to eliminate the cooling load of the City Hall roof. The project has brought further benefits to the city including reduced storm sewer system load, improved air quality, increased wildlife habitat for birds and butterflies, etc.
Green roof has generated widespread international influence, especially in Europe. Rooftop gardens cover one in every ten buildings in Europe. In May 2015, France, joining Germany and Switzerland as predecessors in modern green roof movement, mandated green roof for all new buildings in commercial zones. In the U.S., in July 2010, Steven Chu of DOE announced a series of initiatives aimed at implementing cool roof technology in DOE facilities. Obama’s Executive Order, “Planning for Federal Sustainability in the Next Decade,” issued on March 19, 2015, could be another major effort at the federal level in combatting the negative environmental impact associated with urban development and building energy consumption. Specifically, the executive order expressly asked the federal government to cooperate with state and local governments to implement green infrastructures on federal premises. Nonetheless, green roof, among other architectural innovations designed to combat negative environmental impacts, still face legal impediments in the U.S. First, local zoning ordinance interfere with the implementation of green roofs by restricting the height, shape and material of roofing structures. Additionally, although green-roof legislation aiming to mandate the implementation of green roofs has been proposed in several states, none has been officially adopted because of the high implementation and maintenance costs that largely offset the benefit. Moreover, lack of copyright protection for architectural designs, coupled with the inherent difficulty in detecting and defining copyright violations given the high level of technical complexity and aesthetical richness involved in architectural designs, probably further disincentivizes architects from devoting full vigor and enthusiasm to the development of green roof.
 Danielle Changala, Legal Impediments to Sustainable Architecture and Green Building Design, 14 VT. J. ENVTL. L. 611, 613 (2013)
 Id. at 614.
 Id. at 619.
 4. Rob Taboada, How Buildings Will Save the World: Using Building Energy Regulation and Energy Use Disclosure Requirements to Target Greenhouse Gas Emissions, 66 HASTINGS L.J. 519, 541 (2015)
 Changala, supra note 1, at 622.
 EPA, Urban Heat Island Pilot Project: Chicago, http://www.epa.gov/sites/production/files/2014-08/documents/chicago.pdf, at 8.
 Id. at 9.
 Juliya Litichevskaya, Reviving the World Wonder: Why Rooftop Gardens Should Cover Urban Landscapes, 37 RUTGERS COMPUTER & TECH. L.J. 58, 78 (2011).
 Nicholas Korody, France Mandates “Green Roofs” for all new buildings, ARCHINECT (May 25, 2015), http://archinect.com/news/article/128025752/france-mandates-green-roofs-for-all-new-buildings.
 Michael J. Bauer, Potential Legal Implications of “Green” Roofs, Construction Briefings No. 2011-1.
 Exec. Order No. 13693, 80 Fed. Reg. 15869 (March 19, 2015), available at https://www.whitehouse.gov/the-press-office/2015/03/19/executive-order-planning-federal-sustainability-next-decade.
 Id. § (3)(f)(iv).
 Bauer, supra note 15.