Deborah Curran is the Hakai Professor in Environmental Law and Sustainability at the University of Victoria Faculty of Law.
This post is adapted from a forthcoming book chapter Deborah Curran, “Green Developments: New Entanglements of Property, Planning and the Public Interest” in Anneke Smit and Marcia Valiente (eds.) Public Interest, Private Property: Law and Planning Policy in Canada (Vancouver: UBC Press, forthcoming 2015).
Buildings have long been recognized as a key sustainability issue given their prevalence, resource intensity and, in recent years, disposable nature. In the past decade the operation of buildings has come under scrutiny as a significant greenhouse gas (GHG) emitter, responsible for more than 40 percent of global energy use and emitting 33 percent of GHGs irrespective of their location in the Global North or South. In Canada, buildings account for 12 percent of emissions even though owner/managers have undertaken energy retrofits on over 40 percent of floor space since 2005, and in many cities generate more than 50 percent of total GHG emissions.
Given this ecological footprint and the already well-regulated public safety aspect of buildings in many countries, creating building standards that decrease the environmental impact of building construction, operation and demolition would appear to be a simple legal fix. However, although there have been significant improvements in building codes at the provincial and U.S. state levels, innovation in greening buildings is flowing primarily from the private sector, professional organizations and local governments. Building regulators are often lagging behind what the industry is capable of achieving for water and energy efficiency, GHG-neutral buildings, and even living buildings that have a net positive effect on resource generation.
Compared with buildings constructed to the standards established by most building codes a “green” building uses less energy and water to operate, and is built with materials that have less ecological impact or better health outcomes for occupants. Hallmarks of green buildings are superior insulation, low flow water fixtures, and energy efficient systems, appliances and fixtures that result in upwards of fifty percent reductions in water and energy use. They can also increase productivity in the workplace, and, except when meeting the highest green standard, are comparable in cost to conventional construction. Applied at a neighbourhood scale, green development can contribute to municipal-wide goals for smart growth, creating compact complete communities where access to multi-modal transportation networks and affordable housing respond to residents’ needs in all stages of life. Attached units in buildings located in a compact urban form that include shops and services located near transit are more energy efficient than single detached housing, reduce the need for single occupancy vehicles and significantly decrease GHG emissions.
Even through the downturn in the construction industry after the subprime mortgage collapse in the U.S. in 2008, the awareness of green buildings has proliferated. The most compelling evidence of the strength of this interest is the number of industry-lead registrations and certifications of green buildings. For example, the Leadership in Energy and Environmental Design (LEED) high performance building rating system, created by the United States Green Building Council, is used in 140 countries around the world. Since 2004, in the United States there are over 93,000 bedrooms in LEED certified buildings, with Brazil having 871, China 1961, and India 1928 registered and certified projects. In India alone there are 833 million square feet of LEED certified floor space. The 1633 LEED certified projects in Canada have reduced carbon dioxide emissions by 512,672 tonnes and saved 5.6 billion litres of water.
Following industry-lead green building innovation are programs of private organizations intended to stimulate changes in professional or building management practices. For example, Architecture 2030 is a challenge to the global architecture and building communities to embrace energy, fossil fuel and greenhouse gas emissions reduction targets of 60 percent below regional or country averages. At a building-specific level the Real Property Association of Canada is promoting a “20 by ‘15” energy target for office buildings. The goal is to reduce energy use per square foot of rentable space to 20 equivalent kilowatt hours per year by 2015. Even law schools are jumping into the action at the behest of university sustainability policies with Cornell and the University of British Columbia producing the two most recent new high performance buildings for law schools.
Finally, municipalities are solid supporters of green building as they are the direct beneficiaries of taking a demand management approach to building deconstruction and the use of municipal services such as water. Several large cities have created their own green building programs and standards, such as Toronto’s Green Standard, specific to different building types, that must be met in applications for planning approval. The City of Vancouver will be requiring all new one and two-family homes to be carbon neutral by 2030.
With this critical mass of activity and innovation in the public interest from those who generate buildings – the building industry – and those that implement building standards – local governments – one would expect comparable activity in the development of green building regulations. However, most green building achievements have been voluntary and undertaken without regulatory backup. In many areas building codes still lag behind basic green building requirements, and senior government law reform typically has not kept pace with standard green building practice. While some municipalities, as the implementing authority for building codes, would like to require all buildings to adhere to a green building standard that exceeds the current building code, state and provincial governments retain control over minimum building regulations to maintain an even playing field across all local jurisdictions. Most municipalities, except for some, like the City of Vancouver, that have augmented building jurisdiction, are prohibited from exceeding the standards established by senior government.
Take British Columbia as an example. Section 692 of the Local Government Act, RSBC 1996 c 323 provides authority for the provincial government to establish a building code with standards governing the construction, alteration, repair or demolition of buildings, and this building code applies to all regional districts and municipalities. The British Columbia Building Code Regulations BC Reg Nos 216/2006 and 264/2012 establish these standards. In addition, under sections 693.1(2) of the Local Government Act and 9 the Community Charter, S.B.C. 2003, c 26, local governments may seek additional authority to regulate buildings by bylaw if the bylaw is approved by the Minister, enacted under a regulation, or enabled by agreement between a local government and a provincial Ministry. This additional authority is contemplated in the Buildings and Other Structures Bylaws Regulation BC Reg No 86/2004, which, however, states that bylaws may not establish standards that are additional to or different from those set out in the Building Code. Therefore, except with express permission of the Minister or by agreement, local governments must adhere strictly to the provincial regulations.
In this context, the platinum rating under the LEED certification for the world-renowned Dockside Green, located in the City of Victoria, and that set a world record for high performance building, was not required by regulation. The additional effort to produce all of the heat energy needed on the site, treat all the wastewater, and remediate the soil contamination, resulting in buildings that use 65 percent less water than in a conventional building, is outside of the regulatory standards for buildings and infrastructure.
The good news is that green building innovation is largely possible under existing building code regulation. The challenge is to accelerate law reform to make green buildings the new norm for the industry that has clearly proven that high performance buildings are achievable. With all stakeholders onside, retooling state and provincial building codes to more effectively reduce the GHG emissions from resource use within buildings should be a relatively easy sustainability fix.