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Suagee: We should join green building movement

Each home's contribution to global warming is slight, but in the aggregate, energy consumption in residential buildings accounts for about 20 percent of greenhouse gas emissions in the United States. If you add the energy consumption associated with commercial and industrial buildings, buildings account for nearly half of GHG emissions in the U.S. The good news is that we know how to build homes and other buildings so that they use very little energy, including the use of passive solar design techniques such as heating, ventilation, daylighting and shading.

Although we know how to do this, it is apparently going to take us some time to make it the standard practice. One organization, Architecture 2030, calls for all new buildings to be carbon-neutral by 2030. This means that not only would all new buildings not consume fossil fuels for heating and cooling, they would get their electricity from renewable sources.

Bringing about the transition to zero-net energy buildings - making this the standard practice for new construction - will require regulatory measures, financial assistance programs, and government support for voluntary efforts. The basic regulatory tool is a building code. Since about 1992, the federal government has had a program to help states and local governments incorporate energy efficiency requirements into their building codes.

The Energy Policy Act of 2005 added statutory authorization for ''incentive funding'' to states that achieve and document a 90 percent rate of compliance with building codes that meet or exceed the 2004 edition of the accepted standards for residential and commercial buildings. The act authorizes appropriation of $25 million per year for this program, including $500,000 for training state and local government officials.

This pattern of federal assistance has overlooked the fact that, for buildings on lands within their jurisdiction, it is tribal governments that have the authority to enact and implement building codes. Tribal governments have simply been left out of this federal assistance program.

It is true that the ''Indian Energy'' title of the 2005 act does include authorization for the Department of Housing and Urban Development to ''promote energy conservation'' in federally assisted Indian housing. The 2005 act also amends the Native American Housing and Self-Determination Act to make ''improvement to achieve greater energy efficiency'' an allowable expenditure for tribally designated housing entities. But this is hardly comparable to the federal assistance programs for writing energy efficiency into building codes.

Maybe this is just an aspect of sovereignty with respect to which Congress has not yet thought about how tribal governments fit. The Energy Independence and Security Act of 2007 provides some recent support for the proposition that, when it comes to energy efficiency in buildings, the notion that tribal governments might have a role just doesn't occur to anyone in a position to write tribes into the law. For example, Title IV of EISA, captioned ''Energy Savings in Buildings and Industry,'' which comprises some 59 pages of statutory text, includes no references at all to Indian tribal governments. In addition to a number of programs promoting energy efficiency in buildings, Section 494 of EISA mandates the creation of a ''Green Building Advisory Committee,'' which would include representation of state and local government green building programs, but no tribal representation.

EISA did not specifically deal with the federal assistance program to help states and local governments ratchet up the energy efficiency standards in their building codes. That subject would be addressed, however, by climate change legislation currently under consideration in the Senate.

The climate change bill that is receiving the most consideration, Senate Bill 2191 (Lieberman-Warner, after Connecticut Sen. Joe Lieberman and Virginia Sen. John Warner), would seek to reduce GHG emissions with a ''cap and trade'' system, an elaborate market-based system for buying and selling GHG allowances. While most discussion of S. 2191 has focused on the cap and trade system, there is a separate title of the bill that focuses on energy efficiency. Section 5201 (of the bill, as reported out of committee on Dec. 5, 2007) would enhance the financial and technical assistance programs for state and local governments to ratchet up the energy efficiency requirements in their building codes. The bill would also direct the secretary of the Department of Energy to support the periodic updating of the national model building codes with a target of reducing energy consumption in new buildings by 2020 to half of standards in the current model codes (a target that Architecture 2030 calls for achieving by 2010).

In 11 pages of bill language on building energy efficiency, Section 5201 does not mention tribal governments at all.

Before speaking at the recent annual conference of the National Tribal Environmental Council, I re-read the March/April issue of Solar Today, the magazine of the American Solar Energy Association. In an article about the efforts of Fort Collins, Colo., to reduce its carbon footprint, Dan Bihn, a member of the citizen advisory panel, writes, ''Climate change is a whole-community problem, and we'll need to get the whole community involved. A proven way to do that is to give each stakeholder group meaningful, near-term benefits that they can get excited about.'' Some of the easiest and cheapest ways to get benefits to people and reduce carbon dioxide emissions in the process is to make homes more energy efficient.

A cap and trade system may well work over the long run to ratchet down emissions from major sources. The market for allowances may be designed so that there will be funding for various stakeholder groups to carry out programs to reduce emissions and to adapt to climate change. Whether tribal governments and the people who live in Indian country and Native Alaska will receive a fair share is an open question. In any event, those benefits would be realized some time in the future, several years or decades from now.

For benefits in the near-term, I suggest we focus on energy efficiency in homes and commercial buildings, especially in new construction. We need to correct the omission of tribal governments from the federal assistance programs to adopt and implement building codes with energy efficiency standards that meet or exceed the national models. The rest of America is beginning to move toward the widespread adoption of zero net energy homes, and this is a movement in which Indian country and Native Alaska really ought to be included.

Dean Suagee is Of Counsel to Hobbs, Straus, Dean & Walker LLP, Washington, D.C., and is a citizen of the Cherokee Nation. He may be reached at dsuagee@hsdwdc.com.