During the 90 day Maryland General Assembly session that closed on April 13, 2009, the legislature considered over 2,600 bills. Of that number, 799 bills were successful. However, very little environmental legislation was introduced and only a few bills advancing a green building or sustainable development agenda were enacted.

Despite the very modest efforts by state elected leaders in 2009 to address any green issues, savvy businesses will find opportunities to lead and profit in matters of energy savings, improved indoor air quality, water efficiency and stewardship of resources, including opportunities advantaged by the new laws that were enacted.

This compilation is a bill by bill review of green building legislation passed by the state legislature in 2009. The determination of what is a green building bill is, admittedly, subjective and for the purposes of this exercise a wide net was cast.

The Governor has now signed the majority of these bills and a final bill signing is scheduled after this article is published, on May 21 in the State House.

SB 212/ HB 154 renews (once again) the charge of the State Green Building Council and significantly expands the responsibilities of the Council to include providing recommendations on “how to expand green building in the State” beyond government building.

SB 278/ HB315, known as the Greenhouse Gas Emissions Act of 2009, is arguably the most significant environmental legislation enacted in the 2009 session. The Act requires the State to develop plans, adopt regulations, and implement programs to reduce greenhouse gas emissions 25% from 2006 levels by 2020. MDE is required to implement measures designed to ensure that the GHG reductions produce economic benefits for the State and do not adversely affect specified communities or economic interests (including that reductions do not directly cause a loss of existing jobs in the manufacturing sector). MDE must publish a GHG emissions inventory for the year 2006, a “business as usual” projection of GHG emissions for the year 2020, and a triennial inventory update beginning in 2011. The grand political compromise that made enactment possible also requires an academic study of the economic impact of the GHG emissions reductions on the manufacturing sector (without regard to energy costs for all others), with oversight provided by a newly created task force. Finally, the bill requires several reports on the need for, and progress toward, the 2020 GHG reduction goal and any additional goal later prescribed by law.

SB 625 requires the Maryland Department of Housing and Community Development to adopt the International Energy Conservation Code and to consider changes to the International Building Code to enhance energy conservation and efficiency. The bill purportedly codifies existing practices, however, under the current law, the Energy Code for Maryland is adopted by the Public Service Commission and may be implemented by local governments. In the future, DHCH will adopt the IECC and may adopt energy conservation requirements that are more stringent than in the IECC (presumably continuing to exempt “industrialized building”?). Local governments will be required to implement and enforce (.. yes, inspect for ) the most current adopted IECC and any State modifications, within six months of State adoption. The bill also authorizes a local jurisdiction to adopt local amendments to the State IECC as long as such does not weaken any energy conservation or efficiency provisions.

HB 1567 authorizes a county or municipal corporation to establish a Clean Energy Loan Program to provide loans to residential and commercial property owners for the financing of energy efficiency and certain renewable energy projects. A property owner must repay a loan through a surcharge on the owner’s property tax bill. Under the enabling act, a county or municipal corporation that establishes a Clean Energy Loan Program may issue bonds to provide financing for loans made through the program. Flexibility is provided in how bonds may be issued, however, it is not at all clear, that local governments will use their limited bonding capacity for this program. This initiative is similar to the widely discussed Berkeley Financing Initiative for Renewable and Solar Technology (FIRST) Program that is currently in pilot.

SB 14 authorizes the Maryland Environmental Service to engage in additional types of energy projects and services, such as the production, generation or distribution of energy from renewable sources, the undertaking of energy conservation measures, and engaging in research and development studies. The bill clarifies MES authority to undertake recycling and other solid waste disposal projects. The bill allows counties and municipalities to enter into energy projects and other agreements with MES without regard to certain limitations or other provisions regulating the procurement or awarding of public contracts. Interestingly, the Public Service Commission’s authority is not restricted with respect to MES energy projects.

SB 981 expands eligibility for net energy metering by altering the definition of an “eligible customer generator” to include a customer that contracts with a third party to own and operate eligible energy generation on the customer’s premises or contiguous property. Net energy metering is defined as measurement of the difference between the electricity that is supplied by an electric company and the electricity that is generated by an eligible customer generator and fed back to the electric company over the eligible customer generator’s billing period. An “eligible customer-generator” is a customer that owns and operates, or leases and operates, a biomass, solar, or wind electric generating facility located on the customer’s premises, interconnected and operated in parallel with an electric company’s transmission and distribution facilities, and intended primarily to offset all or part of the customer’s own electricity requirements. Net metering provides an incentive for private investment in renewable energy generation.

HB 1057 also expands eligibility for net energy metering, first by making the same changes in law as provided for in SB 981. Additionally and significantly, with this bill, sources of generation eligible for net energy metering are also expanded to include micro combined heat and power (micro CHP). Micro CHP is defined as the simultaneous or sequential production of useful thermal energy and electrical or mechanical power not exceeding 30 kilowatts. Micro CHP can be installed in an individual home and typically consists of a Stirling engine that converts natural gas into both electricity and heat. Electricity generated through micro CHP can be used in the home and through net energy metering, and any excess generation can be fed into the utility grid. Heat created through the generation process can be used for hot water and space heating in the home.

HB 1171, the Alternative Energy Tax Incentive Act of 2009 exempts residential wind energy equipment used to generate electricity for a residential structure on the property from the State sales and use tax; and exempts residential wind energy equipment used to generate electricity for a residential structure on the property from State and local real property taxes. The bill also clarifies that solar energy equipment, for property tax exemption purposes, includes equipment that uses solar thermal electric energy.

HB 1363 requires local boards of education to procure, to the extent practicable and economically feasible, green product cleaning supplies for use in schools. Green product cleaning supplies are defined as those that have positive environmental attributes, including biodegradability, low toxicity, low volatile organic compound content, reduced packaging, and low life cycle energy use. Local school systems must draft specifications that provide a clear and accurate description of the functional characteristics or nature of the cleaning products to be purchased.

SB 473/ HB 1290 requires a county recycling plan to address the collection, processing, marketing, and disposition of recyclable materials from county public schools; and requiring a county to submit a revised recycling plan by October 1, 2010, but the law does not actually require ‘recycling’ at public schools.

HB 1442 expands the purposes of the Jane E. Lawton Conservation Loan Program and eligible projects under the program to include the development and use of renewable energy resources, including installation of infrastructure for renewable energy generation by local jurisdictions and nonprofit organizations. The bill also specifies additional local government entities eligible to receive loans under the program; allows a loan to be deposited in a revolving loan fund of a county’s economic development commission to provide capital for renewable energy infrastructure projects; and authorizes local jurisdictions to offer excess electricity generated from a project financed under the program for trade on the wholesale market.

SB 274/ HB 300 authorizes certain counties and municipalities to finance the costs of infrastructure improvements located in or supporting a Transit Oriented Development, including the cost for operation and maintenance of infrastructure improvements. The Maryland Economic Development Corporation may enter into agreements with certain counties and municipalities to use proceeds from a special taxing district, including Tax Incremental Financing, to repay debt service on bonds Issued by MEDCO on behalf of TOD projects. TIF supported bonds may cover the expense of construction, operation, or maintenance of infrastructure improvements and local tax revenues attributed to the development may be pledged for repayment of MEDCO bonds (.. wow!?). The bill includes guidelines for the use of a special fund and specifies that once the interest and principal on the bonds are repaid, the special taxing district is dissolved and any excess funds remaining may be used for additional TOD or may revert to the local government’s general fund.

HB 595 requires State agencies by July 1, 2010, to include in their required recycling plans a system for recycling aluminum, glass, paper, and plastic, including the placement of collection bins in locations determined to be practical and economically feasible. Each agency must begin implementation of this plan by January 1, 2012. It is unclear if this is a lessening of the current law that required beginning January 1, 1992, each State agency was required to implement a recycling plan created in part by the Office of Recycling to reduce through recycling the amount of the solid waste stream generated for disposal by the State government by at least 20% or to an amount that is determined practical and economically feasible, but in no case less than 10%?

SB273/ HB 294, is one of the bills recommended by the Task Force on the Future for Growth and advanced by the Governor, where the State is usurping traditional local government planning authority, each of which were enacted. This bill revises and increases to 12 the State Planning Policy “visions”; mandating local jurisdictions take these visions into consideration when developing planning documents and to submit a report every 2 years on those efforts to the Department of Planning; authorizing specified local jurisdictions to establish a program for the transfer of development rights within a priority funding area for specified purposes; etc.

SB 276/ HB 295 is another of the local government planning bills advanced by the Administration applying provisions concerning a smart growth annual report to specified local jurisdictions; establishing a statewide land use goal that 80% of residential growth be located within priority funding areas and not more than 5% of new developed areas be located in priority preservation areas and green infrastructure areas. The bill also requires local governments to develop a percentage goal for incremental progress towards achieving the statewide land use goal by 2012 and every three years thereafter.

SB 280/ HB 297 is one in a series of bills advanced by the Governor, where the State is usurping local government planning authority, this one intending to overturn the Court of Appeals ruling in David Trail et al. v. Terrapin Run, LLC, et al., 403 Md. 523 (2008). This bill requires that local zoning laws be changed such that zoning special exceptions (i.e., conditional uses authorized in a zoning ordinance) must be “consistent” with that a local general plan, and requires members of local government planning commissions and boards of appeal to complete an educational course.

SB 554 mandates that a septic system for a newly constructed building or one installed as a replacement system within the Chesapeake and Atlantic Coastal Bays Critical Area must use the “best available technology” for nitrogen removal. The bill requires the MDE to assist homeowners in paying the cost difference between that system and a conventional system with money from the Bay Restoration Fund, if sufficient funds are available, and allows for an income tax subtraction for the amount of the cost difference that exceeds the amount of assistance provided by MDE.

VETOED SB 721/ HB 1105 prohibits the installation of an “individual sewerage system” for residential use unless an existing onsite septic system fails and cannot be repaired or replaced by any means and the installation is approved by MDE. This is a curious statute when, today, individual sewerage systems are already prohibited by “regulation” where an adequate community sewerage facility is available. Given that there are likely fewer than half a dozen individual sewerage systems installed for residential use in the state and that these systems are substantially more expensive than septic systems, but more efficacious than a mere septic system, why ban them and future innovation? Can anyone say Luddites?

SB 47/ HB 1078 was among a number of bills that the legislature considered provided for increased public notice in the environmental permit process and addressed the issue of environmental standing. This bill requires MDE to post notice of environmental permit applications on MDE’s website and provide a method for interested persons to electronically request any additional notices related to the application.

HB 420 extends the three year Statute of Limitations in place for MDE on civil suits for violations under the Environment Article to local governments. Thus, in this significant expansion of jurisdiction, a local government must institute an action for which it has authority under the Environmental Article within three years from the date that it knew or should have known of the violation.

SB 1065/ HB 1569 is potentially the environmental legislation of the 2009 session that will have the greatest impact and be the most damning when it expands who has “environmental standing” to challenge and sue with respect to most State issued environmental permits and approvals, to individuals and associations and organizations (who are not “aggrieved” by the agency action and today, do not have a right to participate in the permit determination). By expanding standing for judicial review, eliminating contested case hearings, and providing for judicial review of certain decisions that may not currently be subject to that review, Maryland’s environmental standing standard will now be the most permissive in the nation and the bill will result in a significant increase is regulatory approvals challenged in the courts by NIMBYs and others. (To appreciate the great breadth and scope of this legislation, note that the bill contains uncodified language specifying that its provisions are severable, and should one of the provisions be held unconstitutional or otherwise invalid, the others still apply.)

SB 403/ HB 959 authorizes Prince George’s County to grant, by law, a property tax credit for real or personal property owned or leased by a certified green business. A green business is defined as a business that is certified by Prince George’s County and primarily (1) distributes, manufactures, markets, or sells green products; (2) provides services relating to green products; or (3) provides research and development relating to green products. Green products are products that are energy or water efficient, use healthy, nontoxic materials, are made from recycled or renewable resources, or make current products more energy efficient. The county may establish eligibility and certification criteria; the amount and duration of the credit; regulations and procedures for the application, certification, and uniform processing of requests for the tax credit; and any other provision necessary.

Each of the bills described above can be read in its entirety at the Maryland General Assembly website.

Thank you to the Library and Information Services group at the Maryland Department of Legislative Services for the information provided that became the basis of this article.