The Green Building Legal Apocalypse


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The LEED rating system was never meant to serve as a building code. Yet, cities and states are mandating LEED for private construction. This presentation describes how LEED private construction mandates will result in a green building legal apocalypse.

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The Green Building Legal Apocalypse

  1. 1. Green Building Legal Apocalypse Christopher W. Cheatham LEED AP, Esq. Kyle Wilson Douglas Reiser LEED AP, Esq. Kyle Wilson
  2. 2. One Teaching Point: Cities must stop mandating LEED for private construction
  3. 3. Agenda • What is LEED? • Two LEED Legal Issues • LEED Mandates • Legal Issues + LEED Mandates = Green Building Legal Apocalypse
  4. 4. What is LEED?
  5. 5. What is the US Green Building Council? I’m not a government body!
  6. 6. What is LEED (and green building)?
  7. 7. More acronyms? I’m not a government body either!
  8. 8. GBCI contracts to third parties “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 3rd Party LEED reviewers
  9. 9. Construction Completed
  10. 10. 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
  11. 11. Who is responsible for LEED certification?
  12. 12. If a city mandates LEED… …a non-governmental entity determines compliance with no independent appeal
  13. 13. LEED Legal Issues on the Horizon Challenges and Decertification
  14. 14. LEED Certification Challenges
  15. 15. 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.” LEED Certification Challenges
  16. 16. 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 . . . .” LEED Certification Challenges
  17. 17. Who will challenge? Angry mobs Business competitors
  18. 18. 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
  19. 19. The First LEED Challenge 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 challenges will be expensive…
  20. 20. LEED Decertification Decertification police seizing a LEED plaque
  21. 21. The problem: many LEED buildings are not performing as modeled
  22. 22. 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
  23. 23. Challenges + Decertification = LEEDigation
  24. 24. LEED Mandates
  25. 25. Various initiatives (mandates, incentives, and other legislation): 43 states 384 cities/towns 58 counties 14 federal agencies LEED Policy
  26. 26. D.C. Green Building Act January 1, 2012 Private construction > 50K SF LEED certified
  27. 27. What’s the enforcement mechanism?
  28. 28. D.C. Green Building Act “(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.”
  29. 29. D.C. Green Building Act
  30. 30. Baltimore City
  31. 31. Green Building Legal Apocalypse
  32. 32. Greening the Codes, USGBC
  33. 33. LEED mandate + Enforcement Mechanism = LEEDigation Projects will fail…
  34. 34. Shaw Development v. Southern Builders Shaw retained Southern Builders to construct $7 million condo project Shaw sought LEED Silver certification Projects have failed…
  35. 35. Shaw Development v. Southern Builders The Contract
  36. 36. Shaw Development v. Southern Builders The Contract
  37. 37. Shaw Development v. Southern Builders The Allegations: Breach of Contract
  38. 38. Shaw Development v. Southern Builders The Allegations: Negligence
  39. 39. Shaw Development v. Southern Builders The Damages
  40. 40. One Teaching Point: Cities must stop mandating LEED for private construction 1. Who is responsible? 2. LEED is not a building code 3. LEEDigation
  41. 41. Visit Our Blogs Green Building Law Update The Builders Counsel Blog Kyle Wilson
  42. 42. Contact Us Christopher W. Cheatham LEED AP, Esq. Douglas Reiser LEED AP, Esq. Kyle Wilson