New Jersey Lawyer & Attorney : Stark & Stark Law Firm : New Jersey Law Blog

On August 19, 2010, Governor Chris Christie signed into law the Offshore Wind Economic Development Act (P.L.2010, c.57), which amends and supplements the Electric Discount and Energy Competition Act and the Global Warming Response Act.  Principally, this new legislation directs the New Jersey Board of Public Utilities (BPU) to establish an offshore wind renewable energy certificate (OREC) program, requiring a percentage of the electricity sold in New Jersey to be from offshore wind energy, and authorizes the New Jersey Economic Development Authority (EDA) to provide financial assistance to qualified offshore wind projects and associated equipment manufacturers and assembling facilities and to approve tax credits. 

 

A qualified offshore wind project is defined to mean “a wind turbine electricity generation facility in the Atlantic Ocean and connected to the electric transmission system in this State, and includes the associated transmission-related interconnection facilities and equipment, and approved by the [BPU.]”  Under the new tax credit program, the EDA may approve up to $100,000,000 in tax credits (and may exceed this amount under certain circumstances), which may be used by qualifying businesses to recover as much as 100% of their capital investment in wind energy facilities.

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Will There Be Enough Room Left on the Bottle to Advertise Their Green Credentials?

 

Recently, the New York Times published on-line an article in its Energy & Environment section regarding a movement among champagne producers in France to make their bottles about 2.3 ounces lighter.  According to the New York Times article, this reduction in bottle weight will lower the carbon dioxide that the champagne industry produces from the transportation of their product - possibly as much as 8,000 metric tons of emissions each year.  “The move comes as efforts to reduce carbon output and improve vineyard ecology are accelerating worldwide, as wine houses reduce packaging, pesticides, water use and transportation. In California, for example, winegrowers are promoting what their trade group, the Wine Institute, says are nearly 230 ‘green practices’ including methods to cut carbon emissions.” 

 

It will be interesting to see just how these champagne and wine producers communicate to the consuming public in the United States the contributions they are making to energy efficiency. In the increasingly competitive and often technically complicated green market, advertising products and services with environmental attributes in a way that is clear and understandable is no easy task and may become even more challenging once the Federal Trade Commission releases its new Green Guides. 

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In preparing or reviewing an architectural services agreement on behalf of an owner for the design of a high performance building, it is important to negotiate and settle on a standard of care to which the architect will be subject and then make sure that the architect’s professional liability insurance covers any breach of that standard.  Indeed, in designing sustainable structures an architect may be expected to improve health and energy efficiency through architecture and materials selection and to achieve certification under a particular green building protocol, such as the U.S. Green Building Council's Leadership in Energy and Environmental Design (LEED) Green Building Rating System.  However, the architect’s professional liability insurance policy may not cover the architect’s breach of an elevated or heightened standard of care or a guarantee or warranty related to certification.

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While perusing the internet, I came across an interesting article published, yesterday, online by Advertising Age.  This article indicates that the Federal Trade Commission is getting ready to release the long-awaited updates to its “Green Guides” and predicts that these new guidelines “could radically reshape how far marketers can go in painting their products, packaging or even corporate images green.”  For example, according to Advertising Age, “[t]he guides are expected to tighten standards for packaging claims such as ‘recyclable’ or ‘ biodegradable’; regulate how marketers use such terms as ‘carbon neutral’; and how quickly and close to the source of carbon output ‘carbon offsets’ must be executed[.]”
 

The FTC first issued the Green Guides, also known, more formally, as the Guide for the Use of Environmental Marketing Claims, in 1992 to assist marketers of products and services having environmental attributes to avoid running afoul of the Federal Trade Commission Act.  Over the years, the FTC has amended and supplemented the Green Guides and in 2008 the FTC held a series of workshops on the ever-expanding green product markets with an eye to broadening the scope of and the detailed guidelines within the Green Guides.  The draft updates have not yet been made available to the public on the FTC’s website, but according to an FTC spokesman quoted in the Advertising Age article, “the commission is on track to meet its schedule of issuing updated guidelines by the end of the summer, and that they’re likely to cover areas that were the subject of FTC workshops[.]” 

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On June 2, 2010, the California State Senate passed a bill known as SB 1454 that makes it illegal to use the terms “biodegradable,” “degradable” or “decomposable” or any similar term in advertising plastic products.  The reasoning behind this prohibition, according to the legislative findings, is the promotion of a public policy that requires environmental marketing claims “be substantiated by competent and reliable evidence to prevent deceiving or misleading consumers about the environmental impact of plastic products.”  The only terms relating to the green attributes of a plastic product that are expressly permitted in advertising, under the proposed legislation, are “compostable” and “marine degradable;” provided, however, that at the time of sale the plastic product bearing such term shall meet the applicable American Society for Testing and Materials (ASTM) standard specification approved by the Legislature (all such approved standard specifications being set forth in the bill).
 

The California State Assembly began considering SB 1454 shortly after passage by the Senate and has amended the bill several times since then, the most recently having occurred on August 16, 2010.  The bill passed by the State Senate, as amended from the original bill introduced on February 19, 2010, and the various legislative amendments put forth by the Assembly may be viewed by logging onto the California State Legislature’s website.

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A recent case filed with the New Jersey Superior Court in Burlington County on July 19, 2010, captioned Auburn Road Associates v. Alberto & Associates, shows just how important it is to maintain careful attention to detail when designing or planning for a high performance building.  In this case, the plaintiff alleges in its complaint that the architectural and planning services firm it had retained to assist in the planning and development of a 38,750 square-foot shopping center “failed to include energy calculations in the relevant plans for the Woowich Center project.”  The complaint charges the defendant firm with negligence and breach of contract and seeks damages in the amount of $250,000 for delays and expenditures incurred as a result of the alleged omissions.
 

The Auburn Road Associates case may or may not have merit, but it demonstrates the potentially severe consequences that professionals may suffer if they fail to do their homework in preparing plans for improvements that are intended to meet the stringent energy efficiency goals or other “green” objectives of the project owner.

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On July 15, 2010, the U.S. Department of Energy (DOE) announced that it was making available $30,000,000 in federal funds for qualified small businesses to support the commercialization of “near-term clean energy technologies,” such as innovations that utilize solar, wind, biomass or fuel cell technologies and nuclear or fossil energy through the Small Business Innovation Research program and the Small Business Technology Transfer program. Applicants may receive up to $3,000,000 over three years for research and development and distribution of these and other new technologies.

Interested small business owners may find more information about this funding program on the DOE’s website here.  The deadline for filing an application with the DOE is today, August 4, 2010, at 8 p.m. (Eastern Standard Time).

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When contracting to build a high-performance home that is worthy of the label "green," it is essential for the future homeowner to have someone on the project team who has experience in and understands energy-efficient building materials, appliances and products.  This responsibility can be delegated to the architect or a green building products and design consultant working with the architect.  Additionally, the homeowner’s contractor, although not a design professional, may be able to advise a homeowner with respect to green building materials, products and appliances.  However, whoever the homeowner chooses, at a minimum, should be accredited in a recognized green building certification protocol, such as the U.S. Green Building Council's Leadership in Energy and Environmental Design (LEED) Green Building Rating System or the National Association of Home Builders’ National Green Building Standard approved by the American National Standards Institute in January 2009.

Homeowners should also specify in their contract with the person advising on green building products and/or design just how green they want the home to be and what that means.  Indeed, recommendations and decisions in this regard may vary depending on whether the homeowner’s chief goal is protecting the environment, improving indoor air quality or saving money on energy costs.  For example, if a homeowner is primarily interested in building a home that is environmentally "sustainable," then - depending on how that term is defined - the person advising on green building products and/or design might suggest doing a "life cycle" analysis for each of the home’s principal components.  This entails a holistic evaluation of a given item’s impact on the environment at every stage of its "life," including extraction of raw materials, manufacturing and assembly, installation or delivery, maintenance, disposal and, possibly, reuse or recyclability.
 

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A person seeking to achieve certification for an energy-efficient structure under a particular green building rating system, such as the U.S. Green Building Council's Leadership in Energy and Environmental Design (LEED) Green Building Rating System should delegate to a qualified member of the project team the responsibility for assembling, reviewing and managing all required documents and obtaining certification at the desired rating level, as specified in the project manual for the proposed structure.  The architect is often the best person to carry out these tasks provided that the architect is accredited under the green building rating system selected by project owner.

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On June 17, 2010, I attended the BuildingsNY/Green BuildingsNY Conference at the Jacob K. Javits Center in New York City and was absolutely amazed at the number of vendors who were present and the array of educational programs that were available to attendees.  Although attendance did not appear to be overwhelming, probably due to the continuance of the Great Recession, the flow of inquisitive passersby was steady and enthusiasm was high at the Conference lending some credence to the notion that interest in green building can thrive even in a down economy.  I am going to make a point of attending next year.

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