LEED and public policy

We’ve been keeping an eye on the sweeping Energy Savings and Industrial Competitiveness Act (PDF), introduced by Senators Jeanne Shaheen (D–NH) and Rob Portman (R–Ohio).

The common-sense bill, likely to come to the Senate floor any day now, enjoys broad support across the political spectrum. It would boost the national model energy code for both homes and commercial buildings, support commercial retrofits with financing help, and develop training programs for green building jobs.

Money changes everything

But there’s a fly in the ointment: let’s call it Musca lobbyistica. BuildingGreen received an urgent missive from the U.S. Green Building Council (USGBC) this morning (emphasis added):

The chemical lobby is quietly leveraging its multimillion-dollar operation that would ban the federal government from using the LEED green building rating system…. They are carefully crafting an 11^th-hour amendment that would require the federal government to only use green building rating systems that are American National Standards Institute (ANSI)-certified. This unprecedented governmental intervention is purposely designed to exclude LEED and create a monopoly for another system they fund and influence. 

By banning LEED, the amendment would cost the federal government money and jeopardize its ability to build green, demonstrate leadership, and continue to save American taxpayers money. LEED has long been recommended by federal agencies after extensive research.

The amendment would work by effectively upending the federal government’s definition of a “consensus standard”—only allowing certification systems developed through the ANSI process.

We’ll get to why that’s bogus in a minute; first a little background on this ongoing battle over LEED in the federal government.

“Another system”?

The other system in question is Green Globes, first introduced to the U.S. in 2005 by the Green Building Initiative (GBI) to compete with LEED when LEED refused to recognize Big Timber’s pet forestry certification.

To review that history, I highly recommend Lloyd Alter’s investigations into the origins of Green Globes over at Treehugger. Here’s how he put it earlier this year: “Green Globes serves just one purpose: to be a building certification system that is friendlier to big wood and to the plastics industry and to displace LEED.”

And indeed, GBI’s members and supporters—44 in total, including the American Chemistry Council, the American Wood Council, DOW Chemical, the Vinyl Institute, Louisiana Pacific, etc.—certainly have weighty representation from these two industries.

“All of our membership is on our website. It’s not a secret,” Erin Shaffer, vice president for federal outreach at GBI, told me in an interview. She objected to the characterization that GBI has outsized industry support. “There are a ton of [members and supporters]. We’re the only organization that has put one of our tools through the ANSI process—a transparent, open, public process.”

What’s consensus?

The idea that the ANSI process is the only way to develop a standard by consensus is not accepted by anyone, including the federal government itself—yet the chemical industry, the timber industry, and GBI have all been pushing this same talking point for years.

As we wrote in a June 2012 blog post about chemical industry attacks on LEED:

In its recent review of rating systems, GSA noted that LEED was not an ANSI standard but concluded that LEED was developed according to a rigorously transparent consensus process according to on its own definition:

The certification system contains the attributes of a voluntary consensus standards body defined in OMB Circular A-119: openness, balance of interest, due process, an appeal process, and consensus.

What’s more, recent communications between BuildingGreen and GBI belie Shaffer’s characterization of Green Globes as “transparent, open and public.”

When I requested a draft of the pending 2013 version of the Green Globes standard from Sharene Rekow, GBI’s vice president for business development, so I could write about Green Globes’ treatment of whole-building life-cycle assessment for an EBN feature article, I was denied access to the drafts and directed to a website where I could “register for and order the ANSI Standard” (which is not, to our knowledge, even the same thing as the Green Globes rating system—but that’s a story for another day!).

Rekow added, “We are writing an article that encompasses the following outline, and we look to have the article ready by the middle of June. This piece will explain the whole-building life-cycle assessment and is the information that we want published about the approach.” Apparently journalists only get to see—and republish word for word—the parts GBI “wants published.”

By contrast, you can easily download multiple draft versions of LEED v4 , at no charge, on the USGBC website.

What’s a lobbyist?

The building standard itself isn’t the only thing that’s shrouded about GBI’s activities. Our investigations strongly suggest that GBI is effectively a means for the chemical and timber industries to lobby local, state, and federal governments under the guise of third-party legitimacy.

Although nonprofit organizations are free to spend up to 20% of their total budgets on federal lobbying without having to report their activities on tax forms, most 501(c)(3) organizations stay far, far away from that threshold and opt to file Schedule H to report their activities even if they don’t approach the 20%, according to Sheila Krumholz, executive director at the Center for Responsive Politics, a nonpartisan policy group that tracks campaign funding and spending on federal lobbying.

Nonprofits that deny their activities are actually lobbying could be risking their special tax status by failing to register their lobbyists or failing to track the amount spent on lobbying, she adds. So what counts as lobbying, anyway?

“It’s a pretty low bar for somebody who’s really involved in this world of government relations and federal advocacy,” she said. “The second time you pick up the phone or email a lawmaker or staffer, you are a lobbyist.”

Is GBI ‘engaged in something illegal’?

“I talk to a lot of people in a lot of the agencies,” Shaffer told BuildingGreen—but she denied that she’s a lobbyist. “We are not a lobbying organization. It’s really educational work, not lobbying.”

In addition to her work as vice president for federal outreach at GBI, Shaffer is president and cofounder of Strategic Advocacy Solutions (SAS), which claims it can help its clients “win in Washington, D.C. or the state capitols” and “communicate your policy positions to decision-makers.”

“It doesn’t matter what you call it: all that matters are these criteria for reporting,” counters Krumholz. “One person’s ‘lobbying’ is another person’s ‘education.’”

She asks, “Is it possible that GBI is engaged in something illegal or risking its nonprofit status? Absolutely. It seems that both GBI and SAS are engaged in activities that are very similar to lobbying and are not reporting their activity. Frankly, it can be hard to tell from the outside whether an organization should be registering and reporting its income and activities. But based on their own marketing materials, it sounds like they might need to register; it merits scrutiny.”

USGBC lobbies too

GBI is not the only lobbyist on the block. As we’ve reported previously, about one-half of one percent of USGBC’s total expenses in 2011 were for lobbying. All USGBC lobbying expenses going back to 2005 can be tracked on opensecrets.org. The organization currently has one registered lobbyist on staff, legislative director Bryan Howard, according to the organization.

How is this different from GBI’s approach? At least on the surface, it’s happening above board—much like the organization’s LEED development process.

That doesn’t mean USGBC doesn’t bear equal scrutiny with GBI, which is why BuildingGreen submitted Freedom of Information Act requests to a number of federal agencies earlier this year to try to ferret out just how much lobbying about LEED and Green Globes is going on regularly. We’ll be getting those responses in the next few weeks and will keep you updated.

Back to that amendment…

“We are strong supporters of the Shaheen-Portman bill as drafted,” says Lane Burt at USGBC. “There are good reasons this bill has a whole lot of bipartisan support. This is an attempt to latch on a special-interest wish list to a bill that otherwise everyone agrees with.” There have been no hearings on the content of this amendment, he told BuildingGreen. “That’s not a way to make a big policy decision.”

The bill may be introduced as early as tomorrow, May 16, and background sources suggest that Mary Landrieu (D–Louisiana)—who enjoys the strong support of the plastics industry, as seen in this commercial paid for by the American Chemistry Council—will propose the amendment.

Whatever your opinions about LEED and Green Globes, this might be a good time to call your senator to ensure that public comments—and not just lobbyists—are heard.