Energy Reporting and the Broken Window Problem

Originally posted 2009-10-05 09:00:00.

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.

Please join the conversation and comment below, your input will be taken to heart.  Also, please subscribe to keep up with the latest Construction Law Musings.

Image from FreeFoto.com.


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26 Responses to Energy Reporting and the Broken Window Problem
  1. [...] This post was mentioned on Twitter by James Bedell. James Bedell said: Energy Reporting and the Broken Window Problem: Much discussion has centered around the de-certification aspect.. http://bit.ly/5Ch6X [...]

  2. YahyaHenry (Yahya E. B. Henry)
    October 5, 2009 | 10:04 AM

    Twitter Comment


    build2sustain: Energy Reporting and the Broken Window Problem: Much discussion has centered around de-certification [link to post]

    Posted using Chat Catcher

  3. build2sustain (James Bedell)
    October 5, 2009 | 10:32 AM

    Twitter Comment


    Energy Reporting and the Broken Window Problem: Much discussion has centered around the de-certification aspect.. [link to post]

    Posted using Chat Catcher

  4. Timothy R. Hughes
    Twitter:
    October 5, 2009 | 1:25 PM

    Great post Chris – as always you make good points here!
    .-= Timothy R. Hughes´s last blog post ..Crossing Your t’s and Dotting Your i’s: Perfecting Appeals of Public Contract Decisions in Virginia =-.

  5. Christopher G. Hill
    Twitter:
    October 5, 2009 | 1:32 PM

    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.

  6. Timothy R. Hughes
    Twitter:
    October 5, 2009 | 1:34 PM

    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 =-.

  7. Christopher G. Hill
    Twitter:
    October 5, 2009 | 1:36 PM

    That’s my thinking at least. Thanks for the comment!
    .-= Christopher G. Hill´s last blog post ..Build2Sustain- Renovation Realities =-.

  8. imadnaffa (Imad Naffa)
    October 5, 2009 | 10:34 PM

    Twitter Comment


    Energy Reporting and the Broken Window Problem (by @ConstructionLaw): [link to post]

    Posted using Chat Catcher

  9. Lesley LEED AP
    October 19, 2009 | 11:46 AM

    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.

  10. Christopher G. Hill
    Twitter:
    October 19, 2009 | 11:49 AM

    This is true. Really all that can be done is to train the facilities managers and occupants on the proper use of the building. However, the issues will still remain from a contractual standpoint once the genie is out of the bottle.
    .-= Christopher G. Hill´s last blog post ..How a Legal “Blawg” Helps! (Thanks Blog for Profit) =-.

  11. Timothy R. Hughes
    Twitter:
    October 19, 2009 | 11:49 AM

    If losing AP status is the threat to energy modeling not matching actual performance, I think USGBC’s numbers will be plummeting in a major way very soon!
    .-= Timothy R. Hughes´s last blog post ..DC Contractors and Construction Managers License =-.

  12. Timothy R. Hughes
    Twitter:
    October 19, 2009 | 11:50 AM

    PS – free advertising for Lesley here :P

    We had ten people take the LEED AP test at Bean Kinney. We all used Everblue for training. Every one of us passed, so if you need a great source of help on that front, that are top notch!
    .-= Timothy R. Hughes´s last blog post ..DC Contractors and Construction Managers License =-.

  13. Christopher G. Hill
    Twitter:
    October 19, 2009 | 11:54 AM

    @Tim, True, but I’m don’t know that LEED AP status is at risk, just the LEED certification of the building.
    .-= Christopher G. Hill´s last blog post ..Construction Economy and Bids- A Liability Nightmare? =-.

  14. Timothy R. Hughes
    Twitter:
    October 19, 2009 | 12:00 PM

    I was riffing off Lesley’s point. I think there is an argument (actually a strong argument) that even the certification is not at risk unless they fail to submit the energy reporting as required under the minimum project requirements.

    I think we are all extrapolating where this heads next in the future ….
    .-= Timothy R. Hughes´s last blog post ..DC Contractors and Construction Managers License =-.

  15. Christopher G. Hill
    Twitter:
    October 19, 2009 | 12:02 PM

    It isn’t the de-certification so much as the inevitable use of the reported information and how that would work from a contractual standpoint.

  16. [...] course the risks must be taken into account. Contracts must be drafted in such a way that those performing the work [...]

  17. [...] owners and architects will inform a contractor’s working knowledge of the benefits and potential liabilities inherent in “green” building and keep it ahead of the curve.  Such knowledge will also [...]

  18. [...] The Addendum lets the other contract documents control many of the time horizon issues and energy reporting issues that can plague a contractor if they are not properly addressed.  The simple allocation of most, [...]

  19. broken window - StartTags.com
    February 2, 2010 | 2:36 PM

    [...] 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 [...]

  20. [...] my occasional Eeyore like tendencies, I fully ascribe to this more positive thinking for my clients and friends in the construction [...]

  21. [...] time horizons and contractual or government requirements on energy goalsEven the possibility of a broken window.ZoningWhile I sometimes feel like we are rushing past these issues without the careful thought that [...]

  22. [...] when I was first writing my Eeyore like thoughts most of the thoughts of all us construction attorneys were speculative.  Whether because wholesale [...]

  23. [...] few years will come to a screeching, and unfortunate halt. Despite my Eeyore like tendencies and related posts on the subject, this is the worst possible outcome. Sustainable building is a great idea, liability concerns [...]

  24. Jim Rumler
    July 18, 2011 | 5:07 AM

    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.

  25. David Stone, AIA
    August 23, 2011 | 12:38 AM

    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.

  26. Christopher G. Hill
    Twitter:
    August 23, 2011 | 9:28 AM

    Thanks for checking in David. I appreciate your insight into the building process.
    Christopher G. Hill recently posted..Dragas Management: The Saga ContinuesMy 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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