Letter from Max Fleischer, Immediate-Past Chair

The TBA’s Environmental Law Section has once again had a successful year. Most recently, the Section completed its review of the entries in the Jon E. Hastings Memorial Award Writing Competition The first place winner was Shannon Wiley of the University of Memphis Law School. Second place was awarded to Sam Evans of the University of Tennessee Law School. Allen Malone, Tasha Blakney and I served as judges for the competition. A special thank you goes out to Rick Hitchcock who served as chair of the committee who organized the competition.

In April, the Section co-sponsored with the Tenn. Dept. of Environment and Conservation, the Environmental Law Session at the 38th Annual Solid and Hazardous Waste Conference and Exhibition in Gatlinburg. The Environmental Law Session included the following programs in which the section members indicated gave presentations: “Developments in Air Pollution Law,” Robert J. Martineau, Jr.; “Environmental Crimes,” William H. Penny; “Legislative Update and Hot Cases,” Alan Leiserson; and, “Developments in the Definition of ‘Solid Waste’ under RCRA,” Edward M. Calloway. Also of significance at the Conference was a presentation by Thomas G. Stovall, Chief Administrative Law Judge of the Sec. of State’s Administrative Procedures Division, “Administrative Law and Process” ; Leah Dundon’s presentation, “E-Waste: Product Take Back Laws and End-of Life Management of Electronics”; a presentation by Carl Pierce, Interim Director of Howard H. Baker Center for Public Policy, “Ethics Upate”; David Buxbaum’s presentation, “Overview of EPA Expectation of Groundwater Cleanups”; and, Emily Yao’s and William Penny’s presentation, “Regulated Waters.” Thank you to all presenters and to Jim Wright, who assisted with the development of the ethics sessions.

Finally, with this final edition of the 2008–2009 bar year, the Section will have published four newsletters. I would like to express my thanks to following Section members who contributed articles for publication in the newsletters: Gary Shockley, Alan Leiserson, LeAnn Mynatt, and William Penny. Kudos to newsletter editor Rebecca Chunn Tolene who put these newsletters together, and to Devin Wells, Secretary-Treasurer, who helped find sponsors for all of our newsletters. Newsletter sponsorships helped with the cash awards for the Jon Hastings Writing Competition.

The contributions of time and effort by everyone who serves on the executive council and all of our former chairs has made the section flourish this year. My participation in the Section over the years has shown me that zealous representation does not necessarily have to be overzealous representation. Participation in the Sections activities can lead to good relations between opposing counsel which can ultimately result in facilitation of resolution of matters in a non-contentious manner.

Last, but not least, thanks to Lynn Pointer, Programs Administrator for the TBA, and to all of the TBA staff who have always been incredibly helpful to the Section’s executive council.

Finally, at the TBA Convention in Memphis, the Section elected its new leadership for the 2009-2010 bar year. Congratulations and best of luck to the Section’s new executive council that is set out below:

2009 - 2010 TBA Environmental Law Section Executive Council:
Chair - David Higney, Grant, Konvalinka & Harrison, PC (Chattanooga)
Vice-Chair - Devin Wells, State of TN, Dept. of Environment & Conservation (Nashville)
Immediate Past Chair- Max Fleischer, State of TN, Dept. of Environment & Conservation (Nashville)
Secretary/Treasurer - Rebecca Tolene, Tennessee Valley Authority (Knoxville)
Newsletter Editor - Rick Hitchcock, Chambliss, Bahner & Stophel P.C. (Chattanooga)

Middle TN Delegates:
David Henry, State of TN, Dept. of Environment & Conservation (Nashville)
Scott Thomas, Bass, Berry & Sims PLC (Nashville)
Bob Tuke, Trauger & Tuke (Nashville)

West TN Delegates:
Paul Buchmann, Glankler Brown PLLC (Memphis)
Farris DeBoard, Burch, Porter & Johnson, PLLC (Memphis)
Robert McLean, Farris Bobango Brannan, PLC (Memphis)

East TN Delegates:
Ashley Lowe, Baker Donelson Bearman Caldwell & Berkowitz, PC (Knoxville)
Tasha Blakney, Eldridge & Blakney PC (Knoxville)
Mark Jendrek, Mark Jendrek, PC (Knoxville)

Max A. Fleischer
Assistant General Counsel
Tenn. Dept. of Environment and
Conservation
20th Floor, 401 Church Street
Nashville, TN 37243
(615) 532-0126
max.fleischer@state.tn.us

SEER Update
By Ed Callaway

Several members of the TBA Environmental Law Section traveled to Atlanta on May 4th to attend "Key Environmental Issues in U.S. EPA Region 4," a full-day seminar presented by the ABA's Section of Environment, Energy, and Resources (SEER). Over 100 environmental lawyers from all over the southeast attended CLE sessions on a variety of topics important to practice in EPA Region 4, and enjoyed the chance to network with each other and dozens of EPA lawyers and administrators in attendance. Program highlights included:

• Acting Regional Administrator Stan Meiberg presented a keynote address, highlighting the new administration's priorities for Region 4.
• Discussion of the ethical rules governing contact with government employees involved in legal proceedings.
• Lawyers for Earth Justice and industry coalitions debating the latest developments in the evolution of the definition of solid waste.
• A panel presentation on the monetization of environmental impacts, including wetlands banking, air emissions trading, and endangered species conservation banking.
• Presentations on state-federal relations in the wake of the recent DC Circuit decisions on CAIR and CAMR.
• Maureen O'Mara, new Special Agent in Charge of EPA-CID Region 4, describing her experience and priorities for criminal prosecutions.
• Director of EPA's Office of Civil Enforcement Adam Kushner presenting enforcement priorities for the nation.

During a reception at the conclusion of the day's proceedings, the participants had unparalleled opportunities to meet other environmental practitioners from southeastern states, and EPA Region 4 lawyers responsible for advising those setting policies that affect us all.

The ABA-SEER's State and Regional Environmental Coordinating Committee, including the TBA's own Wilson Buntin and Ed Callaway, was the lead entity for planning the seminar.

Potential Pitfalls of the LEED Certification Process
By Brian Woodroff

As a LEED Accredited Professional in the architectural field, I am generally considered to be the go-to guy in the office when it comes to issues of green building. I take protecting the environment seriously and am fully aware that my profession is often at odds with that stance. After all, the greenest building is one that is never built. Of course, strict adherence to this stance puts me out of a job, so I tend towards a middle ground. I attempt to keep up with the rapidly evolving green building industry and do my best to keep others aware as well. Fortunately, I do take off the green tinted glasses on a regular basis. This is especially valuable considering some of the legal pitfalls that lie in wait for all those involved in a LEED project, whether they are the owner / developer, the architect / engineer, or the realtor / broker / marketing person.

For those few that have not been introduced to the LEED rating systems, LEED is the acronym for Leadership in Energy and Environmental Design. According to the U.S. Green Building Council’s website, it is “a third party certification program and the nationally accepted benchmark for the design, construction and operation of high performance green buildings.” Developed by the U.S. Green Building Council in 2000 through a consensus-based process, LEED serves as a tool for buildings of all types and sizes. LEED certification offers third-party validation of a project’s green features and verifies that the building is operating exactly the way it was designed to.

LEED is a point-based system where building projects earn LEED points for satisfying specific green building criteria. Within each of the seven LEED credit categories, projects must satisfy particular prerequisites and earn points. There are 100 base points; 6 possible Innovation in Design and 4 Regional Priority points.

The five categories include Sustainable Sites (SS), Water Efficiency (WE), Energy and Atmosphere (EA), Materials and Resources (MR), and Indoor Environmental Quality (IEQ). An additional category, Innovation in Design (ID), addresses sustainable building expertise as well as design measures not covered under the five environmental categories. The number of points the project earns determines the level of LEED Certification the project receives. LEED certification is available in four progressive levels according to the following scale:

Certified 40–49 points
Silver 50–59 points
Gold 60–79 points
Platinum 80 points and above

It is a mostly voluntary standard, and I emphasize the mostly voluntary aspect because the federal government, along with a number of state and local governments, have mandated that all new construction be certified under the LEED program. This mandate, along with over zealous claims by owner, architects, contractors, and marketers / brokers, have opened up a Pandora’s box of problems that those involved should be cautious about.

The majority of potential issues arise from the simple fact that the LEED program is a third-party verification of green building achievement. The design team submits documentation showing how they have met the various criteria for the program with their design while the contractor does likewise. After review of the submitted material is complete, a certification level may be awarded.

In attempting to land the project, an architect may promise the client that the yet-to-be-designed building will achieve a certain LEED certification. He may even write the LEED level into his contract. Everything is fine if the building meets or exceeds the claim. But what happens if it doesn’t achieve the promised level? Was the failure due to the architect’s poor design or was it due to a failure on the contractor’s part in construction? Did the initial design come in over budget necessitating value engineering that cut out some of the aspects of the project that were to be used to achieve a certain certification? How about an owner, developer, or marketing person who claims that a project is certified to a certain level when it has not even broken ground? Certification occurs after the building is complete, not before. All parties involved should be extra careful when making claims that rely upon third-party verification.

This pitfall does not only appear during initial negotiations, but throughout the project. Many of the LEED documentation forms have the submitter “assert”, “verify”, or “certify” that the design, construction materials, construction technique, or system performance meets or exceeds a certain standard. Any professional liability insurance agent will warn you to never use those words in regards to a project because they expose you to additional liability in the event something goes wrong. They will also warn that doing so will remove your liability coverage, leaving you solely at risk.

The LEED certification process has a cost associated with it of anywhere from 2 – 10% of the overall construction cost. This is fine as long as it is a voluntary achievement. But when it is mandated, it raises the hackles on those who have to cough up the premium for a project, especially when they do not support the measure.

The State of Florida found this out last year after it mandated that all public buildings built after July 1st of 2008 meet green building standards. The wording of the law was such that it applied not only to state-owned buildings, but also to county, municipal and school district facilities.

The city of Boynton Beach challenged the new law and threatened legal action, taking umbrage at being required to cover the additional costs. The Mayor was quoted in Fort Lauderdale’s Sun Sentinel as stating, “If they want to give us that, give us the money.” Nothing has become of it so far, but how long before it will no longer be a matter of grandstanding and legal action is actually taken? As more jurisdictions begin to implement some form of green standards, the chances of litigation will grow.

Although I am a firm proponent of green building with the accreditation to prove it, I do not advocate that clients or colleagues jump headlong into the process without being aware of the potential pitfalls. My conscience however, dictates that I must not let the potential dangers keep me from doing what is needed by doing my part to conserve and protect the environment that sustains us. This concern is particularly prudent considering that there is not yet a legal history surrounding LEED certification and for now it is a bit of a murky area. Eventually, the legal terrain will be worked out, but until then caution is definitely warranted.

Brian Woodroof is a LEED Certified Architect Intern at Michael Brady, Inc. in Knoxville.

Michael Brady, Inc.
299 North Weisgarber Road
Knoxville, TN 37919-4013
Phone (865) 584-0999 • Fax (865) 584-5213

Green Initiative Message from TBA President Gail Ashworth

The TBA Environmental Law Section has agreed to help me promote a green initiative for law firms and lawyers in all practice settings throughout the bar year. Watch for information in upcoming issues of the Tennessee Bar Journal and other TBA publications on ways that your firm or office can implement conservation practices that will help make a significant impact on the environment. Please let me hear from you if you would like to be involved in this effort or if you want to provide information that might be helpful to lawyers and firms who are considering ways to implement best practices for office paper management, the use of renewable energy and better energy management. I look forward to working with the Environmental Law Section throughout this year to help move all Tennessee lawyers forward on this important issue.

Gail Vaughn Ashworth,
TBA President
gail@gideonwiseman.com