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Summary: A compilation of information and resources for legalizing sustainability. |
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"All truth pass through three stages:
First, it is ridiculed. Second, it is violently opposed. Third, it is accepted as being self- evident."
—Arthur Schopenhauer
"Our current codes are as effective at preventing the best practices
as they are for precluding the worst ones."
—David Eisenberg
Why Legalize Sustainability?Human activity is putting such strain on the natural functions of Earth that the ability of the planet’s ecosystems to sustain future generations can no longer be taken for granted.
Protecting and improving our future well-being requires wiser and less destructive use of natural assets. This in turn involves major changes in the way we make and implement decisions.
Nearly two thirds of the services provided by nature to humankind are found to be in decline worldwide. In effect, the benefits reaped from our engineering of the planet have been achieved by running down natural capital assets.
In many cases, it is literally a matter of living on borrowed time. By using up supplies of fresh groundwater faster than they can be recharged, for example, we are depleting assets at the expense of our children.
Unless we acknowledge the debt and prevent it from growing, we place in jeopardy the dreams of citizens everywhere...as well as increasing the risk of sudden changes to the planet’s life-support systems from which even the wealthiest may not be shielded.
Better protection of natural assets will require coordinated efforts across all sections of governments,
businesses, and international institutions. The productivity of ecosystems depends on policy choices on investment, trade, subsidy, taxation, and regulation, among others.
—The United Nations Millennium Ecosystem Assessment (reflecting the work of hundreds of diverse organizations and more than 1,360 experts worldwide)
Sustainable development meets the needs of the present without compromising the ability of future generations to meet their own needs
—World Commission on Environment and Development
Sustainability: Living on natural income, not natural capital
"The most dangerous thing we could possibly do is continue business as usual"
—David Eisenberg
The more ecologically you live, the more illegal it is.
Even as all of humanity’s life-support systems are threatened, the more ecologically you live, the more illegal it is.
Where I live in Santa Barbara for example, 20,000-sq.-ft. mansions are approved routinely, but living in a yurt is illegal. You can build an entirely passive-solar and wood-heated house, but the law also requires a fossil-fueled central-heating system. If a sewer passes the house, you must hook up to it, and pay for the privilege. Older structures are often charming in their human scale. You may wish to build a human-scale, easily heated structure like this, but the doors have to be 6'8" tall, which makes the ceilings eight feet high.
Our plumbing codes evolved to protect us from 19th-century risks. Certainly, we still need plumbing that won’t spread cholera. But while codes work hard to reduce the risk of disease from minute to infinitesimal, they miss the big picture. If we do not change our built environment to address global warming, aquifer depletion, and groundwater contamination, cholera will seem welcome by comparison.
We need to encourage research and gain more experience with super resource-efficient systems now, for an orderly transition to a post-peak world.
It would be very adaptive for humans to increase the rate of research and development on not just slightly less damaging systems, but also systems that have radically lower adverse impacts.
Under the current regime, the door is basically all the way open, or all the way shut to a given building practice. For virtually all systems that have radically lower impacts, say half or less, the door is shut.
It is worth noting that, for example, that most of the R&D that led to the best practices allowed and/or mandated by California's new green building standards was illegal.
Considering the urgency of improving standards rapidly, it is crazy that the R&D for next years standards is also illegal.
The idea here is to open the door a crack for these "growing edge" systems, to give them a chance to be developed and proven.
Then, they can be added to the main code as options, or, if warranted, mandates.
An inventory of strategies to get over, around, under or through institutional barriers to sustainability follows.
If you have a resource to suggest, or other comment, please E mail us.
Here's a good video to get for your local officials:
Building Codes for a Small Planet 
$25
This pair of graphics shows the difference in the old and emerging views of the mandate of building codes:
In the narrow view, most innovative practices don't seem that compelling, and conventional practices seem adequate.
Taking the whole picture into account, it switches: The extreme risk of conventional practices is clear, and innovation is clearly necessary to avoid or soften an otherwise certain calamity of epic proportions.
In more or less ascending order of set up difficulty... the idea is that a few percent of new systems could be built very differently under these alternate compliance scenarios, to speed the evolution towards all systems being more efficient and higher performance.
Structures that pre-date more stringent codes are often "grandfathered" in (Sample language). This is great for old technologies, but provides limited legal protection for growing edge technologies (except to the extent they overlap old ones).
Many places even in the US still do not have building codes. Federal government land, ironically, can be a great place to take shelter from local codes.
Area for research: what is the legal/ scientific basis for the legality of pooping in shallow holes in the ground in national forests, even for gatherings of 25,000 people? If it is based on science, logically it would translate to private land if properly done under appropriate circumstances.
Most codes have a section that allows Alternative Materials and Methods. These allow the local Enforcing Agency, with no oversight, to approve any alternate method/ means/ device on case by case basis, that is at least equivalent as what is required in the code body, and has the same protections for life, health safety.
How useful these are in practice is entirely up to the local administrative authority. An open minded administrative authority can use "Alternative Materials and Methods" to allow construction that meets a draft, non-adopted standard, or standards from other jurisdictions, or any other standard they wish.
Research needed: Case histories of beneficial applications of Alternative Materials and Methods.
New code language needed: guidelines/ encouragement for making the best use of AMM for innovative, resource-efficient technologies, such as
Good experimental permit language could facilitate the passage of worthy new designs through Schopenhauer's three stages of truth, above.
Raw research notes on experimental permits (doc). Sometimes there is a requirement or expectation that the results will be reviewed or published.
Research needed: Text and adoption history for experimental permit language anywhere in the world they've been used.
New code language needed: Model experimental permit language.
Various jurisdictions in the US have Alternative Owner Builder (AOB) codes, including Mendocino, Humboldt, Nevada and Butte counties in California, Cochise County, AZ, and San Juan County, WA. These allows owners to take responsibility for the design and construction of their homes. Fees are minimal. There is minimal inspection, for public safety issues, only. Sometimes there is an upper size limit.
Liability stays with the owner, not the regulators. A note to this effect may be recorded on the deed, so all future owners are informed that they are responsible for the structure's safety. Raw research notes on AOB codes (doc).
Research needed: Legend has it that these were adopted to avoid losing a court case based on counties' infringement of citizens constitutional right to shelter.True? Not true? in any case I'm sure the story is fascinating. Please send any info you've got on it.
(3) It has been determined that the adoption of regulations for limited density rural dwellings will not constitute a danger to the health and safety of the citizens of Mendocino County as long as standards for electrical, mechanical and sanitation facilities are maintained.
(4) Mendocino County has a severe housing shortage. Low cost housing is especially hard to find in the County and the adoption of regulations for limited density rural dwellings will encourage the further construction of such dwellings.
(5) State law mandates the County of Mendocino to adopt a General Plan which makes adequate provisions for housing its citizens. The adoption of regulations for limited density rural dwellings is an attempt by the County to achieve an acceptable housing inventory for its General Plan. State law further requires the County of Mendocino to provide shelter for those residents qualifying for general relief. The general welfare of the County requires the adoption of regulations for limited density rural dwellings so that all County residents may be housed.
(6) The Uniform Building Codes are complex and may be beyond the understanding of many owner-builders and home owners. Yet they allow the Building Department a great degree of flexibility in applying them giving rise to charges of lack of uniform application and that in fact virtually all structures in the County are in some degree in violation of the law. The geographical and topographical conditions of the County creates such isolation that it is difficult to conduct the necessary inspections to verify or refute this charge. Because the Uniform Building Codes are of such complexity that they are difficult to enforce under the geographical, topographical and climatic conditions of the County, common sense dictates that these codes be replaced by the regulations for limited density rural dwellings which provide a performance standard of evaluation.
This is another possibility for an alternate system for low impact, high performance buildings: You show that the building will outperform the average by a given margin (say, 80%), and will not pose a public safety hazard, and that's it: you're greenlighted.
The rationale for such a program is strong: the external costs and impacts from a building system that uses 1/5th of the resources are so much lower that it is to society's advantage to bend over backwards to encourage such structures to be built.
The benefits include:
Such a system could be tiered, with greater incentives for higher performance.
Research needed: Text and adoption history for anywhere in the world they've been used.
New code language needed: Model low impact performance code; how to measure, how to evaluate, etc.
This is another flavor of Low Impact Performance Code, with emphasis on the fact that the project is evaluated as a whole system, with explicit acknowledgement of synergy effects from subsystems fitting well together, the most fertile area for improving building performance.
The rationale for explicitly directing regulators attention to the whole picture is strong: the effects of a building are felt in reality as not as the sum of isolated parts, but as a cumulative, interconnected whole
Research needed: Text and adoption history for anywhere in the world they've been used.
New code language needed: Model Integrated Design Standard; how to measure, how to evaluate, etc.
You could argue that there it is much less of a jump to low impact, sustainable permanent settlement from camping than it is from current building patterns. Ditto for low income housing. Many jurisdictions likely have camping ordinances on the books that could be adapted (as is or with modification) to enable safe, ultra low-impact housing. Dignity Village in Portland, where many formerly homeless live, is one example.
Santa Barbara County Camping Ordinance
Sec. 24-5.3. Sleeping or camping in certain areas prohibited—Generally—Exceptions. It shall be unlawful for any person to sleep or camp between the hours of one half hour after sunset of one day and 6:00 A.M. of the next day, whether inside or outside of a vehicle in or on any: (a) Public road, or (b) Public property, except that up to five vehicles may be parked in a used for overnight sleeping in the county parking lot adjacent to the county administration building and if following conditions are met: (1) The county has entered into a management agreement under which the contracting party agrees to assume administration and management of a program to oversee such use of the county administration parking lot. (2) The management agreement referenced above satisfies all county concerns regarding liability, due process, evictions, fair housing notice and employee safety. (3) All vehicle occupants enter into a written agreement with the contracting party in a form approved by the county and comply with all terms and conditions of that agreement. (c) Private property, including but not limited to beaches, vacant lots, parking areas and commercial properties, unless the person sleeping or camping in or on such private property; (1) Is the owner thereof or the lessee of such property or the house guest of such owner or lessee, or (2) Has the permission of the owner of such property, his agent or the person in lawful possession of such property and sanitary facilities approved by the health officer of the county are available on such property to the person sleeping or camping in or on such property. (Ord. No. 4330, § 1; Ord. No. 4514, § 1; Ord. No. 4531, § 1; Ord. No. 4547, § 1; Ord. No. 4574, § 1) Sec. 24-5.2. Definitions. Unless the particular provisions or the context otherwise requires, the definitions contained in this section shall govern the construction, meaning and application of words and phrases used in this section. (a) "Camp" means to pitch or occupy camp facilities; to use camp paraphernalia. (b) "Camp facilities" include, but are not limited to, tents, huts or temporary shelters. (c) "Camp paraphernalia" includes, but is not limited to, tarpaulins, cots, beds, sleeping bags, hammocks or noncounty designated cooking facilities and similar equipment. (d) "Public property" means all property owned or controlled by the county. (e) "Road" means the same as defined in section 28-1 of this Code. (f) "Sleep" means the natural, regularly recurring rest for the body, during which there is little or no conscious thought. (g) "Temporary shelter" means any shelter not authorized by, or approved by, the County of Santa Barbara building department for permanent occupancy. (h) "Vehicle" means the same as defined in section 23-16 of this Code. (Ord. No. 2009, § 2; Ord. No. 4330, § 1)
Research needed: Text of camping codes from diverse jurisdictions, and examples of their use to allow semi-permanent, low impact camping on people's own land.
New code language needed: Model camping ordinance.
A new flavor of preserve, along the lines of agricultural preserves or conservation easements. The concept here is that the owner takes their land out of the McMansion potential pool, and agrees to binding reduction in negative impacts to the earth's life support system commons. In return, they get lower taxes (the land is now less valuable, because you can't build a 10,000ft2 house on it), and can/must use alternative compliance paths for any building on the property, such as the low impact performance code, or experimental permits.
Compliance could be ensured by a third party that holds the easement, as is the case with habitat conservation easements.
Research needed: Investigate history and properties of other kinds of easements and preserves.
New code language needed: Model conservation living preserve language.
Specific sites can be designated for higher ecological or performance standards, and/or more leeway to try new approaches.
This could be a natural extension of an environmentally sensitive habitat designation, conservation zoning, agricultural or nature preserve, etc.
For example, The Battery Park City in lower Manhattan (where the World Trade Center was) has very high green building and development standards. To enable these to be attained, they created an authority to negotiate and champion integrated designs on behalf of all the design teams and developers with all the various regulating entities. This was very effective to remove barriers streamline approvals.
Another existing example is the New Mexico Sustainable Development Testing Site Act, created through the efforts of Michael Reyolds of Earthship Biotecture, and adopted in July of 2007:
Providing for the approval of areas to be used for nonindustrial research and testing designed to reduce the consumption of and dependence on natural resources by residential development; providing that specified county codes, ordinances, rules and permits are not applicable to certain research activities within an approved area.
The drama of this effort is captured well in the video The Garbage Warrior (view trailer).
The University of California and state college campuses would be well-suited to this work, perhaps making housing for students in the Education for Sustainable Living program.
Research needed: Text and adoption history for anywhere in the world they've been used.
New code language needed: Model language for experimental zones, zoning and designation of individual sites.
A code compliance package comprises all the information you need on both sides of the counter to design, evaluate, approve, inspect, and monitor this or that alternative technology.
These can be generated by anyone. The US Green Building Council code committee is beginning work on some of these. DCAT has a general checklist for alternative construction approval. An inspired homeowner could generate them, as can local jurisdictions or code councils.
They consist of a template, including checklists, handouts, drawings, forms, references, justification with respect to specific code sections, case studies, precedents, references, criteria for approval, inspection guidance, monitoring or follow up if needed.
They can provide a standard formula for approval in a given jurisdiction. Codes give almost God-like powers to local administrative authorities. Without changing the codes themselves, a local jurisdiction can come up with a formula for negotiating the code in a way that they will accept. I am made such a package for greywater system approval for the city of Santa Barbara. It is a handout they give you from the building department counter with a few design options, complete with technical drawings. You just check off which options apply to your site and hand it back to them.
Research needed: Examples of code compliance packages.
Materials needed: More code compliance packages.
Many codes specifically state that they are not meant to exclude everything that isn't specifically enumerated in the code.
When a jurisdiction challenges a professional judgment by an engineer or architect that this or that approach is valid, and request a change, they are in essence:
If a jurisdiction prevented from building with adobe, and you build with 2x6's instead, and your house burns down, they might be opening themselves to a lawsuit.
Likewise if they required a moisture barrier in a strawbale wall (which is inadvisable, non-standard practice that could prevent drying), and the wall rots, they would be vulnerable to a lawsuit.
Thanks to David Eisenberg of the Development Center for Appropriate Technology for the three scenarios above.
Research needed: Examples of past challenges or challenges in progress.
A specific case of the performance code concept above. Could be an ordinance, or a legal defense. The premise is that global climate disruption constitutes such a clear and present danger that
The data on climate disruption are becoming so compelling that the judiciary is starting to take note in case law.
Activists painted the name of a politician in huge letters on the smokestack of a new coal-fired generator in England that he'd subsidized. They got off the hook for tens of thousands of pounds of clean up costs using the English version of the necessity defense.
Presented with the current evidence on global warming, the Judge agreed that the clear and present danger was such that this action was legally protected in a way analogous to someone trespassing and damaging property in order to save a trapped child.
This has sent some shock waves out. (See Cleared! Jury Decides That Threat of Global Warming Justifies Breaking The Law)
The threat of global warming is so great that campaigners were justified in causing more than £35,000 worth of damage to a coal-fired power station, a jury decided yesterday. In a verdict that will have shocked ministers and energy companies the jury at Maidstone Crown Court cleared six Greenpeace activists of criminal damage.
Jurors accepted defense arguments that the six had a "lawful excuse" to damage property at Kingsnorth power station in Kent to prevent even greater damage caused by climate change. The defense of "lawful excuse" under the Criminal Damage Act 1971 allows damage to be caused to property to prevent even greater damage - such as breaking down the door of a burning house to tackle a fire.
Under these circumstances, it is madness to prevent or red-tag homes that are generating a fraction of the carbon emissions of thier neighbors, because the innovations and systems thinking that enables this level of performance are not yet in the building code.
Such a system could be tiered, with greater incentives for higher performance.
Research needed: Case law monitoring for climate disruption.
Case law precident needed: Get poster-child defendent off the hook for code non-compliance via low carbon lifestyle defense.
Concept is to protect from liability liscenced professionals who are assisting homeowners with:
1) Bringing substandard systems closer to compliance
2) Development of state of the art, high performance systems
Research needed: Good samaritan relevant case law.
Case law precident needed: Get poster-child defendent off the hook for common sense improvements to an unpermitted system.
There are various possible grounds for legal challenge to the existing system of barriers to sustainability. These include:
With all of these strategies, it is necessary to carefully consider the possibility of unintended consequences. For example, a broad victory on freedom of religion or equal protection could open the door to yet more exploitation (in the case of someone who's religion was to liquidate God's bequest of natural capital before the second coming, which is a fair characterization of, for example, the belief system of James Watt (interior secretary under Ronald Regan). I think the first two options are promising avenues for legal action.
Research needed: Examples of past challenges or challenges in progress.
"This would be a liability, sorry..." is all to often the refrain heard when proposing this or that solution. It would be interesting to appeal to lawyer's trade associations and ask for a resolution requesting members to refrain from trying suits against green technologies, and instead to direct their energy towards suing for negligence in continuing to approve conventional construction in the face of irrefutable evidence that this course of action is endangering all the earth's life support systems (see general legal challenge, above).
Activism needed: Contact lawyers associations and see if any are interested.
It's time to switch from complaining about outdated codes that mandate extremely risky practices, and write new codes for best practices that address the full spectrum of risk.
Besides the antiquated content, the system for promulgating building codes is ill-suited to the rapid innovation and deployment needed. Finally, it is pretty much held hostage by industry interests that can muster the time to understand the opaque process, afford multiple plane tickets to meetings, lobbists, lawyers, etc.
Perhaps the form of the innovative best practices code could be adapted to it's function. I picture an open-source, wiki-like, web based model, with multiple layers:
The crafting of the guidelines and election or appointment of editors would benefit from careful forethought.
This system would offer many advantages:
Action needed: Gather stakeholders, resource people/ resources, including related existing sites, define the project, locate funding for software and web development, launch it, shop it to writers/ adopters of existing codes.
The codes are not static. There is a new code each year. Many ideas that were ridiculed/ resisted found their way into regular codes, eventually. Examples abound: plywood, plastic pipe, drywall, straw bale building, gravelless infiltration galleys, greywater systems.
This can happen through local amendments (usually constrained by State law), as adoptable appendices of the model code, or in the body of the model code itself.
As the code process is highly industry influenced, the trend is in general towards more stringency, which equates with more products sold and more dollars per square foot of sale price and assessed value.
This trend may well reverse, as ecological and economic constraints trump profit maximization. This has happened with Straw Bale construction, and seems to be happening with California Greywater law, for example, see:California greywater policy center.
Research needed: Examples of inclusions past and in progress.
New code language needed: Inclusion of alternatives as options or mandates as they are proven.
Oasis Design can help your organization write code or provide expert witness services—see Consulting.
As David Eisenberg says, "the most dangerous course of action we could possibly take is to continue the status quo."
The logical consequence of continuing on the path we're on is the depletion of natural resources such as oil, trees, fish, and clean water, the failure of the natural systems that support human life on earth, the collapse of civilized institutions and the end of the rule of law. References
It would be cold comfort, but codes would not prevent one from building whatever, where ever at that point.
A basic principle of Integrated Design is that solutions be context-specific. I think all the possible legal umbrella strategies above probably have their appropriate contexts for deployment (excepting, hopefully, the last one).
At the moment, this is the approach looks best to me:
Experimental permits, experimental zones, or AOBs, or one of the other legal umbrella options above is needed that allows research and development in all manner of possibly useful systems to flourish, and successes and failures to be openly shared.
While Santa Barbara County, for example, is in no way ready for thousands of composting toilets, it is overdue for a few dozen composting toilets of different technologies that are monitored and refined for our area. In several years, as issues with ocean and groundwater pollution and depleting water resources come to more of a head, our community would have a well-founded idea of what the alternatives are
To maximize the chance that the legal umbrella would be part of the solution and not part of the problem, I suggest we write the language ourselves, and lobby to have it adopted. After a few places adopted it, it would doubtless be much easier for others to join the trend.
This work can be engaged at almost any regulatory level; city, county, state, federal, model code...
Research centers would be where various systems could be tried in integrated systems of systems, ideally with documented techniques and measured results. One possible format could be as simple as a spreadsheet showing use of resources. It is interesting that for all the hoopla around green building, natural building, etc. a simple, yet inclusive accounting of all the resources used to make and inhabit a building is a few levels of synthesis beyond what is usually seen.
As systems are proven or disproved for a given context, this information would ideally be made publicly available on the web.
A dual level wiki might be the ideal vehicle; free for all discussion, with vetted, organized and edited content as well. This is a perfect place to include
There are several things like this on the web already, including:
It seems we need a new model for codes that allows 1) for rapid evolution, 2) evaluation of integrated designs from a wide angle as well as high resolution view. Detailed, proscriptive codes are not suited for this. Performance codes along with reference to current best practices (that are not part of the code and can thus evolve rapidly and independently) might be the best model.
For example, make a requirement that the California Building Standards Commission include these "public interest" representatives (i.e. NOT industry)--
As it stands, the curent BSC law mandates that members be: an architect, licensed contractor, engineers, fire and safety officials, members of the general public.
Thanks to David Eisenberg of the Development Center for Appropriate Technology for help with this page.
If you have a resource to suggest, or other comment, please E mail us.
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