Does Stricter Decertification Mean More “Leedigation?”

Green BuildingRecently, my friend and fellow construction attorney/consultant, Chris Cheatham (@chrischeatham) posted the news that USGBC will be more stringent on the de-certification front. This statement relates to the continued energy performance of LEED certified buildings and increases the likelihood that energy performance (as opposed to mere reporting) could lead to de-certification.

I have discussed on several occasions the potential legal risks relating to green building. One of the big potential sources for such litigation (or “leedigation” as coined by Mr. Cheatham) is the possible de-certification of a previously certified building. With this latest statement by USGBC the specter of such de-certification seems even stronger.

Couple this potential with the fact that anyone can challenge the certification of a building at any time and contractors, subcontractors and other construction professionals face potential liability for the performance of a building in ways well beyond their control.

While this risk is a real one in my opinion, careful planning and the consultation with a construction lawyer familiar with the LEED certification system can help construction professionals minimize this risk.

On another note, Scott Wolfe and I will be discussing these risks and solutions in more detail next week at the Green Legal Matters conference in New Orleans.

Update: Tim Hughes (@timrhughes) has pointed out that the GBCI has changed the challenge policy, thanks for the update Tim!

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10 Responses to Does Stricter Decertification Mean More “Leedigation?”
  1. John Scanlan
    October 4, 2010 | 9:30 PM

    Apparently designers and builders need our help up front, during the design process.
    John Scanlan recently posted..Green Building Award 1My Profile

  2. Christopher G. Hill
    Twitter:
    October 5, 2010 | 10:29 AM

    Designers and builders do need consultation up front in all cases, especially in the case of LEED certified projects.
    Christopher G. Hill recently posted..Urban Retrofits- Tall Buildings- and SustainabilityMy Profile

  3. Timothy R. Hughes
    Twitter:
    October 6, 2010 | 9:12 PM

    The answer to the question I believe is yes!

    PS – I have a post tomorrow on the challenge process, looks like they tweaked it and I have seen nary a whisper, found it completely randomly today writing for Washington Business Journal and needing a link!
    Timothy R. Hughes recently posted..Not So Fast! Restrictive Covenants and Romito v The Bexley AssociationMy Profile

  4. Christopher G. Hill
    Twitter:
    October 7, 2010 | 7:18 AM

    Can’t wait to see it. Thanks Tim!

  5. Timothy R. Hughes
    Twitter:
    October 7, 2010 | 10:51 AM

    Thanks for linking Chris, always appreciated!
    Timothy R. Hughes recently posted..Big News- LEED Challenge Process Just ChangedMy Profile

  6. Christopher G. Hill
    Twitter:
    October 7, 2010 | 10:55 AM

    Happy to do it Tim
    Christopher G. Hill recently posted..Urban Retrofits- Tall Buildings- and SustainabilityMy Profile

  7. Douglas Reiser
    Twitter:
    October 7, 2010 | 6:44 PM

    Big time find by Tim Hughes. I am left perplexed why they didn’t release a public statement about the change. Odd.

    Maybe we will find out more next week at GLM.

  8. Christopher G. Hill
    Twitter:
    October 7, 2010 | 7:16 PM

    I sure hope so

  9. Timothy R. Hughes
    Twitter:
    October 11, 2010 | 10:41 AM

    I went out for coffee the morning after my post with someone and mentioned it – I asked him if he knew before, and he did … but direct from an upper level GBCI guy’s mouth.

    Odd they did not announce it. Kudos for fixing it so fast though!
    Timothy R. Hughes recently posted..Letters of Intent ExplainedMy Profile

  10. Christopher G. Hill
    Twitter:
    October 11, 2010 | 11:30 AM

    Thanks Tim. It is good to see the updates, but would be better if the announcement on any monumental changes like this one would be more public.
    Christopher G. Hill recently posted..Sometimes Construction Can Turn CriminalMy Profile

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About Musings

I am a construction lawyer in Richmond, Virginia, a LEED AP, and have been nominated by my peers to Virginia's Legal Elite in Construction Law on multiple occasions. I provide advice and assistance with mechanic's liens, contract review and consulting, occupational safety issues (VOSH and OSHA), and risk management for construction professionals.

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