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[Editor's Note: Attorneys Shari Shapiro and Chris Cheatham have been following developments in the first third-party challenge to a LEED certification award. GreenerBuildings.com ran observations by Shapiro earlier this month. Here is Cheatham's most recent post.]
I thought I would end my discussion of the Northland Pines High School LEED certification challenge with some constructive suggestions.
The LEED challenge issue is not going away anytime soon and clearly requires some fixes:
- Appeals of LEED certification must go to an independent body. It is not appropriate for the U.S. Green Building Council (USGBC) or the Green Building Certification Institute (GBCI) to review and decide LEED certification challenges when these two parties are responsible for deciding certification initially. There may also be constitutional authority issues if a party is forced to challenge a federal project's LEED certification to the USGBC/GBCI.
- The LEED Policy Manual absolutely must be incorporated into the LEED reference manuals. This is a no-brainer.
- Energy modeling is fuzzy math. LEED certification for new construction must be tied to actual energy usage as quickly as possible. I realize it takes years to change the LEED rating system, but the next version that comes out should include a re-certification requirement based on actual energy use.
- Standing and timeliness requirements must be created for the LEED challenge process. Otherwise, the USGBC/GBCI will be overwhelmed with challenges.
- Most importantly, if you are a contractor, architect or engineer, you absolutely must consider the implications and liabilities created by the LEED certification challenge process. If you guarantee some level of certification, you may be responsible if a subsequent LEED challenge proves successful. Will you be responsible to defend against the challenge?
Do you have any more thoughts on the LEED challenge process? How do we fix it?
Chris Cheatham, J.D., LEED AP, is a construction attorney in the Washington, D.C., Metro Area. He writes the blog Green Building Law Update, where this post originally appeared.
Image CC licensed by Flickr user swanksalot.
LEED Challenges
RE:the article and list of changes desired by Chris Cheatham I have several reactions and questions. First of all what precisely do you mean by LEED "challenges"? Are you referring to the Appeal process by which individual credits/points are re-evaluated? Or do you mean something else? Or are you creating a category of issues with a new name? Do you mean challenges to credits or certifications, or challenges that a certificaiton should NOT have been awarded?
Personally I feel the frustration and pain that seems to be circulating having guided many projects through the design, construction, submission, response, appeal, and certification processes. But they all relate to the fact the system is based on educated review of subjective criteria - not a black and white objective standard.
The basis of every green litigation issue that I have read about and anticipate occuring has to do solely with owners and team members entering into poorly constructed contracts that attempt to tie a guarantee of a LEED rating to financing or payment of fees or whatever. In reality there can NEVER BE A GUARANTEE of achieving a certification level due to the subjectivity of the review process. These are not empirical standards! Those entering into those contracts are using poor judgement or desperation to land work or to make up for not being able to evaluate professional services and in the end are creating a lively new pot of business for the law profession.
I agree that the brand new Owner's documents that preclude suing the USGBC must be made more clear to those considering the LEED process, however to tie actual energy use to some type of rating is what the Energy Star program is for and NOT what a LEED rating is all about.
I eagerly await the day when the marketplace has become more educated on what a LEED certification means, why you should pursue it, and the attorneys get the heck out of the way. Thank you..
LEED Challenges
You may find this entry of interest as well:
http://advance.beyond-the-building.com/2010/01/28/how-to-easily-lose-you...