Best Practices Construction Law : Construction Lawyer & Attorney : Matthew DeVries : Stites & Harbison Law Firm : Green Building & LEED Litigation

There's a debate in Congress.  There's a debate in Congress between Chicago's two senators.  There's a debate in Congress between Chicago's two senators about privatization.

Last week, Bob Sechler of the Wall Street Journal described newly introduced legislation from Senator Dick Durbin (D-Ill) called "The Protecting Taxpayers in Transportation Asset Transfers Act."  The bill seeks to require that U.S. government money spent on state and local transportation projects be repaid before the assets are leased or sold to private operators.  In Sechler's words, this could "potentially crimp[ ] the ongoing national push toward privatization."   The bill could create a federal lien to project the public's investment: 

Under the bill, a federal lien would be attached to all transportation projects that have received more than $25 million in federal funding, or that are valued at more than $500 million and have received federal funding. The lien wouldn't be released until the money is repaid, based upon a depreciation formula, and "the parties agree to take action to increase transparency and public input in the privatization transaction."

Already, Jon Hilkevitch of the Chicago Tribune is reporting about a new plan to be unveiled this morning by Senator Mark Kirk (R-Ill) that challenges the method of investment proposed by Senator Durbin.  Under the proposed "Lincoln Legacy Infrastructure Development Act," Senator Kirk and his co-sponsors want to make it easier for governments to lease public transportation assets or enter into partnerships with private companies to build them.

If you are involved in the transportation construction industry, this is a fight worth watching.  The two pieces of legislation go the heart of the debate: that is, What is the proper balance of the private-sector's role in constructing roads, airports, railroads and other transportation facilities?   On one end of the spectrum is the importance of protecting the public's share of investment before major transportation projects are leased or sold.  The counter-concern is to eliminate barriers for innovative funding for highways, bridges and other infrastructure at a time when there is little to no public funds available. 

I previously wrote about whether PPPs could help revive highway and bridge construction.  I have also written about some problems with partnering on construction projects, whether you are talking about PPPs or some other partnership arrangement between owners/developers and contractors.  This will continue to be a debate in the political halls, but doing nothing is not an option.

Image: Thomas Hawk

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Living in the SEC at this time of the year is exciting!  The competition is fierce and everyone has their favorite.  And I am not talking about football . . .

Last week, I highlighted that Tennessee Lt. Governor Ron Ramsey was speaking to a group of contractors in Nashville at the annual convention for the Associated General Contractors of Tennessee.  At the same time Ramsey was commenting that Tennessee should be the "green leader in the South," a four-member panel in Birmingham, Alabama urged business leaders to take advantage of its central location and become "the epicenter of green for the South."

Going Green: Sustainability in Tough Economic Times, which was sponsored by the Birmingham Business Journal, featured a number of green business executives who touted the region's ripeness for growth: "The Southeast is the fastest-growing area for green construction . . . . That is mostly because it is so far behind. However, Birmingham could tap into that growth."  Although many of the "going green" recommendations were about creating energy-efficient environments, one panelist believed that better siting should dictate the activities of business owners.  Chris Miller, co-founder of Piedmont Green Building Solutions, LLC, wondered why business wanted to build beyond the reach of downtown:

Birmingham-area business owners should focus on improving the city’s inner core instead of building in outlying areas, Miller said. It’s puzzling as to why a number of businesses build new facilities outside Birmingham on undeveloped land when there are plenty of opportunities to establish facilities in developed areas inside the city, he said.  “I wonder why people build outside of downtown when you already have this infrastructure in place,” he said. “It’s all about mindset and a culture change.”

The smack-down doesn't end in Birmingham.  Beginning with a reception later this evening ... and continuing all day tomorrow ... the first-ever Tennessee Green Building Summit will focus on green building initiatives in a tight economy.  The following organizations have committed to participation:

• Office of Energy Efficiency & Renewable Energy U.S. Department of Energy (DOE)
• Tennessee Valley Authority (TVA)
• State of Tennessee—Tennessee Department of Economic and Community Development
• Nashville Electric Service (NES)
• Association of Tennessee Valley Governments (ATVG)
• Southeast Energy Efficient Alliance (SEEA)
• National Association of State Energy Offices (NASEO)
• National Energy Services Coalition (ESC)
• National Energy Services Companies (NAESCO)

While I am sure that both Tennessee and Alabama have something to offer to this "greenest leader in the South" competition, it is important to remember the distinction between goal and outcome.  With respect to green buildings, one of the litmus tests is the number of LEED certified buildings.  According to last week's green building study by the Chicago Tribune, the only southern jurisdiction that made the "Top Ten U.S. Cities" was Atlanta. (Go Bulldogs!)  If you are talking about alternative and renewable energy legislation, then perhaps you will find most of the leaders outside the SEC.

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