The Greening America’s Capitals: Little Rock, Arkansas Report

Design concept showing streetside rain garden.

The Arkansas sustainsphere is fortunate to have a sustainability-minded steward for its capital.  Regardless of how you may feel about his politics, Little Rock Mayor Mark Stodola has a vision for a Little Rock that is both green and sustainable.  Back in 2010, in pursuit of this vision, Mayor Stodala led a successful campaign for Little Rock to be one of five communities to participate in the 2010 Greening America’s Capitals Program.

The Greening America’s Capitals Program is a collaboration between the EPA, the U.S. Department of Housing and Urban Development (aka, HUD), and the U.S. Department of Transportation.  Participants receive technical assistance from the EPA to “develop an implementable vision of distinctive, environmentally friendly neighborhoods that incorporate innovative green building and green infrastructure strategies.”

The report on Little Rock is now out and available to the public.  Not surprisingly, the focus of the design efforts and suggestions is the Main Street corridor.  The basic design strategies for Main Street are to divide Main Street into four “nodes” – a neighborhood park in the South of Main (“SOMA”) neighborhood; improvements to the 1-630 crossing; a new arts park at the intersection of Main Street and Capital Avenue; and improvements to the “Convention Center Gateway.”  Suggested green infrastructure techniques include street-side rain gardens, green roofs, parking areas with permeable pavement, downspouts linked to the rain gardens, as well as new crosswalks, expanding the trolley, improved downtown bike routes, and a shaded sidewalk on the 1-630 overpass.

The authors of the Report correctly observe that all of this will be accomplished, if at all, through in a collaborative framework:

Private property owners and the city could work together to enhance the public realm with café seating and rain gardens between parking lots and sidewalk.  City departments, such as Public Works, could begin improvements, such as converting some on-street parking to café seating or rain gardens in order to create inviting spaces.

City staff will need to coordinate necessary utility and street improvements with an overall, long-term vision for the street, which would include permeable parking lanes, rain gardens, and increased café space.

There is nothing the Report that will require a talisman to achieve.  The recommendations are straightforward, intuitive, and do not require new construction or ridiculous realignments of infrastructure.  They are not particularly expensive.  Given the leadership, the resources, and the will, each and every suggestion and recommendation in the Report can be achieved in three years, and probably less. 

Of course, it is relatively easy to gather designers, brainstorm ideas, and produce a glossy Report overflowing with pretty pictures and concept drawings.  Green roofs, rain gardens, new crosswalks, new bike routes, an expanded trolley line, and permeable pavement would represent a fundamental change in the infrastructure philosophy of downtown Little Rock.  This is going to require a focused and intentional marriage of state and local policy and private funding and development. 

It will also require a realignment of priorities.  For example, many of the suggested improvements – rain gardens and permeable pavement – are relatively inexpensive and could be funded with the proceeds from a tax-increment financing district.  But those who already receive piece of the property tax pie tend to have an attitude of entitlement to the proceeds of any property tax increase.  As a result past efforts to establish a TIF district for downtown Little Rock have flat-lined on arrival. 

Likewise, sidewalk café-seating holds the promise of creating immediate life and vibrancy downtown.  But there has been a movement afoot for years to make downtown more accessible to mobile food vendors (in the model of cities like Austin, Texas), and this has been unsuccessful because of local laws that make it illegal for vendors to use both street and sidewalk.  To this point, the regulatory and zoning attitude in downtown has been more restrictive and less permissive.  Assuming Little Rock wants to be greener, that is absolutely going to need to change.

The Greening America’s Capitals: Little Rock, Arkansas Report can be found here:

http://www.epa.gov/smartgrowth/greencapitals.htm#arkansas

LEEDigation Update: Gifford v. USGBC Dismissed

In October 2010, energy efficiency consultant Henry Gifford filed a salacious and potentially ground-breaking lawsuit challenging the U.S. Green Building Council’s LEED certification system. Gifford made a number of interesting (and, as it turns out, legally insignificant) claims against the USGBC, but the essence of Gifford’s complaint was this: he contended that the USGBC promoted LEED as resulting in more energy efficient buildings; that, as a result, consumers favored LEED-accredited professionals over non-LEED accredited professionals; that the USGBC’s claims connecting LEED certification with increased energy efficiency were, in fact, untrue; and, as a result, energy efficiency consultants like Gifford who refused to “drink the Kool Aid” were being damaged and driven out of business.

Well, gadfly Gifford has been vanquished. In a nine-page opinion issued on August 15, 2011, the federal district court for the southern district of New York dismissed Gifford’s complaint in its entirety.

Given the aura of anticipation that surrounded this case and the occasional venom that pierced through the cold hard paper record (yes, the USGBC really did refer to Gifford as a “gadfly” in one of its filings), not to mention the fact that Gifford is one of those people who seems to have the uncanny ability to provoke strong feelings, even from those who do not know him, I suspect many will find the opinion both surprisingly bland and generally unintelligible.

So here, in a nutshell, is why Gifford’s complaint failed:

As I’ve discussed in previous posts, a basic concept of any lawsuit is the idea of “standing.” This means, quite literally, that the person or entity bringing the suit is the right person or entity to bring the suit. Generally, a plaintiff must identify two basic things: first, that he or she has suffered an injury that is discrete, real, and compensable by the payment of money; and, second, that there is a legally relevant connection between that injury and something that the defendant allegedly did.

Gifford brought his claims under the federal Lanham Act, which generally prohibits the false representation of goods or services in interstate commerce. The Gifford court recognized two ways of showing standing for a Lanham Act claim: either the plaintiff and the defendant are competitors, or the plaintiffs must allege a “reasonable commercial interest” that is likely to be damaged by the defendant’s alleged false statements.

Gifford failed to clear the basic hurdle of standing. Gifford and the USGBC are not competitors. The court found that the USGBC, through the LEED certification system, provides third-party verification that structures have been designed and built in a way that should make them more energy efficient. Gifford, in contrast, held himself out as an energy efficient building expert. Since the USGBC expressly disclaimed any energy efficiency expertise, and the since Gifford did not content he was in the certification business, the federal court found that they were not competitors.

Likewise, “Because there is no requirement that a builder hire LEED-accredited professionals at any level, let alone every level, to attain LEED certification it is not plausible that each customer who opts for LEED certification is a customer lost to Plaintiffs.” In other words, the fact that a building owner might aspire to LEED-certification does not mean that Gifford cannot work on the project.

I do not know Henry Gifford, or any of the other plaintiffs in the Gifford v. USGBC suit, and I have no desire to pass judgment on him or them. Gifford may have valid, meritorious complaints about the LEED system. Just as LEED seems to be creating jobs in some areas, it may well be the cause of the demise of others. And it seems likely that some consumers will indeed feel that through LEED the USGBC has promised exactly that which Gifford says LEED does not and cannot deliver: a building that is more energy efficient than one that is not LEED-certified. Indeed, the most recent appropriations bill for the U.S. Department of Defense charged the DOD with studying this very point.

The simple fact is that Gifford alleged that the USGBC was a major player in the sustainasphere, and that he believed that was having an adverse affect on him and people like him. But what Gifford could not allege is that the USGBC was actually doing something – anything – wrong. And a fancy way of saying that is, “case dismissed for lack of standing.”

Will Congress Ban LEED Gold and Platinum Certification for the Department of Defense?

The National Defense Authorization Act for Fiscal Year 2012, otherwise known as House Bill 1540, is a thousand page window into the manner in which military activities, personnel, construction, and operations will be funded in 2012.  And buried deep within that mess, on page 788, is Section 2831: “Report on Energy-Efficiency Standards and Prohibition on Use of Funds for Leadership in Energy and Environmental Design Gold or Platinum Certification.” 

Section 2831 is a proverbial double-edged sword.  On the one hand, if included in the final Department of Defense appropriations bill, the DOD would be required to analyze and report on the costs and benefits of adopting ASHRAE Standard 189.1: Standard for the Design of High-Performance Green Buildings Except Low-Rise Residential Buildings versus adopting ASHRAE Standard 90.1: Energy Standard for Buildings Except Low-Rise Residential Buildings for the sustainable design, development, construction, and renovation of DOD buildings and structures.  The report must include details of the energy-efficiency improvements achieved and long term payback (whatever that means) resulting from the adoption of ASHRAE Standard 189.1, and a cost benefit-analysis and return on investment for energy-efficiency attributes and sustainable design achieved through LEED gold or platinum certification.

On the other hand, Section 2831 clearly and unequivocally prohibits the use of DOD funds “for achieving any LEED gold or platinum certification.”  This does not mean that DOD buildings cannot be certified LEED gold or platinum certification, but it does mean the cost of obtaining gold or platinum certification cannot exceed the cost of obtaining LEED Silver or Certified certification.

From an empirical viewpoint, this is a sound framework for evaluating the expenditures associated with LEED-certification: audit existing certified buildings and identify any causal connections between certification and energy efficiency before devoting further funding to certification.

There is also a paucity of independent study in the actual effects and benefits of LEED certification.  As the now infamous Gifford v. USGBC lawsuit illustrates, there is a genuine debate as to whether LEED-certification results in buildings that are more energy efficient.  The DOD has a decent stock of certified buildings.  An empirical study of these buildings will help to bridge this information gap.

But the funding ban also appears somewhat arbitrary.  True, there is undoubtedly some additional cost associated with Gold or Platinum LEED certification over and above Silver or Certified certification, but, in the bigger picture, does this incremental savings really justify an outright ban?  And, at the risk of engaging in some proverbial nose-cutting for the sake of face spiting, what is the basis for drawing the line at Silver and Certified certification?  After, all, if the funding decision turns on whether LEED certification results in more energy efficient buildings, why study buildings at all levels of certification?

The ban also ignores that LEED certification serves purposes beyond achieving energy efficiency.  Per the USGBC, the LEED certification program is intended to provide a benchmark for evaluating whole buildings and to be a "definitive standard for what constitutes a green building in design, construction, and operation."  In the bigger picture, this implicates the triple bottom line of social, economic, and environmental responsibility, and that means far more than just energy efficiency.  The certification process also means that the government gets third-party confirmation that the "green" building it ordered is the "green" building that was delivered.

The effect of this ban on Arkansas remains to be seen.  There are DOD projects and properties in Arkansas, and some are well known for sustainable initiative (the Air Force Base in Jacksonville, Arkansas, comes to mind).  There is always the possibility that local municipalities will follow the federal example, and that would have widespread effects in cities like Little Rock, where all new municipal buildings must be LEED certified.

In the end, the folks at ASHRE report that the Senate is in the process of drafting its own funding bill.  This bill will undoubtedly be different from the House bill.  Whether there is agreement on the DOD LEED funding ban (or anything else, for that matter), remains to be seen. 

Update: The Compressed Natural Gas Conversion Rebate Program

Friday’s post detailed the Compressed Natural Gas Conversion Rebate Program.  Here is some additional information about the Program.

Program Guidelines can be found here: http://arkansasenergy.org/media/343368/compressed%20natural%20gas%20rebate%20program%20criteria.pdf

“Reservation Request” and Application Forms can be found here: http://arkansasenergy.org/ar-clean-cities/incentives-and-programs/compressed-natural-gas-(cng)-conversion-rebate-program.aspx

And the Arkansas Economic Development Commission’s Energy Office homepage can be found here: http://arkansasenergy.org/

Arkansas Announces the Compressed Natural Gas Conversion Rebate Program

One result of the increasing prevalence of natural gas “fracking” in Arkansas is increased debate about the environmental consequences of the practice, including whether natural gas should really be considered a “renewable” (and sustainable) fuel resource. This is an important debate, but it should not obscure the fact that natural gas is a part of the clean energy economy and appropriately considered part of a diverse energy portfolio.

This is the premise of the Compressed Natural Gas Conversion Rebate Program, announced today by Governor Beebe. According to a press release on the Program from the Arkansas Economic Development Commission Energy Office,

The CNG Conversion Rebate Program will decrease our dependence on foreign oil and decrease our greenhouse gas emissions by providing an incentive rebate program to accelerate the use of alternative transportation fuel for government vehicles, fleet vehicles, taxis and mass transit.

When he announced the Program, Governor Beebe was singing from the same hymn book, commenting, “One of the hurdles to increasing the use of alternative fuels is building or converting infrastructure to make these fuels economically feasible. This program will encourage the use of less-expensive American fuel and that helps Arkansas’s economy.”

The Program will be administered by the Arkansas Energy Office, which is a division of the Arkansas Economic Development Commission, and will make use of $2.2 million in stimulus funds. Here are the nuts and bolts of the Program:

• Eligible applicants are Arkansas state government agencies, institutions of higher education, cities, counties, school districts, and private fleets. A fleet is 10 or more vehicles.
• Eligible fleets must convert or purchase at least four vehicles.
• Program rebates will be 50% of the conversion cost or the incremental cost of purchasing new compressed natural gas vehicles. The rebates cannot exceed $25,000 per vehicle and will be paid directly to the fleet operators following the purchases or conversions.
• Conversion kits must be installed according to National Fire Protection Association standards and must be EPA certified.

The rebates are available on a first-come, first serve basis until December 31, 2011, or until the funds are depleted. This is a tight deadline, and those interested in a rebate should not sit on their hands.

The process is also a bit unusual. As opposed to simply applying for a rebate, interested parties must first submit a “reservation request form” to the Arkansas Energy Office. Once the form is received, and assuming it is in order, the Energy Office will reserve the requested funds for 45 days. The interested party must complete the conversion work or the purchase in that 45 day timeframe and then submit an application for the rebate. Funds will be reallocated if no application is received during the 45 day grace period.

In addition to the Compressed Natural Gas Conversion Rebate Program, the Arkansas Energy Office is dedicating $470,000 toward the development of at least two compressed natural gas refueling stations.

This is a step forward for the clean energy economy of Arkansas. The Rebate Program, particularly in tandem with the funds dedicated to the development of natural gas refueling stations, will contribute both to the emerging clean energy culture in Arkansas and to the development of long-needed clean energy infrastructure. The Program should also spur some job growth, even if temporary, since someone is going to need to actually do the conversions and build the refueling stations.

The Arkansas Energy Office will begin accepting Reservation Requests on August 19, 2011.

 

(Department of Deciphering Pictures: It's a natural gas molecule.)