Law and the Environment : Environmental Lawyer & Attorney : Foley Hoag Law Firm : Boston, Washington D.C.

According to a quote from House Energy and Commerce Chairman Henry Waxman in an E&E article this morning, the Waxman-Markey bill could reach a floor vote inside of 3 weeks.  Speaker Pelosi had set a deadline of next Friday, June 19, for the 8 House Committees still evaluating HR 2454 to conclude their review, but has not indicated when Democrats will bring the legislation to the House floor.  Waxman said yesterday that he wants debate to begin on June 22 and the bill to go to a vote before the July Fourth recess -- "I think the speaker and the majority leader and the administration agree with that timing, and we're going to do all we can to stick to it because after we come back from the July Fourth recess, it is health care for the rest of the month."

The tension in scheduling the Administration's dual priorities of energy and health care seems to be an issue.  Ways & Means Chairman Charles Rangel reported that in the Democratic committee members' meeting with the President this week , the President did not give lawmakers a specific deadline for sending him a climate bill -- a marked contrast with the firm deadline for health care legislation.  Rangel told reporters that in order to concentrate on both climate and health care, the Ways & Means Committee might skip markup of the climate bill and instead work out their concerns with Chairman Waxman before a floor vote or during floor vote, via amendments.

What the bill will look like when when it reaches the floor is still under discussion.  One committee expected to offer substantial amendments on hot-button issues like biofuels and offsets is the House Agriculture Committee.   While the offsets debate may be even more heated than that for the allocation of credits, biofuels may be the first amendment offered.  As Climate Wire reported Wednesday, House Agriculture Committee members are considering a legislative fix for EPA's proposed regulation of biofuels.  At EPA's public hearing on the recent proposal, which involves the requirement of a 100-year long lifecycle analysis for biofuels international impact, testimony from both biofuel advocates and environmentalists urged changes.  Particularly since the lifecycle emissions of petroleum production are not evaluated in the same way, calculation of biofuels' carbon footprints will have a huge impact on whether the Congressional mandate to ramp up biofuel use to 36 billion gallons a year by 2022 can be met. 

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The new Determination of Need Guidelines for Environmental and Human Health Impact adopted by the Massachusetts Department of Public Health are further evidence that sustainability and green development are much more than just buzzwords in Massachusetts. It appears that this administration is serious about incorporating green development principles into all executive branch decision-making.

In brief, the Guidelines require a health care facility applying for a Determination of Need (“DoN”) for new construction or gut renovation to meet LEED-HC “silver level” green building standards. The scope of the Guidelines’ impacts could not be broader, implicating site selection, water and electricity use, and choice of construction materials. And because the Guidelines take effect as soon as January 1, 2009, it is likely that projects already under consideration will need to meet the new standards.

I look at the Guidelines as just one example of how the “green” movement is reaching into all corners of our economy. In the past, environmental regulation was concentrated on industries such as mining, agriculture, manufacturing, and power generation. This is changing. Today, government is taking steps to ensure that businesses in a wide variety of industries take cognizance of their water use, energy efficiency, and greenhouse gas impacts. It certainly appears that any types of facility subject to government funding or approval should be thinking about green development in general and LEED certification in particular. If health care facilities must meet LEED standards, why not affordable housing or education institutions funded by the Commonwealth? Why not municipal facilities? Indeed, more than a dozen municipalities in the greater Boston area already incorporate LEED or similar green building standards into their zoning bylaws. 

While this changing regulatory landscape is certain to impose up-front costs in complying with these standards, there may also be business opportunities for organizations that are proactive in addressing these issues. Companies and organizations that get out ahead of the curve will be well-positioned to take competitive advantage of the real push for green development.

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