Originally posted 2010-12-13 09:00:10.

Much 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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