TELECOMMUTING and WAXMAN-MARKEY

In simpler times, people usually worked where they lived because there was little choice.  Whether farm or factory, without mass mechanized transit, the place where one slept and kept a family had to be near where one earned a livelihood, except of course for those who sacrificed a family life in order to find work far from home.

But now we have a culture built on a massive automobile transportation infrastructure that has grown to enable urban workers two places to live separated by great distances: the home place and the work place, both heated and cooled year-round and both unoccupied for large stretches during each 24 hour period.  There is a lot of waste in that.

Living near work and use of mass transportation, carpooling and/or fuel efficient cars cuts down on that waste, but only as to the energy expended in commuting.  The waste of having two different places is built into the system.

This leads to the whole notion of telecommuting, which in itself is a peculiarly self-contradictory term. "Tele" comes from the Greek meaning distant.  Long distance commute?  That's what we are trying to avoid.  Rather "telework" is more accurate:  The federal government uses that term.  See www.telework.gov.  But I digress

Much of my work as a transactional attorney involves people and places far from where I plant my backside in front of a computer monitor.  With e-mail, digital imaging, overnight courier service, and the telephone, complex commercial transactions are routinely negotiated and completed without any face-to-face contact with other participants.  In another era, that would almost be unthinkable.  In the old days (pre-PC) the culmination of a transaction meant several hours, sometimes several days, in a conference room with piles of paper and a chaotic buzz of side conversations and clerical support.

The computer makes it possible for me to handle more pages (notice I did not say paper) with speed and efficiency without the need of a conference room, filing cabinets and assistance.  My day-to-day interaction is less with the people in my office and more with people on the other side of continent with whom I am digitally connected.

So diminishes my need to come to an office every day.  I can replicate at home a huge amount of the work environment that I have in the office.  With the mobility spawned by the computer infrastructure, there is an opportunity for savings in office space.  Whereas one lawyer per secretary was common, now three to five lawyers per secretary is the rule.  Office planners can do more with less floor space.

But there is a price.  We risk the loss of personal connection and collaborative camaraderie that can have a synergizing effect in boosting creativity, competition and motivation.  We have evolved patterns of social behavior that feel rewarded and fulfilled with personal contact.  Though I deal less with people in my office than I did before, I still deal some.  And that is pleasant and rewarding.  So while in theory, a move toward more telecommuting seems compelling, there are strong social factors that resist the move.

But here comes the green factor.  Businesses that are conscious of reducing their carbon footprint will become more imaginative and aggressive in achieving their goals.  And if legislation moving through Congress is enacted in its current form, there will be more compelling motivations.

The Waxman-Markey Bill (American Clean Energy and Security Act of 2009), passed by the House of Representatives on June 26, 2009, would, among other of its far-reaching measures, set aggressive energy consumption reduction targets for commercial and residential buildings as measured against certain industry recognized baseline standards.  The Act would further require state and local governments to adopt building codes to meet or exceed those targets.

Some make dire predictions of the effect that such requirements will have on the economy.  Others make dire predictions of the effect on our planet if we continue as business as usual.  President Obama maintains that "the nation that leads in the creation of a clean energy economy will be the nation that leads the 21st century global economy."

Even if the more aggressive proposals are softened in response to concerns by critics, the greater governmental controls on energy consumption will have an effect on the private sector.  These considerable forces may be enough to overcome the social inertia that resists telecommuting.

Buildings that cannot meet energy efficiency mandates may become obsolete and unused.  Indeed, a study released last year by the National Associate of Industrial and Office Park Developers concluded that there are very real technical limitations on cost effective increases to energy efficiency in many typical office buildings.  An employer faced with mandatory energy consumption limits may be forced to consolidate operations into fewer, more efficient, buildings.  If the green commercial buildings stock is insufficient to meet the need, more employees will work from home, coming to the workplace fewer days.  The private office or cubicle will become more like a hotel room which employees share on a rotating basis.

So that's my prediction: we will see an increase in telecommuting not so much because of the price of gasoline and workers weary of time wasted in the car, but because of a limited supply of green office buildings that meet energy efficiency requirements, whether self or government imposed.

John P. (Jack) Machen is a real estate attorney in the Baltimore office of DLA Piper LLP (US), a global law firm with over 3,500 lawyers in 28 countries.  In addition to his law practice, Mr. Machen is certified by the U.S. Green Building Council as a LEED Accredited Professional and provides advice to his firm and to clients on green building, green building codes, sustainability and resource conservation.