The Green Building Legal Apocalypse

Green Building Legal Apocalypse
Douglas Reiser
LEED AP, Esq.
Christopher W. Cheatham LEED AP, Esq.
Kyle Wilson

One Teaching Point:Cities must stop mandating LEED for private construction

Agenda
What is LEED?
Two LEED Legal Issues
LEED Mandates
Legal Issues + LEED Mandates =
Green Building Legal Apocalypse

What is LEED?

What is the US Green Building Council?
I’m not a government body!

What is LEED (and green building)?

More acronyms?
I’m not a government body either!

GBCI contracts to third parties
3rd Party
LEED reviewers
“GBCI is taking over those reviews directly, both through hiring to increase its own capacity, and through contracting with LEED reviewers. . . .”
-Environmental Building News,
July 6, 2010

Construction
Completed

Can GBCI decisions be appealed?
Appeal fees are $500 per credit.
All appeals of final review decisions must be filed within 25 business days of GBCI's posting of the final review decision
All appeals shall be conducted in accordance with the GBCI Appeal Review Policy

Who is responsible for LEED certification?

If a city mandates LEED……a non-governmental entity determines compliance with no independent appeal

LEED Legal Issues on the Horizon
Challenges and Decertification

LEED Certification Challenges

9.2 Certification Challenge Overview:“GBCI may initiate a certification challenge thereby revisiting its determination that the submitted documentation properly demonstrates that the project satisfied all credits, prerequisites, and MPRs necessary to achieve the awarded level of LEED certification.” “Based on the final determination of such a challenge, GBCI retains the right to reduce the level of LEED certification awarded or revoke an award of LEED certification altogether.”

9.2 Certification Challenge Overview:“A project owner may defend against such certification challenge by electing to participate in the process described below.”9.3 Basis for an Initiation of a Certification Challenge “GBCI encourages third parties who wish to make a complaint, or bring to light information affecting the grant of LEED certification . . . .”

Who will challenge?
Angry mobs
Business
competitors

The First LEED Challenge
Northland Pines High School
LEED Gold in 2007
Challenge filed in 2008
Alleged non-compliance with ASHRAE 90.1 and 62.1

The First LEED Challenge
LEED challenges
will be expensive…
In the process of its review, USGBC engaged two extraordinarily qualified engineering consultants (Taylor Engineering and Horizon Engineering) to review the technical merits of the prerequisites and credits in question.
Further, USGBC staff performed a site visit of the school.
-Susan Dorn, USGBC General Counsel

LEED Decertification
Decertification police seizing a LEED plaque

The problem: many LEED buildings are not performing as modeled

The Solution: LEED Decertification
[USGBC CEO Rick] Fedrizzi predicts that data will be used to enforce performance in the future.
"Once a LEED plaque is assigned to a building, and there is proof that the building is no longer performing the way that it should, there's a very good chance that that information will then result in the ability for USGBC to remove the certification from the building — most likely on our website," he says.
-NPR, Sept. 8, 2010

Challenges+ Decertification= LEEDigation

LEED Mandates

LEED Policy
Various initiatives (mandates, incentives, and other legislation): 43 states384 cities/towns58 counties 14 federal agencies

D.C. Green Building Act
January 1, 2012
Private construction > 50K SF
LEED certified

What’s the enforcement mechanism?

“(b) On or before January 1, 2012, all applicants for construction governed by section 4 shall provide a performance bond”
“(g) All or part of the performance bond shall be forfeited to the District and deposited in the Green Building Fund if the building fails to meet the verification requirements described in sections 3 and 4.”

Baltimore City

Green Building
Legal Apocalypse

Greening the Codes, USGBC

Projects will fail…
LEED mandate+ Enforcement Mechanism= LEEDigation

Projects have failed…
Shaw Development v. Southern Builders
Shaw retained Southern Builders to construct $7 million condo project
Shaw sought LEED Silver certification

The Contract

The Allegations: Breach of Contract

The Allegations: Negligence

The Damages

One Teaching Point:Cities must stop mandating LEED for private construction
Who is responsible?
LEED is not a building code
LEEDigation

Visit Our Blogs
Green Building Law Update
http://www.greenbuildinglawupdate.com
The Builders Counsel Blog
http://blog.reiserlegal.com/
Kyle Wilson

Contact Us
Christopher W. Cheatham
LEED AP, Esq.
chris@cheathamconsulting.com
Douglas Reiser
LEED AP, Esq.
doug@reiserlegal.com
Kyle Wilson

The Green Building Legal Apocalypse

by Chris Cheatham on Oct 26, 2010

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The Green Building Legal Apocalypse — Presentation Transcript