Legislation and Policy Brief

Article Title

"Going Green" the Wrong Way: How Governments Are Unconstitutionally Delegating Their Legislative Powers in Pursuit of Environmental Sustainability

Authors

Brandon L. BoxlerFollow

Abstract

Through either executive or legislative power, state and local governments are rapidly effecting policies that encourage environmental sustainability. Many of these policies have logically targeted buildings and infrastructure, both of which have a significant adverse impact on the environment. In the United States, 38 percent of the nation’s carbon dioxide emissions and 67 percent of its electricity usage come from buildings. New laws and policies are attempting to decrease these figures by requiring construction projects to “go green” and implement sustainable building practices. These legal initiatives have the potential to create substantial environmental benefits by reducing energy consumption, greenhouse gas emissions, and toxic waste. But in a rush to achieve these benefits, many governments have enacted green building laws that lack a firm constitutional basis.

This Article explores the constitutionality of green building laws that require developers to comply with the sustainable construction rating system promulgated by the United States Green Building Council (“USGBC”), a private, non-governmental interest group. The Article reviews how the USGBC creates the standards for its rating system and then modifies these standards without gaining approval from any governmental body, thereby changing the legal rules with which private citizens and constructors must comply. The Article argues that, because the USGBC can unilaterally change the law, many green building policies undermine political accountability and violate the doctrine of nondelegation. The Article concludes by proposing several ways that governments can enact green building policies without unconstitutionally delegating legislative power or circumventing principles of democratic governance.