Musings On the LEED De-Certification Firestorm

Originally posted 2009-07-13 09:00:00.

Green Building and LEEDMuch debate has occurred relating to the USGBC determination to use potential de-ceritification of buildings as an enforcement mechanism to assure energy reporting guidelines are met. As ENR reported last week, this new requirement has caused much wailing and gnashing of teeth.

My question is this: Why the fuss? When you get right down to it, LEED is just a private rating system originally designed to give a snapshot of “green”-ness of a building when built that is now seeking to provide a rating for energy performance over a longer time frame. The USGBC did a great job of getting out first and having the debate focus on LEED. Please, don’t take this wrong, I went through the LEED AP process, learned a lot and am firmly on the sustainable building side of the debate (if there even is one). However, LEED is just one of several green building rating systems that exist (Green Globes being the likely next most known system).

With a tip of the respectful cap to my friend Chris Cheatham (from whom I expect a seriously good comment) at the Green Building Law Update, what makes the debate regarding the liability and enforceablity both interesting and necessary is not LEED itself. What makes the debate necessary is the public’s use of LEED as the standard for building codes, tax incentives, zoning rules, and private contractually created energy performance benchmarks. Frankly, one could substitute any rating system into this debate and the debate would just change from, for instance, USGBC to GBI, and the arguments would be essentially the same. We would all be discussing how the GBI changed the rules and what contractors, owners, insurance companies, governments, etc. would be doing about it. As Matt Devries points out, the types of claims (be they tort, contractual, or otherwise) will not change in this new “Green” world, but the expectations and the contant of those claims very well may.

Presently, the content, and thus the focus, is on LEED. However, the USGBC did not create the firestorm, just the presently “hot” system for builders, owners, and governments. Good for the USGBC for having brought the debate forward, but the USGBC does not make the final rules; government regulations and contracts do. Without the incorporation of LEED into these types of rules, LEED would just be a label.

UPDATE: Please check out the great post by Matt Devries that sums up the latest on this nicely.

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23 Responses to Musings On the LEED De-Certification Firestorm
  1. Tim Hughes
    July 13, 2009 | 9:06 AM

    Chris — I think you hit it right on the head. The angst in this arena probably evaporates when governmental bodies step up and regulate/legislate in this arena as opposed to punting to a private organization.

    Tim Hughes

  2. Mark Rabkin
    July 13, 2009 | 9:42 AM

    What scares me is the fact that local & state governments and federal agencies are not effectively vetting the rating system and its various intricacies prior to incorporating its use within public policy. Rather than understand why they want to implement responsible green building practices and the potential environmental, social and economic benefits, it seems to me that the powers that be equate LEED with better performance. Given the debate that we have been having on these matters for the past few months, we know this to be particularly problematic, though we cannot predict the future. Also, tying certain incentives to specific levels of LEED certification is a potential gateway to litigation for direct economic damages incurred (see Shaw case details).

  3. Christopher G. Hill
    July 13, 2009 | 9:46 AM

    Mark and Tim,

    Great comments from you both. The issues you state are both great ones. My point is not so much that we need not talk about this issue, but more that the focus is a bit off. LEED itself is the tool, incorrect use of this tool is the problem.

  4. Leigh Monette
    July 13, 2009 | 11:18 AM

    I'm more concerned for the potential liabilities of A/Es and contractors/subs, especially given the changes in the 2007 A201.

    The question of whether decertification will have any serious impact on owners evaporates when you consider that owners are going to look to the design pros and contractors (in many instances) for compensation if/when their building is decertified.

    In that context, the standard really doesn't matter (LEED or otherwise). What matters is the scope of the warranties/representations offered by the construction and design players.

    At bottom this will be another variant of CD litigation, we attorneys will be able to differentiate ourselves by degree of knowledge of the pertinent standards. (Just my opinion/prognistication).

  5. Christopher G. Hill
    July 13, 2009 | 11:21 AM

    Thanks Leigh for the great insight. I too look at it from a contractor perspective. The Owners will seek to push risk down the money chain and that makes the contracts all the more important.

  6. Rich Cartlidge
    July 13, 2009 | 11:49 AM

    I believe as I have written about previously that the potential for decertification can be largely mitigated by education and the use of green leases. I think that the biggest hurdle to overcome with a "green" building versus a traditional building is in helping people to understand that the failure of the building to perform properly is more likely due to occupants rather than design. There needs to be a fundamental shift in how we discuss risk and liability when dealing with a green building and performance related issues.

  7. Leigh Monette
    July 13, 2009 | 12:51 PM

    Rich, your point is a good one. But there will still remain the contention from the owners that the building would perform had it been properly designed, and the rejoinder from the builders side that owners are not properly maintaining it to achieve the desired performance.

    CD litigation is full of these spats.

    And Chris, I completely agree with your comments on the importance of the underlying contracts (no surprise there).

  8. Chris Cheatham
    July 13, 2009 | 5:09 PM

    Chris, you built up my comment too much!

    I am with Leigh on this one. The issue that has everyone nervous is not the incorporation of LEED into rules and regulations. What has everyone nervous is the idea of de-certification itself.

    There are very few cities and jurisdictions out there that require LEED certification for private projects. This is not the big issue.

    The big issue will be who is responsible when a project is LEED de-certified. LEED de-certification adds an entirely new wrinkle into the liability/risk issue.

  9. Christopher G. Hill
    July 13, 2009 | 5:12 PM

    Chris C, I'd hate to do that! Actually, we all seem to agree. However, if LEED was never incorporated into the requirements of a project in the first place, then the issue is not there. My point is that LEED happens to be the big player in the certification area, so folks use it. Therefore, the liability is not created by LEED cert/decert itself, but its incorporation into the building requirements of a project.

  10. Lesley LEEDs
    July 14, 2009 | 10:18 AM

    You make some very educated points, sir. I found your viewpoint of the subject quite interesting, and I enjoyed reading your comments. I enjoy your writing, and I hope to read more from you. Thank you.

  11. Christopher G. Hill
    July 14, 2009 | 10:22 AM

    Lesley,

    Thanks for the kind words. The comments from all of you have been great and added much to this conversation.

  12. michaelenglish
    July 14, 2009 | 10:40 AM

    I am a huge fan of decertifying a building. On multiple occasions, my company is called in after the fact to “fix” a building that has already been LEED certified. The owners of these buildings pay good money to make their buildings green. The sad part is that some of these buildings don’t function due to poor design, coordination, construction and/or commissioning. Commissioning is about making these buildings work and validating their performance. If these certifications aren’t valid, where’s the integrity in our industry?

  13. Christopher G. Hill
    July 14, 2009 | 10:47 AM

    Thanks for your thoughts Michael.

  14. michaelenglish
    July 14, 2009 | 12:41 PM

    Also…I agree LEED is a tool but if the project team (including the owner) does not pull at the same end of the rope and work as a team then the sustainability efforts are moot. Training and education on why/how the facility is green can help get buy-in and support from occupants. If the facility does not operate in conjunction with the green program then is the facility really still green?

  15. Christopher G. Hill
    July 14, 2009 | 1:22 PM

    Michael,

    I agree that coordination will be key. This will need to be dealt with up front in contracts and somehow later down the road.

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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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