Thoughts on construction law from Christopher G. Hill, Virginia construction lawyer, LEED AP, mediator, and member of the Virginia Legal Elite in Construction Law

Energy Reporting and the Broken Window Problem

Broken Window Much discussion has centered around the de-certification aspect of the energy reporting requirements of the new LEED guidelines. However, as I have been reading and commenting on the proposed energy reporting requirements found in the latest LEED certification guidelines, and looking at the issue through the eyes of Eeyore (my favorite A. A. Milne character), I realize that my biggest issue with the reporting requirement is a broken window problem.

No, not the Broken Window Fallacy first set out by Mr. Bastiat years ago. The problem I am talking about is not the illustration of an economic theory, but a practical issue I see with the use of long term energy reporting.

Once this energy data is out there (and it will be because what’s the point of building a LEED Platinum building just to have it de-certified?), owners and governmental entities will use it and make it a part of their contracts or regulations. It is at this point that broken windows become a problem.

In short, what happens if a kid breaks a window or someone leaves a door open? Despite training and lectures, humans make mistakes. Who’s fault is it when such a problem (totally unrelated to design or construction) causes the building to fail to meet an energy reporting standard a year or more after construction?

I feel that these sorts of relatively straightforward issues must be dealt with if sustainability and “green” construction is to take hold. I also feel that attorneys, architects and other construction professionals should work together to deal with them before the trouble occurs.

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26 Responses to Energy Reporting and the Broken Window Problem

  1. Thanks Tim. Sometimes I do feel like I am standing in the way, but I firmly believe that these simple issues need to be addressed if necessary dialogue on sustainable building is to continue. Without a way to deal with these issues, either contractually or practically, I am afraid that risk will outweigh reward in too many cases.

  2. Way better to think about it now rather than later — if a building loses platinum because of a broken window, people will start paying attention for sure then, but the mark of wise counsel and risk management is to think about and account for those problems in advance.

    Also, thanks for the link!!
    .-= Timothy R. Hughes´s last blog post ..Crossing Your t’s and Dotting Your i’s: Perfecting Appeals of Public Contract Decisions in Virginia =-.

  3. That’s a very interesting point and metaphor. However, LEED APs are trained to understand every aspect of the LEED project. They carry in-depth knowledge of the subject and should plan accordingly. If they plan a building to run in a particular way and save a particular amount of energy, the building should work as planned. At that point, one has to wonder, should the building lose certification or the LEED AP lose accreditation, or both? I don’t think we can solely blame one or the other. They go hand-in-hand.

  4. […] the broken window and the benefits that they receive without looking at who the losers are. …Energy Reporting and the Broken Window Problem | Construction …No, not the Broken Window Fallacy first set out by Mr. Bastiat years ago. The problem I am talking […]

  5. There will always be situations that ‘blow the curve’ so to speak and you are right to bring them up as considerations. I would think a contractual clause which requires the building owner/occupant to document and be held accountable for non-construction and or design related incidents which impact the LEED ratings over a reasonable period should suffice, but whether it matters to the ratings board is another kettle of fish.

  6. The point you make is valid; having managed a campus of facilities for 10 yrs I can assure you that many decisions made by maintenance people are DISASTEROUS in terms of energy efficiency. I need LEED AP HVAC techs.

    Transparency is a critical component of any social responsibility initiative. Determining the financial ROI is simple: cost, return stream, cap rate. If the Owner is factoring in the other bottom lines then there is only value if you toot your horn. Institutional owners take a longer-term view with regards to holding the asset, and require a lower rate of return. But I also want prospective customers, and my neighbors, to know what we’re doing, and posting real results helps us retain our ethical right to exist.

    I must take exception With to the earlier comment re “LEED APs are trained to…” The LEED exam is a test about a system, not a test of competency. APs learn broad concepts (water conservation) and threshold performance criteria (reduce waste water to 50% less than IPC2009) but they don’t learn how to design, commission, or maintain a plumbing system to assure continued efficiency.

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