Municipalities across the country are admirably striving to be the greenest of the green communities. The article addresses the potential pitfalls of turning to a single green building certification system when attempting to coax a community to practice sustainable building and development. Though the U.S. Green Building Council created the green buildings market through their revolutionary LEED® system, they now face increasingly-stiff competition from other private companies.
Concerns have already been voiced, albeit selectively, about the existence of state-level anti-trust violations and federal Dormant Commerce Clause issues. However, a real-world analysis of this issue has not been researched; until now (using Michigan as a test state while referencing relevant state statutes in Illinois and North Carolina). The article also explores 14th Amendment Equal Protection Clause issues with exclusive promotion of a premium service like LEED®.
The conclusion should be clear: municipalities would do well to not exclusively promote a green building certification system offered by a private company. Easy solutions include creating a non-exclusive list of green building certifications or creating a unique municipal code that borrows ideas from a variety of private green building certifications. In both way, the municipality will be responding to the best practices of the emerging green building market while not opening themselves up to costly litigation.
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