In Third Parties We Trust? The Growing Antitrust Impact of Third-Party Green Building Certification Systems for State and Local Governments
Darren A. Prum
Florida State University
Robert J. Aalberts
University of Nevada, Las Vegas
Stephen Del Percio
Arent Fox LLP
June 8, 2011
Journal of Environmental Law & Litigation, Vol. 27, No. 1 2012
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.
Number of Pages in PDF File: 46
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
Date posted: June 11, 2011 ; Last revised: December 4, 2013