Permit Extension and Streamlining Bill Signed into Law

Landowners will be interested to hear that on May 4, Governor Scott signed HB 503. The bill extends some environmental permits and development orders and streamlines some environmental permitting procedures. The permitting extension applies to any "any building permit, and any permit issued by the Department of Environmental Protection or by a water management district pursuant to part IV of chapter 373, Florida Statutes, which has an expiration date from January 1, 2012, through January 1, 2014." Eligible permit holders may notify the permitting agency that they intend to take advantage of the bill's two-year extension. The extension generally operates in addition to the legislative permit extensions from recent years, such as the similar measures passed in 2009, 2010, and 2011.

HB 503 has also been a topic of discussion this session because it streamlines some environmental permits. The summary from the staff analysis of HB 503 lists the most important changes:

• Prohibiting a local government from conditioning the approval for a development permit, after July 1, 2012, on an applicant obtaining a permit or approval from any other state or federal agency.
• Providing conditions under which the DEP is authorized to issue permits in advance of the issuance of incidental take authorizations as provided under the Endangered Species Act.
• Expanding the use of internet-based self-certification services for certain exemptions and general permits.
• Exempting injection wells under the State Underground Injection Control Program from permitting under part III of chapter 373, F.S.
• Requiring action on certain permit applications within 60 days of receipt of last timely requested material; precluding state agencies from delaying action because of pending approval from other local, state, or federal agencies. 
• Providing for the DEP to obtain an expanded state programmatic general permit from the federal government for certain activities in waters of the U.S. governed by the Clean Water Act and Rivers and Harbors Act.
• Revising the voluntary site cleanup program by raising the priority ranking score from 10 points or less to 29 points or less, and excluding expenditures associated with program deductibles, copayments, and limited contamination assessment reports from state restoration funds available for low scored site initiatives. 
• Providing that the transfer of title for a petroleum contaminated site to a child of the owner or a corporate entity created by the owner to hold title for the site does not disqualify the site from financial assistance.
• Providing expedited permitting for any inland multimodal facility receiving and/or sending cargo to and/or from Florida ports.
• Authorizing certain zones of discharges to groundwater for existing installations.
• Providing that sludge from a waste treatment works is not a solid waste.
• Allowing byproduct from the creation of renewable energy that is recycled to count towards the state recycling goal.
• Exempting new solid waste disposal areas at an already permitted facility from having to be specifically authorized in a permit if monitored by an existing or modified groundwater monitoring plan; extending the duration of permits issued to solid waste management facilities that are designed with a leachate control system and those without a leachate control system if certain conditions are met.
• Providing a general permit for a stormwater management system under 10 acres may be authorized without agency action.
• Expanding the definition of blended gasoline, defines the term ‗alternative fuel‘, and authorizes the sale of unblended fuels for certain uses.
• Extending certain ERP and development permits for 2 years after its previously scheduled date of expiration.

HB 503 will take effect July 1, 2012.

EPA Moves Toward Regulation of Forest & Silviculture Road Runoff

In a move that will interest forest landowners, the Environmental Protection Agency is working toward regulation of forest and silviculture runoff. Congress has stayed NPDES permitting for forest roads until October 1, 2012 through its Omnibus Appropriations Bill. Even so, Bloomberg is reporting that EPA has written a draft notice of intent to regulate discharges from forest roads if the roads collect stormwater in ditches, culverts, or other measures to channel runoff. The article is not yet available for free online.

EPA sent the notice to the White House Office of Management and Budget for review, but it has not yet made it public. EPA stated that it "is considering flexible options including non-permitting options that recognize the vastness, diversity, and complexity of the nation's logging road network and existing effective federal, state, local, and tribal best management practice frameworks." This is good news, since some have argued that the Ninth Circuit's ruling could actually lead to worse water quality. Ultimately, EPA will need to seek public comments on any rule it develops under the Clean Water Act to regulate forest and silviculture runoff under the NPDES permitting program.

EPA's action is a result of an August 2010 decision by the Ninth Circuit that struck down EPA's so-called Silvicultural Rule. The Ninth Circuit issued another opinion reaffirming that decision in May 2011. Look for my upcoming article explaining the history of this dispute and Ninth Circuit's opinion soon.

Edit May 2, 2012: Although the U.S. Supreme Court usually reviews cases after it asks the Solicitor General to brief them, one news source reports that the Solicitor General will urge the Supreme Court not to take the petition.

Yankeetown Litigation Settled by Community Planning Glitch Bill

Governor Scott signed the Community Planning Glitch Bill.The bill corrected a number of problems with last year's Community Planning Act, including approving language settling Yankeetown v. DEO (37 2011 CA 002036). Yankeetown had asked the court to declare that the Community Planning Act, HB 7207 (ch. 2011-139, Laws of Fla.), was unconstitutional. The real problem was that the Act did not grandfather previously-enacted local government comprehensive planning referendum requirements when it prohibited them.

The docket for the case shows that the Yankeetown filed a notice of voluntary dismissal earlier this month. That means the case is over, and the Community Planning Act appears safe from constitutional attack. Some are celebrating "the will of the people," but only time will tell whether the communities that have kept their referendum requirements will be better off for it.

Background on Sackett from the Environmental Consultant

Earlier this month I wrote about how the U.S. Supreme Court gave the Sacketts the right to take the EPA to court over the EPA's compliance order finding the their property to be wetlands. Take a look at the interesting discussion going on at the LinkedIn page of ABA Section on the Environment, Energy, and Resources Law's. Ray Kagel, Jr., of Kagel Environmental, LLC writes about the background of the Sackett case. His firm had involvement early on working with the Sacketts. It seems their neighbor had also been subject to EPA enforcement actions:

When Mike and Chantell Sackett asked us (Kagel Environmental, LLC), to perform a wetland assessment of their personal homesite property located at Priest Lake, Idaho, we agreed to their request since we had already traveled to northern Idaho to provide expert testimony at a federal trial whereby Sackett's neighbor, Jack Barron, had been criminally charged for allegedly filling 4 acres of wetlands associated with the construction of his retirement home. Upon digging several soil [test] pits on the approximate .6 acre Sackett homesite, it became clearly evident to us that the major portion of Mike and Chantell's property was NOT a jurisdictional wetland. To their demonstrated courage and resolve, their unshakable belief in our professional [wetlands] opinion, and to the credit and excellent legal representation by the Pacific Legal Foundation, a unanimous Supreme Court handed down a serious spanking to the EPA as a consequence of their "high handedness" against private property owners everywhere. My firm anticipates a return to the Sackett homesite to complete a more comprehensive identification and/or delineation of jurisdictional wetland resources later this year in hopes of helping Mike and Chantell to reach final, and satisfactory resolution to a nightmarish ordeal that unfortunately is far from unique to the Sacketts'. By the way, after an 8-day trial whereby EPA and Corps of Engineers wetland experts tried to convince a 12 member jury that his entire 4-acre homesite was jurisdictional wetlands, the jury determined that Mr. Barron's wetland consultants demonstrated stronger scientific evidence to the contrary, and Barron was therefore acquitted of all 4 felony counts upon which he'd been indicted.

This was interesting to me because I had been wondering why the EPA started looking at the Sacketts' property. It will be interesting to see how Mr. Kagel's firm is able to help the Sacketts reach a final resolution in their case.

EDIT 4/28/12: Here is a story about Jack Barron's plight.

Property Owners Win the Right to Take EPA to Court

In January, I wrote about the U.S. Supreme Court hearing Sackett v. EPA. On March 21, the Sacketts won their case. Landowners should be happy with this opinion. As the Wall Street Journal wrote, "these are hard times for economic liberty, but the [Court has] offered a modest reason to hope." One attorney wrote about the decision:

Justice Antonin Scalia found it easy to give Mike and Chantelle Sackett their day in court. Writing for a unanimous Supreme Court in the case of Sackett v. EPA, Justice Scalia said that the EPA could not find that the Sacketts had illegally filled wetlands on their property, order them to remove the fill, and then threaten them with penalties without allowing them to appeal the order. The outcome in the case had been widely predicted based on the sympathetic plight of the plaintiffs, which had moved the case into the mainstream media and the stump speeches of presidential candidates. When due process allows a driver to appeal a parking ticket before paying it, providing the Sacketts the opportunity to seek judicial review of EPA’s administrative enforcement order without having to wait for EPA to first sue them was not much of a stretch.

Justice Alito had asked during oral argument: "If you related the facts of this case as they come to us to an ordinary homeowner, don't you think most ordinary homeowners would say this kind of thing can't happen in the United States?" This time, the Court was on the side of ordinary homeowners. Following this line of thought, another commentator described the potential property rights implications of the case:

The Court stressed that it was not deciding whether Michael and Chantell Sackett will win their court case, but only that they had a right to file it at their choosing, now that the EPA “compliance order” is final. The decision reflected the strongly negative reaction most of the Justices had to the denial of a right to sue when this case was argued in January. Justice Samuel A. Alito, Jr., who was among those protesting most strongly at that hearing, wrote a separate opinion Wednesday complaining that the scope of the Clean Water Act’s application to private property is unclear, and Congress or the EPA should move to clarify it. Alito also argued that the treatment of the Sacketts, and others denied a right to sue EPA, was “unthinkable” in a country that values due process.

When the Sacketts take the EPA to court, they are expected to argue that their property is not even a wetland. Stay tuned.

First Quarter 2012: Recent Florida Environmental and Land Use Case Law

The Florida Bar's Environmental and Land Use Law Section has posted my column on the environmental and land use cases in Florida that you need to know about in the first quarter of 2012.

• Graves v. Pompano Beach, 74 So. 3d 595 (Fla. 4th DCA 2011), establishing that plat approval does constitute a development order under section 163.3215, Florida Statutes, reversing the court's previous opinion upon rehearing.
• Martin County Conservation Alliance v. Martin County, 73 So. 3d 856 (Fla. 1st DCA 2011), confirming on rehearing sanctions imposed on environmental organizations under section 57.105, Florida Statues, as they were held to have pursued appellate review without any foundation in law or fact.
• St. Johns River Water Mgmt District v. Koontz, 2011 WL 5218306 (Fla. Nov. 2, 2011), declining to recognize an exaction under U.S. Supreme Court precedents Nollan and Dolan because the theory is applicable only to exactions involving real property.
• Venice v. Gwynn, 2011 WL 6934531 (Fla. 2d DCA Dec. 30, 2011), stating that ordinances that do not deprive all or substantially all of a property’s value fail the Penn Central test and thus do not violate the Constitution as uncompensated taking of property.

Take a look at past posts for previous cases I've summarized. As usual, please email me with recent cases that others need to know about.

Community Planning Glitch Bill Headed to Gov. Scott's Desk

House Bill 7081 is headed to Governor Scott's desk after being passed by the Senate yesterday. The bill approves language settling Yankeetown v. DEO (37 2011 CA 002036). Yankeetown had asked the court to declare that the Community Planning Act, HB 7207 (ch. 2011-139, Laws of Fla.), was unconstitutional. The real rub for Yankeetown was that the Act did not grandfather previously-enacted local government comprehensive planning referendum requirements when it prohibited them. This glitch reportedly also affected Longboat Key, Key West, and Miami Beach.

The House staff analysis is available here. It notes some other effects of the bill:

• clarifying provisions relating to the coordination between local governments and military installations regarding local land use decisions;
• providing criteria for municipalities and the unincorporated area within a county to use in determining population projections;
• removing criteria that exempts certain municipalities from being signatories to the school interlocal agreement as a prerequisite to implementing school concurrency, because school concurrency is now optional, and restoring criteria to exempt certain municipalities from being a party to the school interlocal agreement; 
• extending the time for the state land planning agency and the Administration Commission to issue recommended and final orders, since the current time requirement is unworkable, and providing a time requirement for the state land planning agency to issue a notice of intent for a plan amendment adopted pursuant to a compliance agreement;
• deleting a required annual report by the Department of Economic Opportunity related to the optional sector plan pilot program.

Environmental and Land Use Considerations for Real Estate Transactions 2012

The Environmental & Land Use Law Section and the Real Property, Probate & Trust Law Section of the Florida Bar are jointly hosting an upcoming Continuing Legal Education Seminar that should interest real property attorneys. It will also be useful to attorneys involved at any stage of the development process who want to gain a better understanding of the environmental and land use components of that process.Past feedback from this CLE has been very positive.

The CLE, entitled "Environmental and Land Use Considerations for Real Estate Transactions 2012," will be April 20, 2012, at the Tampa Airport Marriott. The schedule is below. I am co-chairing this CLE program, so please email me if you have any questions.

8:00 a.m. – 8:30 a.m. Late Registration

8:30 a.m. – 8:45 a.m. Welcome & Case Study Introduction
Eleanor W. Taft, Eleanor W. Taft, P.A.
Jacob T. Cremer, Hopping Green & Sams, P.A.

8:45 a.m. – 9:30 a.m. Contract Issues for Land Transactions for Properties with Environmental & Land Use Concerns
Barry B. Ansbacher, Ansbacher & Associates, P.A.

9:30 a.m. – 10:15 a.m. Practical Considerations for Incorporating Sustainable Development into Real Estate Projects
Nicole C. Kibert, Carlton Fields

10:15 a.m. – 10:30 a.m. Break

10:30 a.m. – 11:15 a.m. Growth Management after the Community Planning Act
Adam J. Gormly, Hillsborough County Attorney’s Office

11:15 a.m. – 12:00 noon Local Government Land Use Hearings: What Does QuasiJudicial Mean, Anyway?
Laura B. Belflower, Laura B. Belflower, P.A.

12:00 noon – 1:15 p.m. Lunch (on your own)

1:15 p.m. – 2:00 p.m. Old & New: Bert Harris Issues and Property Rights Cases (Including Koontz)
Ronald L. Weaver, Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.

2:00 p.m. – 2:45 p.m. Who Controls Entitlements and Permits after Foreclosure?
Jason E. Merritt, Hopping Green & Sams, P.A.

2:45 p.m. – 3:00 p.m. Break

3:00 p.m. – 3:45 p.m. Wetlands Permitting Issues
Amy Wells Brennan, SWFWMD

3:45 p.m. – 4:30 p.m. Sovereign Submerged Lands Issues: Permitting & Leasing
Virginia C. Dailey, Hopping Green & Sams, P.A.

Legislation Settling Yankeetown Case Approved by House & Senate

I wrote back in December about the legislation that would settle the Yankeetown litigation. In Yankeetown v. DEO (37 2011 CA 002036), Yankeetown asked the court to declare that the Community Planning Act, HB 7207 (ch. 2011-139, Laws of Fla.), was unconstitutional.

As readers of this blog will recall, the parties reached a settlement agreement that required them to use their best efforts to pass legislation that would cure Yankeetown's main issue and allow it to continue to use its referendum process for its comprehensive plan amendments. Language that appears to meet the requirements of the settlement agreement has been passed in both chambers, although the chambers will have to settle the other diferences.

House Bill 7081 passed in the House on February 16th. Senate Bill 440 passed in the Senate yesterday. The bill was sponsored by Senator Bennett, one of the principal authors of the Community Planning Act. The relevant language in the bill, with additions underlined, reads:

163.3167(8) An initiative or referendum process in regard to any development order or in regard to any local comprehensive plan amendment or map amendment is prohibited. However, any local government charter provision that was in effect as of June 1, 2011, for an initiative or referendum process in regard to development orders or in regard to local comprehensive plan amendments or map amendments, may be retained and implemented.

The Governor will still have to approve this language for it to become law. Judging by the strong support in both chambers for it, it seems likely that he will. The status of his action on bills is here. Then the parties would have to go back before the court to finish the settlement process. Stay tuned for this and other legislative updates. I'll be watching as the 2012 legislative session winds down.

Green Leases: Something Old or Something New?

The American Bar Association's Smart Growth and Green Building Committee's newsletter recently published an article I coauthored with my colleague here at Hopping Green & Sams, Ralph DeMeo. The article introduces the risks, rewards, incentives, and costs of green leases. It's titled "Applying Old Methods to New Values: Considerations for Green Leases."

This accessible article recognizes that, as green building becomes more popular around the country and in Florida, leases of these green spaces-commonly called green leases-have become more popular. Ralph and I conclude that a successful green lease must give both the landlord and tenant incentives to conserve energy, reduce waste, increase recycling, and use environmentally friendly products and materials. The text is excerpted below.

APPLYING OLD METHODS TO NEW VALUES:

CONSIDERATIONS FOR GREEN LEASES

Am. Bar Ass’n Smart Growth & Green Buildings Committee Newsletter 18 (Jan. 2012).

            Commercial leasing firms and agents are becoming more adept at using the green building movement as a business strategy and marketing tool. Many companies report that their shareholders and customers are pressuring them to green their portfolios. By 2009, 82% of large American corporations were expected to have “greened” 16% or more of their real estate portfolios, and 18% were expected to have greened 60% or more of their real estate portfolios. Susan Coleman, Green Leasing, 569 PLI/Real 539, 541 (2009)(citations omitted).

Even in these slow economic times, the green building movement is still relevant because it can help landlords and tenants reduce building operating costs. Yet, even today, when advertisers call everything from coal to Barbie green, the green lease may seem like unfamiliar territory. Green leases, which are simply leases of space in green buildings, are after all based on new (and constantly changing) green rating systems. See Geoffrey White, Joshua Nichols, & Jeff York, Green Building Rating Systems and Green Leases, 41 Envtl. Rep. News & Analysis 10049, 10057 (2011).Upon closer examination, however, we see that, while the systems may be new, the methods are not. Green leases are actually surprisingly familiar: the position of the landlord vis-à-vis the tenant is the same as ever.

            Do green buildings and green leases lead to new or unsuspected liability on the part of landlords, builders, and others? A recent panel of knowledgeable attorneys convened by the U.S. Green Building Council was skeptical. Instead, the panel called green building liability “new wine in old bottles.” Liability could be limited through a combination of experiential knowledge and contracts – distinctly old-fashioned methods. Brendan Owens, Building Green: The Legal Risk in “Building Green”: New Wine in Old Bottles?, 565 PLI/Real 41 (2009).

I. Green Certification & Credentialing Systems

            Green leases are usually intended to function alongside a current or future green certification of a building.  Consequently, it is worth briefly considering those certification systems. Because construction methods, building materials, and architectural design are constantly evolving, green building is best understood as a malleable concept, rather than as a strict theme.  These systems measure performance by using benchmarks to evaluate the environmental impacts of development. The six most common benchmarks are site location, energy conservation, water conservation, material selection, indoor air quality, and building operations and maintenance.

 In some cases, state and local governments mandate these performance standards in order to increase construction and operation of green buildings. For example, in 2008, Dallas adopted a green building ordinance that incorporates Leadership in Energy and Design (LEED), Energy Star, and American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE) standards.

                       

            By far, the most well-known system in the United States is the U.S. Green Building Council’s (USGBC) LEED program. LEED was developed in 1993 and updated in 2009 to version 3.0. It is a voluntary point-based system used internationally as a third-party green building verification system. It evaluates all six of the standards mentioned above by awarding points for various performance levels. LEED certification is achieved at different levels depending on points accumulated.

            LEED now encompasses a wide universe of services and procedures, including an appeals process for certification decisions, numerous professional certifications, and multiple issue-specific rating systems. LEED evaluates commercial and residential buildings, and it can be used through a building’s lifecycle—design, construction, tenant buildout, operation, and renovation. Recently, it has even been extended to neighborhood design by evaluating community planning & design.

Other important green building rating systems include:

• BREEAM, established in 1990 by the Building Research Establishment in the United Kingdom, which is similar to LEED but is more widely used outside the United States;
• Green Globes, an online building assessment tool used for new and existing residential and commercial structures developed in the United Kingdom and Canada, which is supported as a standard by the American National Standards Institute (ANSI);
• Energy Star, a system originally for rating appliances and electrical devices developed by the U.S. Environmental Protection Agency and the Department of Energy, which has been expanded to include whole-home and commercial building efficiency;
• GGHC, the leading green building initiative in the health care industry, created by the American Society for Healthcare Engineering in 2002, which is a self-certifying system that borrows from LEED; and
• Standard 90.1, a building energy-rating system, developed by the ASHRAE and other industrial organizations.

See White et al., at 10053-56. Another aspect of the green industry that may be relevant to a green lease is whether the professionals involved in the project have green credentials. Not only are buildings becoming greener, but lawyers, accountants, and other professionals are doing so, too. Although there is still a good deal of debate on the value of these credentials, by 2009 there were more than 100,000 LEED-certified professionals (by far the most important credentialing program). Real Life Leed, http://www.reallifeleed.com/2009/04/its-official-100000-leed-aps-worldwide.html (April 22, 2009).

            The LEED professional credentialing program has recently been overhauled. The most significant update is a membership system, where each tier has specific eligibility requirements and continuing education requirements. The new program is catching on quickly: within one year of its release, LEED certified more than 10,000 Green Associates. Green Bldg. Certification Institute, “GBCI Celebrates 10,000 LEED Green Associates,” http://www.gbci.org/org-nav/announcements/10-08-18/GBCI_Celebrates_10_000_LEED_Green_Associates.aspx (Aug. 18). There are three tiers:

• A LEED Green Associate demonstrates competence in understanding and supporting green design, construction, and operations.
• A LEED AP+ demonstrates depth of knowledge and experience in one of several particular fields, including commercial building design & construction, commercial operations & maintenance, commercial interiors, residential design & construction, and neighborhood development.
• A LEED AP Fellow demonstrates special leadership and longtime service in the green building and design field.

II. Green Leases

            Because most corporate space in the United States is leased, green leases are a natural consequence of the green building movement. Recall that a green lease is a lease of space in a green building. There is no legal definition of a green lease.  Generally, a successful green lease encourages green goals or objectives through cooperation.  Leases can be as simple as a boilerplate lease with a few sustainability concepts added, or they can be much more complex, adding measurable performance standards, allocating costs depending on which party acts to conserve energy costs,  and providing the parties with specific remedies if the other fails to perform its green obligations. See, e.g., Jonathan Cohen & Theodore I. Yi, Green Leasing from the Tenant’s Perspective: What to Look for and What to Avoid, 571 PLI/Real 315, 317 (2009).

Landlords are interested in implementing green leases for a number of reasons, including marketing efforts, increased rental income, claiming tax or carbon credits, receiving government subsidies, or complying with state and local energy conservation laws. Because of these interests, landlords will want build out (i.e., completion) standards that ensure the building’s eligibility for green certification, maintenance and repair obligations that comply with certification standards, and cost-sharing for green certification or conversion to alternative energy sources and other conservation measures.

Green lease tenants face a number of issues that could put them at odds with a landlord. Generally, tenants want the lease to give standards for how the building or space will be delivered, to explain how the tenants’ actions affect green ratings or credentialing, to require cost-sharing for installation and operation of any special monitoring equipment, and to allow for self-help remedies if the landlord fails to achieve or maintain specified sustainability standards. On the other hand, tenants usually will want to avoid the disproportionate pass through of building-wide sustainability costs, requirements to obtain utilities from the landlord, and allowing the landlord to limit its obligation to ensure that the building and its systems meet sustainability standards. See Cohen & Yi, supra, at 318-20.

            As these different interests make clear, the biggest challenge to both parties in implementing a green lease is to align incentives properly. For example, the pure (or triple) net lease, which is especially common in commercial real estate and passes on the costs of real estate taxes, building insurance, and maintenance to the tenant, does not encourage the landlord to invest in conservation measures because the landlord will not share in the savings. On the other hand, a pure gross lease encourages the landlord to lower operating costs because the landlord pays all those costs, but the tenant is not encouraged to moderate or conserve use. To solve this problem, many green leases use a modified gross lease that sets a base cost, which the landlord pays, and the tenant pays the increment above that base cost.

            Enforcement of green leases may also be problematic. Some leases are accused of being “greenwashed,” where they simply provide a tenant with a green how-to handbook, with no performance standards or enforcement mechanisms. But how can a green lease have enough teeth to correct a wayward party? Consider that, although a tenant’s breach could result in the loss of green certification, a green tax credit, or business goodwill, traditional legal remedies would have to suffice for the landlord because courts seem unlikely to consider many green lease provisions as serious enough to warrant an eviction remedy. See Ronald W. Ruth, In the Spotlight: Enforcing the Green Lease, 22(5) Comm. Leasing L. & Strategy 1, 1 (2009). As a solution, a lease might prescribe its own dispute resolution mechanisms to correct the tenant’s actions. A simple lobby wallboard showing, tracking, or ranking various utilities or other statistics may be effective. For some disputes, liquidated damages or “additional rent” could be assessed against a green security deposit. For more serious disputes, a pre-determined, impartial third party sharing green values could be used to review disputes and facilitate compliance.

            Like any lease contract, landlord and tenant wish lists may not prove practicable because they are oftentimes not in the interests of both parties. There are, however, some practices that both parties will probably want to include in a robust green lease:

• Use of sustainable materials, cleaning products, and maintenance procedures
• Recycling requirements, where the landlord must provide a system and the tenant must participate
• Specify who pays for green building insurance, or for the increment above standard property insurance
• Flexibility to account for the seemingly ever-changing certification standards
• Milestones for re-evaluation of conservation goals and achievements

See generally Ellen Sinreich, The Greening of the Retail Lease: 10 Tips for Landlords and Tenants, 573 PLI/Real 143 (2009).

III. Conclusion

            This brief article has introduced the risks, rewards, incentives, and costs of green leases. The normal tensions in the landlord-tenant relationship mean that green lease provisions can be written best by applying old methods to society’s new green values. Clarity of forethought still reduces the frequency and consequences of problems.  In the end, a successful green lease must give both the landlord and tenant incentives to conserve energy, reduce waste, increase recycling, and use environmentally friendly products and materials.

Ralph A. DeMeo is a partner and Jacob T. Cremer is an associate at Hopping Green & Sams, P.A. in Tallahassee, FL. Their practices include environmental and land use law, including assisting clients in consideration of green and sustainability issues.