“Going Green” without the Green Light

How the Government is Unconstitutionally Delegating Lawmaking Powers for Environmental Sustainability  

By: Samantha Ruiz

In the United States, 38% of the nation’s carbon dioxide emissions and 67% of its electricity usage comes from buildings. In an attempt to create environmental benefits, legislative power, state and local governments are quickly enacting policies that encourage environmental sustainability and energy efficiency through targeted buildings and infrastructure. However, in a rush to reach set goals many governments are implementing laws that lack a solid constitutional basis.

To understand this complex issue a little better, green building laws that require developers to comply with sustainable construction rating systems created by the United States Green Building Council (USGBC), a private non-governmental interest group is a perfect example of how we are developing sustainable construction without recognizing the democratic values that underlie the American governmental system.

Currently, the USGBC creates standards for its rating system and then changes these standards without gaining approval from any governmental body, which means they are changing the legal rules that private citizens and constructors must comply with.

As unwarranted as this current system stands, it is clear that America is in the middle of a green building revolution, which is the path we need to continue on. By 2015 it is expected that more than 173.5 billion dollars will be invested towards green building products and services as a result of the grassroots lobbying that has played a significant role in giving our movement mainstream attention.

However, no other private non-profit organization has been more influential than the USGBC when it comes to certifying buildings by their standards. By creating the LEED (Leadership in Energy and Environmental Design) rating system, which is internationally recognized through four ratings ranging from certificate levels to platinum, the USGBC inspired more than 30 states to enact some form of green building standards within ten years.

A huge conquest for the environmental movement, however, imperfectly executed. Although the statutes are created to establish penalties and incentives for failing to achieve LEED certification, the problem with these statutes is that the LEED rating system is created and updated by a non-governmental organization, the USGBC. Which in other words, give the USGBC the power to change the law. Since LEED standards will continue to shift with new advances in technology and science, many states and localities have given USGCB that power, which is not only bad public policy, it is also unconstitutional.

Members of the USGBC who create LEED standards are not public officials, not elected by the public, appointed by an elected official or employed by the government in any way. To be blunt, LEED Steering Committees have no accountability to the general public whatsoever. Their mission is to update LEED certification, not look out for the best interest of the people. Which in short, gives the USGBC unchecked public powers that completely go against the purpose of democratic governance.

What needs to happen for green building policies to be implemented democratically is for state legislatures to adopt specific versions of standards into law without transferring lawmaking power to the private sector, similar to passing a law that a concerned citizen drafted. Another great way to ensure good public policy is for governments to use LEED as a model and altering those standards to better reflect the interest of the people. This process creates statutes that use the expertise of the USGBC in a participatory process that promotes environmental sustainability and strengthens the future of the economy.

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  1. USGBC, http://www.usgbc.org , April 26th, 2011
  2. Following Industry’s LEED, Adoption of Private Green Building Standards, Sarah B. Schindler, 2010
  3. LEED Rating System Development, USGBC, http://www.usgbc.org , April 26th 2011
  4. Private Laws undercut Democracy, Sacramento Bee, August 6th, 2007
  5. Green Building Market to hit 173.5 billion by 2015, Envtl. Leader, July 1st,  2010, http://www.environmentalleader.com

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