by Phil Crone, Director of Government Affairs and Green Building Programs

A few weeks ago, I wrote that the North Texas Municipal Water District is considering a move to Stage 4 water restrictions (their highest contemplated level). Such a move would have a significant impact on the 1 million customers that get their water from cities that the District serves.

In furtherance of Stage 4 restrictions, a city may prohibit the irrigation of new landscaping using treated water, prohibit permitting of private pools, and initiate a rate surcharge for water use that exceeds normal rates according to the District’s Model Drought Contingency Plan. The plan, which was finalized in 2008, contains model ordinances for cities to adopt. Cities served by the District include Allen, Frisco, Garland, McKinney, Mesquite, Plano, Richardson, Rockwall and Wylie.

With the possible move to Stage 4 on the District’s Jan. 26 agenda, Mother Nature came to the rescue (unconfirmed rumors say that it was actually Jerry Carter’s rain dance that caused the heavens to cry uncontrollably). Whatever it was, it sure made a difference. However, there is still a chance that the coming months leave us high and dry once more.

The recent rain dropped between 4 and 5 inches on nearly all of the area, raising lake levels from 3 to 5 feet and replenishing about 10 percent of capacity in most places. In fact, Lake Grapevine, Lake Arlington and Joe Pool Lake are now completely full! Lewisville Lake and Lake Ray Hubbard are almost 90 percent there. While that is great news for others around the area, Lake Lavon is the one to watch for those served by the North Texas Municipal Water District (NTMWD). Although Lavon was raised 3 feet and replenished more than 10 percent of its capacity, it remains only about 64% full (its highest level since Aug. 20).

If you’re still reading this you’re probably asking why Lavon is still so low. That’s because this water restrictions issue has as much to do with zebra mussels as it does with the lack of rain. For some time now, the NTMWD has been fighting with one hand tied behind their back. Zebra mussels have rendered their secondary water source, Lake Texoma, off limits. This is why the NTMWD is on Stage 3 while other areas like the City of Dallas are only on Stage 1.

Zebra mussels are an invasive species that infiltrated the Great Lakes by way of ships from Europe. Far away from their natural predators, they have ferociously reproduced and wreaked havoc on the ecosystem of just about every lake they make their way into. As Dan Patrick used to say, “You can’t stop them; you can only hope to contain them.” That’s precisely what the federal government is doing by preventing the NTMWD from using its secondary supply of water.

Not knowing what Mother Nature (or Jerry Carter) has in store for us, we need to plan for the worst and hope for the best while gathering the facts that will help policy-makers make educated decisions on how to encourage water conservation. Instead of preventing the installation of new landscaping (and possibly new homes), builders can utilize drought-tolerant turf such as Bermuda or Zoysia. Although a couple weeks of watering is needed for the turf to take hold, it will emerge intact after long periods with no water. The right turf, combined with native plants, can cut a home’s water use in half. Moreover, the newer fixtures and plumbing layouts in today’s homes are up to 30 percent more efficient than typical existing homes.

Just like with energy, the smart money on water conservation lies in existing homes and buildings. The blueprints for successful municipal initiatives are all over the nation. Cary, NC, a fast-growing Charlotte suburb, reduced its retail water production by 16 percent through measures such as adding rain sensors to existing irrigation systems, providing free audits to assess water savings strategies with residents and public awareness campaigns. Closer to home, Dallas has had a great deal of success with its New Throne for Your Home program. As the name suggests, Dallas Water Utilities customers get a rebate voucher to obtain a low-flow toilet. The program saves the city 158 million gallons of water annually.

With the right information and proven strategies, we can do our part to overcome the zebra mussel drought. A little rain dance every now and then won’t hurt either. Thanks, Jerry!

Most houses have all sorts of exhaust appliances (bathroom fans, clothes dryers, wood stove, power vented water heater, etc.), but kitchen range hoods are typically the most powerful, pulling between 100 to 1200 cfm of air out of the house. As Isaac Newton told us in elementary school, for every action there must be an equal and opposite reaction. As such, every time air is removed from the house, an equal amount of air must enter.

Typically, this air enters through gaps and cracks in the building envelope. However, the concern now is that the combination of homes getting tighter and hood fans getting more powerful will lead to bigger problems than impromptu toilet flushing. Specifically, that problem would manifest in the form of air back drafting through water heater flues and through wood burning chimneys, bringing carbon monoxide with it when the range hood is activated.

In an attempt to address this issue, the 2009 IRC requires that range hoods pulling more than 400 cfm need to be provided with approximately the same amount of makeup air through means of an automatic damper that operates as soon as the hood is activated. Though this provision is well-meaning, the cure may be more harmful than the disease in this instance.

For starters, the makeup air has to come from the outside, which in our area usually means that air is hot and humid or nice and cold like it is now. That places a greater load on HVAC systems, and could result in systems being oversized in their design (a classic building science no-no), and may make the house an uncomfortable place to live, at least when the range hood is running.

I am really not sure why 400 cfm is the magic number chosen by the code. I have not been able to find a building science article explaining how the IRC drafters came up with it. The cynic in me says it is because most range hoods on the market are rated higher than 400 cfm. Assuming though that 400 cfm is indeed the magic number, the code allows you to have a 400 cfm fan with no makeup air.

However, if you have one rated at 600 cfm, you would need to provide 600 cfm of makeup air from the outside. Again, if 400 cfm is the magic number, it would seem to me that the code should require only 200 cfm for a 600 cfm fan and so forth.

Manual dampers (long recognized by the code) do quite well at introducing fresh air into the house without the added expense and impracticality of an automatic system. Additionally, sealed combustion appliances and fireplaces have their own air supply and are not at risk of back drafting dangerous gases into the house.

In the coming months, the HBA will be discussing this code provision and possible solutions that would provide greater flexibility with local code officials. We will also make this a topic of discussion at the North Central Texas Council of Governments’ Regional Codes Coordinating Committee that we serve on. That group has begun evaluating the 2012 codes, which will provide an opportunity for the industry to propose a long-term solution.

These changes will come in two phases, ENERGY STAR Version 2.5 and 3.0. The first phase will include the controversial move from a consistent HERS performance threshold for all homes to a variable target for each individual home.

In other words, one home may qualify with a HERS 78, while another may need a HERS 70 in order to meet the new program requirements. Much of this will depend on the home’s size; larger homes will be subject to a “size adjustment factor” (or penalty depending on who you talk to).

Version 2.5, effective in April, will also require the Air Sealing and Air Barrier sections of the new Thermal Enclosure Checklist. The more rigorous HVAC and Moisture Management checklists will roll in with Version 3.0 in January 2012.

Visit EnergyStar.gov and click on the “new homes” tab to find out more about the changes this paragraph only begins to explain.

This is the EPA’s plan as of the time of this writing so you may want to check that web site often and watch the HBA’s Punch List newsletter for any updates. Originally, Version 3.0 was supposed to be effective this month and there was no such thing as Version 2.5.

In fact, some raters just recently received the updated RemRate software and have not had adequate time to work builders interested in meeting the new ENERGY STAR requirements. As such, there is a good deal of uncertainty as to what the program will evolve into and what the market acceptance of it will be. This combined with the fact that new challenges could make it illegal for a city to mandate the program, creates the need to find an alternative at least for the time being.

Here are the alternatives that the GBT board established. These will become effective for the GBT program in April.

Select one (1) of the following energy efficiency strategies:

1. Obtain ENERGY STAR Version 2.5 certification

2. Achieve fixed HERS Index of 75 or below (as proven by RemRate software supporting ENERGY STAR Version 2.0) and obtain compliance with Chapters 3 and 5 of the ENERGY STAR Version 3.0 Thermal Enclosure System Checklist

Essentially, starting in April, a GBT builder can either go all out with the new ENERGY STAR requirements or, in the alternative, they can hit a straight HERS Index of 75 as proven by the software that supports Version 2.0, which we all have come to know and love. Like many builders, GBT wants to stick with ENERGY STAR, but must consider market realities along with the significant (and potentially unforeseen) paradigm shifts that Version 3.0 and, to a lesser extent, Version 2.5, will usher in.

If I had to guess, some of you will think this move does not go far enough, others will think it goes too far and everybody else will probably be confused to some extent. This illustrates the proverbial tightrope that program leaders are trying to walk and the work to educate and inform that lies ahead. Also ahead is a larger effort to make comprehensive changes to the entire GBT protocol. Since this is first and foremost your program, all HBA members will receive an opportunity to submit written comments and recommendations throughout this process.

A couple years ago, while I was wondering if I would ever finish law school, I was also working at the HBA as we were dealing with the City of Dallas’s proposal for a green building ordinance. At that time work and school shared little in common except for their collective deprivation sleep, healthy eating habits, and personal time. I still wonder how I made it through.

Anyways, the point of the story is that right before the ordinance was ready to pass, it occurred to me that all this federalism stuff I was learning in Constitutional law may actually be applicable to the regulation of green building. Specifically, in cases where the federal government set standards for something, I wondered if a local government could impose more stringent standards above and beyond the federal minimum.

With this in mind, I sent a letter to then council member Mitchell Rasansky in April 2008 conveying our concerns that the City of Dallas could not legally mandate that shower head and faucet fixture flow rates be more stringent than the rates called for by the federal government. It seemed like a question worth asking, but I knew there would not be an answer until somebody tried it out in court. Well, the answer may have come last month in the AHRI v. City of Albuquerque case.

In AHRI, a federal court judge ruled in favor of a motion for summary judgment filed by the plaintiffs who represented HVAC manufacturers, distributors, and installers. The judge agreed with the HVAC industry’s claim that since the federal government requires all air conditioners manufactured in the U.S. to be at least 13 SEER, a city or state cannot come along and mandate a more stringent requirement. In other words, that 13 SEER unit should be able to be sold and installed anywhere in the United State. Cities like Albuquerque, in this case, could not prevent this. More detail on the background on AHRI and the issues considered can be found in the March edition of this column.

Let’s use the rest of this column to connect some dots.

• A federal court judge granted summary judgment on the issue that a city cannot, as part of its green building ordinance, mandate SEER ratings that go beyond the federal minimum of 13. For the non-legal types out there, this means the case was so much of a slam dunk that, in her opinion, a jury did not need to waste their time considering the issue further.

• Many cities in North Texas and in other regions currently mandate ENERGY STAR certification for new homes and plan to continue this mandate into the foreseeable future.

• The LEED for Homes program requires, and will continue to require, that all homes also be certified to ENERGY STAR.

• Beginning in 2011, the EPA will require, at least in our climate area, that homes certified to its ENERGY STAR program have at least 14.5 SEER air conditioners.

• 14.5 SEER is greater than the federal minimum requirement of 13 SEER that the court in AHRI said cities could not exclude by mandate.

Therefore, it could be illegal for a city to mandate ENERGY STAR and/or LEED for Homes. A mandate of either of these programs in 2011 or beyond would present a similar fact pattern as AHRI.

While AHRI is the first case to address this issue, it is likely not the last. Appeals of the summary judgment ruling are possible, and probably expected.

However, I hope I have illustrated at least one of the potentially far-reaching applications of this case. This and other aspects of AHRI that I did not mention here may begin to frame boundaries of state and local green building regulations in the very near future.

What if the codes required your home to achieve a HERS Index of 50 or below? If you are not building to this level now, could you be in five or six years? You may not have a choice.

A couple weeks ago I was listening to Sam Rashkin, the EPA’s National Director of ENERGY STAR for Homes, speak at the NAHB National Green Building Conference in Raleigh, NC. As Mr. Rashkin ran through a litany of changes that the program would soon undergo such as Grade 1 insulations ratings (no batts), extremely stringent HVAC design layouts and testing, a new water management checklist, and an overall goal to increase a home’s performance by another 15 percent, I began to wonder how many builders would continue with ENERGY STAR once these measures became effective next year. Even some of the more advanced green builders would have trouble getting to this level given the current state of the economy and the rampant disregard for the value of efficiency and sustainability in the appraisal process.

It’s all about to be code. The 2009 International Energy Conservation Code (IECC) and Chapter 11 of the 2009 International Residential Code (IRC) are about 15 percent more energy efficient than the codes we currently use. This is also about the same performance level currently required by ENERGY STAR, which is another reason why the EPA is moving ahead. But, that is only the beginning.

Much of Mr. Rashkin’s presentation about the next version of ENERGY STAR could be recycled into a presentation about the 2012 IECC. Its current draft form at the International Code Council (ICC) seeks to achieve 30 percent more energy efficiency than current code. That would be roughly what is today a HERS Index of 70.

Furthermore, an early draft of the 2015 IECC calls for a 50 percent energy efficiency improvement. That would be about the equivalent of a HERS 50! I only know about a dozen builders who reach this level of energy efficiency on a consistent basis; however, this could be our code in five or six years.

In a more immediate effort to address all other aspects of green construction including energy efficiency, the ICC is working on the International Green Construction Code (IGCC). The ICC’s description of this document explains its purpose as follows, “because it was written in mandatory language, the IGCC is poised to produce environmental benefits on a massive scale: a scale impossible to attain with purely voluntary green building programs.” At first, the IGCC was only aimed at commercial construction, but it has since come to incorporate, by reference, the NAHB’s ICC-700 program (also known as The National Green Building Standard).

“The reference to the National Green Building Standard (NGBS) essentially means that any community that adopts the new green construction code for commercial building would also be adopting the NGBS for home construction. It is our hope that the reference to the NGBS will be removed when the final draft version is approved” says Paul Cauduro, Director of Codes and Standards for the Texas Association of Builders (TAB). Paul has a very insightful article that provides additional perspective in this month’s Texas Builder Magazine.

A mandate seems to be the ICC’s intended goal. Recently, their CEO Richard P. Weiland said, “We talked to communities who indicate that their voluntary green building programs reach only, but an important, 30 percent of the built environment. This means that there is a clear need for a regulatory tool to establish a baseline to help jurisdictions meet their sustainability goals.”

Given the paradigm shifts that will come every three years in the energy code development process, additional green building mandates are clearly not the answer. Many aspects of water efficiency are currently regulated by federal mandates that will only become more stringent. Also, indoor air quality will already be addressed by the IRC and IECC in order to mitigate any health and safety concerns that result from requiring a tighter, more efficient, building envelope.

The International Green Construction Code as it would be applied to residential construction via the NGBS is not really a code at all, it is just another rating system where you scan through various categories trying to achieve enough points to reach a threshold that the makers of the program deem worthy for your home to receive recognition. Codes have neither the flexibility nor the arithmetic of green rating systems. Instead they simply tell you what you have to do and reference standards that tell you how to do it.

The NGBS is also beginning to become antiquated. It was last open for public comment in early 2008 and, as such, it references 2006 code provisions. Therefore, it will not be a workable solution as a green building program or, let alone, a code by the time the IGCC is introduced in 2012. In the IGCC’s most recent public comment period, the HBA and TAB citied this as one of many reasons why the code’s reference to the NGBS needed to be removed.

This viewpoint was echoed by the U.S. Green Building Council who also joined the associations in citing the fact that many local and regional residential green building programs are already serving their market-driven purpose. NAHB has yet to weigh in on this issue. The certification processes, scoring tool, and supporting materials for the NGBS are promulgated exclusively by the NAHB’s Research Center, which is a “for-profit” organization.

With all of these changes becoming part of our codes, one may ask if this the beginning of the end for green building programs? My opinion is that it is not. However, I do believe that their role will change significantly and will become even more important in the near future.

Green building programs will have to undergo an update process just like ENERGY STAR to stay ahead of the code changes every three years. More importantly, they will serve as a primary educator for builders wanting to stay ahead of the regulatory push by showing them how to comply with tomorrow’s code requirements.

Hopefully, policy makers will see that high performance (green) building is now firmly entrenched in the evolution of our building codes and will realize that green building programs are no longer needed as mandates. We will drive that point home at the state and local level as part of your association’s ongoing commitment to creating and maintaining a competitive business environment for its members. As always, the success of this effort will depend on the active involvement and insights of our members.

A U.S. District Court in New Mexico thinks they could. In AHRI v. City of Albuquerque the court granted a preliminary injunction stopping the city from enforcing its green building ordinance and sending them back to the drawing board. Now it may only be a matter of time before this case makes its way to Texas and perhaps across the country.

The reason why is that the city was attempting to require HVAC equipment that is more efficient than the minimum standards set by the Department of Energy. Thus, the plaintiffs (HVAC contractors, suppliers and manufacturers) are alleging that the ordinance is preempted by federal law; specifically, the Energy Policy and Conservation Act of 1992.

Preemption is the doctrine by which a state (or local) law is invalidated because it conflicts with federal law. It stems from the Supremacy Clause of the U.S. Constitution, which declares the laws of the United States as the “supreme Law of the Land.” Courts apply this doctrine by trying to find evidence of Congress’s intent to displace state and local requirements and then determining the scope and size of what they intended the preemption to be.

In the context of green building there are federal requirements for HVAC SEER ratings, water heater efficiency and fixture flow rates among other things. Congress put these in place for their environmental benefits, but also to establish consistency in the marketplace for manufacturers, suppliers, and contractors realizing that many of them operate nationwide and need this uniformity. Therefore, you can see the policy argument against a city that would try to mandate more restrictive requirements.

The court in New Mexico was clearly troubled by the City of Albuquerque’s attempts to mandate 14 SEER equipment above and beyond the 13 SEER federal minimum. Indeed, ordinances like this would be the easiest to defeat under federal preemption doctrine. A local example would be the City of Dallas’s ordinance, which requires faucet and showerhead flow rates that go beyond federal requirements.

Even more interesting, to me at least, is that the court had similar concerns with the Albuquerque ordinance’s attempts to mandate a 30 percent above code energy efficiency achievement while offering of a choice between the LEED for Homes program and the local HBA’s Built Green New Mexico. These requirements are akin to what you see in almost every green building ordinance across the nation.

From working with energy efficiency software and green building programs such as Green Built Texas, many of you know that they offer a variety of routes for compliance. The court recognized this and also that it was conceivable for someone to use equipment that met the federal minimum and still be 30 percent above code and comply with green building programs. However, “conceivable” was not enough to satisfy the court who noted that it would be cost prohibitive for someone to try to comply using the federal minimums; presumably due to the need for increased insulation, more efficient windows, or other design or performance trade-offs.

While this case is very compelling and I am certain we have not heard the last of it, it needs to be noted that it has yet to be adjudicated on the merits. The plaintiffs have only secured a preliminary injunction meaning that the court feels they have a likelihood of success on the merits and it would be more beneficial for the ordinance not to go into effect until the litigation progresses. At this time, the city is revising their ordinance, but this case will likely continue forward with legal experts around the nation now interested.

As the federal government begins to take on a larger role with regards to building codes, specifically energy efficiency, the application of this case may expand as well. While we are unlikely to see a carbon cap and trade bill anytime soon, we could see an energy efficiency bill with federal building code requirements this year. This would expand the field occupied by the federal government from individual products to the entire building code. While such a bill is certainly not a good thing for our industry, if you extend the logic of the court in this case, it may render cities completely unable to impose even more rigorous above-code requirements.

Depending on how it is decided, the case could do this on its own. Time will tell if this is a landmark case that opens the floodgates of green building litigation or if it is just a flash in the pan of an unsettled area of the law.

What can my association do for me? That question is asked a lot these days as the HBA’s role as an advocate and an educator takes on the utmost importance in these uncertain times. For two days in November, Green Built Texas’s Project Zero event provided a definitive answer.

The first day began at the Lewisville Convention Center as members (and many non-members) piled into the room for a day’s worth of training from nationally-renowned building science expert, Justin Wilson. Justin was one the founding fathers of the Built Green Colorado program, which provided us with many of the resources that led to the establishment of Green Built Texas. He now runs his own consulting firm and is on the speaking circuit, this time being brought to North Texas courtesy of the Canadian Mortgage and Housing Corporation.

Certainly, having a Canadian company as a partner for an HBA event in Dallas will raise some eyebrows. Rest assured though that our neighbors to the north’s model for building science training is better than the one they have for health care (and a lot less expensive).

Throughout the day, Justin covered the whole gamut of building science topics including moisture management, thermal barriers, pollutant control, material choices, and HVAC improvements. My impression was that this built upon the foundation established by the NAHB Certified Green Professional training. I especially liked how he equated the principles he spoke about to external, real world issues such as construction defects, legal liability, occupant comfort, sales tips, and cost savings.

The second day of the event used the TimberCreek Zero Energy House as the venue. As the name implies, this high-performance home built by GreenCraft Builders, LLC and designed by William Peck and Associates generates more electricity than it pulls from the grid during any given year. Thanks to a variety of advanced features and building techniques including 9kW of solar power on the roof, the TimberCreek house represents the eventual future for the home building industry. These days it provides a plethora of learning opportunities for all builders looking to enhance the performance of the homes they construct.

These opportunities are precisely what Project Zero focused on throughout the second day. Attendees were treated to mini-seminars focusing on solar electricity, HVAC, solar water heating, HERS rating strategies, rain water harvesting, and efficient hot water delivery.

Topping it all off was a keynote speech by EPA National Director of ENERGY STAR for Homes, Sam Rashkin. His presentation focused on the upcoming changes to ENERGY STAR. This information is both relevant and timely as the program, which is utilized in 40 percent of all Texas homes and several municipalities, will change significantly starting in 2011. I will cover the specifics of what is to happen and what that means for builders wishing to stick with the EPA’s program, Green Built Texas’s evolution, and regional policies in a future column once the final ENERGY STAR 2011 specification is released in the weeks to come.

As you can see, this event had a lot of information and was more than worth the two days many attendees took out of their busy schedules. It also had a lot of moving parts that could not have moved fluidly without several outstanding volunteers. Therefore, I want to extend my profound appreciation to Mark Kleimann (Environments General Contractors), Adam Auensen (Tonti Properties), Kevin McLain (Dow Building Solutions), Jim Saunders (Green Mountain Energy), Dan Fette (Dan Fette Builders), Randy West (Texas Andersen Homes), Collins Jones (Newport Homebuilders), Terry Collins (Direct Energy), Scott Roberts (Creative Architects), Carolee Kamesch and her daughter Morgan (Prestige Designer Homes), and Todd Shaddock. Also, I want to thank HBA staff members Misty Varsalone and Becky Warner.

Thanks to all of their efforts and the support of the event sponsors listed below, the association through its Green Built Texas program truly was able to do an immense amount for its membership; not only in terms of information, but also in value. The cost to attend both days of Project Zero was only $50.
 

Special Thanks to all Project Zero Sponsors:

• 84 Lumber
• Builder Insider
• Kiva Kitchen and Bath
• Energy Shop
• Whiz-Q Stone
• Velux
• Texas Home Energy Raters Organization

With your help, the program endeavors to pull together yet another ambitious event that we are calling Project Zero. Project Zero is a two day training opportunity for home building industry professionals to learn both basic and advanced building science principles through classroom instruction along with onsite demonstrations at a net zero energy home in Lewisville November 18-19. The TimberCreek Zero Energy Home being built by GBT Co-Chairman Chris Miles will be one of the first in the state to reach net zero status by generating more electricity on site than it uses.

On Wednesday, November 18, attendees will be treated to a full-day building science training seminar conducted by nationally renowned expert, Justin Wilson.  Justin is part of the brain trust that put the very successful Built Green Colorado® program together. His seminar will cover many aspects of building science; including designing and constructing buildings which systematically incorporate framing, insulating and air sealing techniques to effectively manage heat, air, and moisture flows. All this is accomplished by minimizing lumber and material uses and impacts, while increasing energy efficiency and building durability.

Day two (November 19) will feature on-site demonstrations at the TimberCreek Home. I know what you are thinking; this is just another science fair project on a slab, isn’t it? Well, I do not expect everyone to run out and build similar projects. That is currently not an economical proposition. However, I guarantee that you will learn a number of practical things when you visit the site that will help you enhance the performance of any home you build.

Perhaps the best thing about the two days of Project Zero is the value. Fifty dollars, yes, only $50, gets you a two day pass to attend all of the aforementioned events. With breakfast and lunch provided on Wednesday and Texas BBQ on Thursday, you would be getting a bargain just on the food alone.

Registration and additional event information is available online at GreenBuiltTexas.com/ProjectZero.  

Thank You Beth Johnson: A True Pioneer among Realtors

With the changing of the guard on the Green Built Texas board, we lose a true visionary in her field and for our program in Beth Johnson of Advocates Realty. Beth, Texas’s first certified Eco-Broker, is stepping down after being with the program from its beginning nearly four years ago.

We are grateful for and have benefitted greatly from Beth’s knowledge, enthusiasm, and networking skills.  A LEED AP, NAHB CGP, and self-described building science addict, Beth’s steadfast attendance and support, her active and thoughtful participation, and a dedication to improving and growing GBT helped the program become what it is today.

A native North Texan, Beth specializes in assisting homeowners in obtaining resources they need to buy, build, sell, or upgrade their green homes. She has also been an outstanding asset to builders and developers by marketing the green features of their homes and attracting buyers. Her leadership and unique perspectives will certainly be missed.

This month’s column is sort of a carry-over from last month, but the gravity of this issue has led me to pick up where I left off. Thus far, most of the demand for resource-efficient or green homes has been market-driven and a product of consumers wanting to save money. This demand is what spurred the creation of green building programs such as Green Built Texas that came about to find a way to get the maximum amount of home performance for the least practicable cost.

I commonly call free market demand the pulling force that is steadily moving the industry to build more efficient homes at a rate that consumers’ wallets can bear. On the other hand there is also a pushing force behind this movement that comes from regulation. As it should, this second force has trudged steadily behind the pull of a certain segment of the market that is looking for a green home and what green programs are designed to serve. Sometimes we need to be reminded that not everybody wants these things. However, there needs to be, and has been, a reasonable degree of push that has come from the evolution of the energy code, which has progressed to the point where homes built today are twice as efficient as the ones we built 30 years ago.

As we all know, green has been the “in thing” with consumers for several years now and policy makers including President Obama have enjoyed great success in garnering votes by catering to this sentiment. Being the good capitalist that I am, I believe, and I think most of you would agree, that the best way to continue to build more efficient homes is by spurring more demand or increasing the “pulling” force on the market through promotion, advertising, and financial incentives that include tax credits. But, now we are in grave danger of “pushing” force of regulation shoving our industry and market-driven programs like Green Built Texas right over the cliff into an uncertain abyss.

Last month, I left you wondering what Congress would do following the EPA ruling that carbon emissions pose a threat to public safety and welfare. My searching since then has come up all ACES. By that I mean the American Clean Energy and Security Act (ACES). The bill is currently a “discussion draft” lingering in the House Subcommittee on Energy and the Environment, but President Obama has called for significant action on the bill to be taken by December when the international community meets in Copenhagen, Denmark to come up with a successor to the Kyoto Treaty. Kyoto has led to the establishment of a rigorous carbon emissions trading system in Europe, but was not signed by the U.S. Long story short, by the end of the year, the U.S. will likely be signed up for a comprehensive and rigorous emissions trading or cap-and-trade system and its provisions are already germinating in ACES.

So what does this mean for us? Well, buried in the 900+ pages of ACES are provisions that will push the nation’s building energy codes like never before. For example, within a year after the bill is signed by the President, (presumably he will sign it by the end of this year) it would require states to update their energy codes to the 2009 IECC, a level that is 12-15% more efficient than the current code level. Note that this will likely be required by state legislation in January 2012. Three years after that, the energy code must evolve to become 30% more efficient than current levels and then by 2014, it must be 50% above. Are you as concerned as I am yet?

Not only will this bill likely spell the end of market-driven green building and the pulling force that has made this such an incredible movement in the past few years, it will also have a substantial impact on housing affordability and put an already-fragile market in deeper peril. NAHB seems to be aware of this bill and has made the argument that this will derail the regular ICC code making process (which it will) and that the bill is unconstitutional. In my opinion, the constitutionality argument has a steep uphill battle as the precedent of the Massachusetts v. EPA case and subsequent EPA ruling that I talked about last month will likely override any due process claims since greenhouse gas emissions are deemed threats to public welfare.

There is also a state’s rights issue since the bill says if a state’s codes fail to meet the federal performance targets noted above, then the federal targets are then imposed upon that state. Again it’s a tough constitutional argument since Congress could regulate this under its “interstate commerce” powers. Also, as we saw with the building code provisions of the last federal economic stimulus package, Congress could instead dangle more money out there for states to “voluntarily” follow their regulations than elected officials could afford to refuse. Despite the rhetoric among some governors, they almost always take the money.

As Congress deals out its ACES and threatens to trump years worth of environmental progression in the home building industry, some prospective is needed. Remember that buildings are often cited as 40% of the greenhouse gas emissions “problem.” However, new homes, built in the last ten years, only account for 2.5% of this number and half of that is lost in the power grid and never makes it to the home. This leaves an aging housing stock that constitutes that vast majority of the problem. The only way to upgrade them is through market incentives such as tax credits.

However, in Congress’s infinite wisdom, the plan currently is to increase the cost of new homes to the point that will keep most of us (especially poor law school graduates) in these older existing homes instead of the more efficient ones we are currently building. Also, keep in mind that a home’s greenhouse gas emissions are a product of the power plant it is connected to. For example, you could have the least efficient home you could think of connected to a nuclear power plant and that home would use virtually no emissions since nuke plants emit very low amounts of carbon emissions.

I wish I had a better solution, but I think the best course of action is to make our voices heard. Urge NAHB to get all hands on deck for this issue and make your congressmen aware of the impact ACES will have now, while there is still plenty of time to act.

Nowadays, few things really come as a surprise to me. Indeed these days when someone asks me what’s coming next in the field of green building, I no longer look to products magazines and cost benefit analysis. Instead one of the places to look, heaven-forbid, is to the EPA. The first issue I’ll discuss is more global, but will eventually have a major effect on every sector of the economy, including ours. The next issue hits closer to home. Regarding each, my hope is that the HBA can serve as a resource not only to inform you of what’s coming, but also to provide you with the tools you need to enable your business to weather this changing regulatory climate.

EPA: Greenhouse Gases Threaten Public Health and Welfare

Many of you may have heard about carbon cap and trade, essentially the creation of tradable benefits that arise from the reduction or avoidance of greenhouse gas emissions. A common way to create such an artificial market is to “cap” emissions at a certain amount and gradually reduce it over time allowing entities that pollute less to sell surplus credits to those that produce more. Europe has employed such a system for several years with varying degrees of success.

In 2007, the United States Supreme Court in Massachusetts v. EPA ruled, in 5-4 decision, that greenhouse gases are pollutants and subject to Clean Air Act regulation. The ruling required the EPA to decide whether global warming threatens human health, and if so, to take steps to cut such emissions. Last week, the EPA indeed determined that greenhouse gas emissions represent threats to public health and welfare. The EPA has virtually ensured that greenhouse gases whether they come from planes, trains, automobiles or single family homes can and will be regulated as the words “health and welfare” are cornerstones of enabling legislation (language that tells government what they can regulate) at the federal, state and local levels. 

The question that remains to be seen is, who will regulate and how. With this ruling the EPA has arguably put a big green gun to Congress’s head. Justifiably-so many on both sides of the aisle in Congress have been reluctant to institute a cap-and-trade system as it poses a real threat to the economy even in good times. However, if Congress fails to act on regulation of carbon emissions, the EPA could take matters into its own hands and regulate on its own under the Clean Air Act. 

It’s too early to say if Congress or the EPA will launch a full-blown eco-inquisition, bring us into an era of green-McCarthyism, levy a carbon tax or create a new carbon market. However, it is clear that this ruling is one of the most significant steps ever taken by the EPA and will provide new challenges and perhaps opportunities in the years ahead.

Big Changes Coming to ENERGY STAR

According to the EPA’s latest numbers, about 37% of all Texas homes are ENERGY STAR certified, leading the next six states combined. However, once the program’s new requirements become effective in 2011, those numbers could drop significantly along with participation in the associated rebate programs. In the links below, you will find a presentation outlining the new requirements, which include:

Adjusted HERS Index scores depending on home size (larger homes will be penalized significantly)

- Required room to room pressure balancing tests (may require additional returns and may increase inspection fees)

- Hot water distribution: requiring manifold (PEX Home-Run) or demand system

- Showerheads rated less than 2.0 g.p.m : outside of camping trailers or RVs  there are not many products on the market that meet this requirement. Note also that the EPA’s WaterSense program has yet to issue a specification for showerheads.

- More strict Thermal Bypass requirements (zero tolerance for gaps, voids and compression in insulation). Also additional advanced framing requirements and/or other methods to reduce thermal bridging will be required.

In addition to this, the REM/rate software that determines your HERS Index is currently under development, but is likely to be based on the new 2009 IECC, which, in and of itself, is about 12-15% more stringent than the current energy codes. In other words, an E-Star home in 2011 could be roughly 30% above today’s existing codes, plus the considerations noted above and in the presentation linked below.

None of these provisions are set in stone yet, but as the new ENERGY STAR program takes shape the HBA will be working with municipalities that have mandated the program as well as its own Green Built Texas program to ensure that innovation, flexibly and cost considerations are addressed.  

Energy Star: The Road Ahead Presentation: http://www.resnet.us/conference/2009/presentations/Rashkin-Road_Ahead.pdf