Originally posted 2015-07-13 09:00:13.

Recently, 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 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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