In Third Parties We Trust? The Growing Antitrust Impact of Third-Party Green Building Certification Systems for State and Local Governments

46 Pages Posted: 11 Jun 2011 Last revised: 4 Dec 2013

Darren A. Prum

Florida State University

Robert J. Aalberts

University of Nevada, Las Vegas

Stephen Del Percio

Arent Fox LLP

Date Written: June 8, 2011

Abstract

According to the American Institute of Architects, there has been a 50 percent increase in the number of municipalities with a green building program in place since 2007. And 24 of the country's 25 largest metropolitan areas are built around a city with green building legislation on its books. Reducing buildings' environmental impact is a noble – and critical – goal. But governments' reliance on private, third-party standard-setting organizations – and the rating systems that they promulgate – as the basis for that legislation may be legally problematic.

This Article reviews one of those potentially problematic bases: antitrust. In order to suggest antitrust risk management strategies for both public and private actors that are promulgating green building legislation, this Article traces the history of some of the country's first green building programs. It also examines the different mechanisms through which governments at the federal, state, and local levels have crafted legislation. Based on those mechanisms, it then reviews and analyzes existing analogous antitrust case law to evaluate the types of issues that could arise between third-party organizations and various levels of government.

The Article concludes by suggesting that government should not rely exclusively on a single rating system when crafting green building policy. Relevant case law teaches that private third-party organizations are historical targets of antitrust scrutiny by the courts. Accordingly, the Article presents a variety of arguments in support of the proposition that governments should create legislation that provides for flexibility in implementation and compliance.

Keywords: Antitrust, Green Building, USGBC, LEED, Green Globes, Sustainability, NAHB, ICCC 700, Austin Energy, High Performance Building

JEL Classification: K32, K21, K23, K2, H25, H20, H30, H54

Suggested Citation

Prum, Darren A. and Aalberts, Robert J. and Del Percio, Stephen, In Third Parties We Trust? The Growing Antitrust Impact of Third-Party Green Building Certification Systems for State and Local Governments (June 8, 2011). Journal of Environmental Law & Litigation, Vol. 27, No. 1 2012. Available at SSRN: https://ssrn.com/abstract=1860503

Darren A. Prum (Contact Author)

Florida State University ( email )

College of Business
P. O. Box 3061110
Tallahassee, FL 32306-1110
United States

Robert J. Aalberts

University of Nevada, Las Vegas ( email )

4505 S. Maryland Parkway
Box 456008
Las Vegas, NV 89154-6008
United States

Stephen Del Percio

Arent Fox LLP ( email )

Washington, DC
United States

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