I had lunch today with an engineer friend of mine, and we were discussing the recent attention to the possibility of de-certification of LEED buildings based on energy and water efficiency performance measures.  As has been discussed here and on several of my favorite blogs (Matt DeVries does a nice compilation here),  the USGBC 's announcement that it was incorporating energy and water usage reporting requirements as a precondition for acheiving LEED v3 has elicited a rash of speculation about the legal and logistical implications of de-certification.  As we were talking, a potential new model emerged--the green building lemon law.

One of the main problems I see with ongoing monitoring of building performance, and many of the legal implications which accompany it, is the distinction between construction and operations/maintenance.  As designed, a building may be very green.  It may have all the appropriate siting, technology and other features the architect and engineers could wish to include.  However, if the building is poorly operated or maintained, the energy or water performance may not measure up.  This is akin to a car's mileage.  You buy a Toyota which has been estimated at 35 mpg.  But if you don't inflate your tires, and you have a lead foot, it probably won't get the 35 mpg.  But it is not a defect of the car, rather the choices of the operator.  By having ongoing building performance as a component of LEED NC certification, construction and operations and maintenance are inexorably intertwined.  

I propose, instead, a green building lemon law.  For LEED NC certification, there can be a requirement of performance within some specified percentage of the energy and water efficiency modelling which would be reflective of the performance of the structure itself, not of it operation.  Is this a green building.    If the building fails, it is a "lemon" and deserves decertification under LEED NC.  Then, using LEED EBOM or other metric, there can be a measure of the green operations and maintenance of the building. 

In order to effectively measure the performance of a building, USGBC needs to decouple the operations issue from the construction one. By doing so, the USGBC would be able to monitor performance, and the liability for performance failure would be easier to attribute to the responsible party. In addition, by creating a "lemon" standard, designers and engineers would be more protected from frivolous suits--evidence of a buildings' "failure" to perform would be subject to what amounts to a higher standard of proof. 

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Comments (4) Read through and enter the discussion with the form at the end
Frank Sherman - July 16, 2009 1:26 PM

What is missing from the conversation, including Matt's compilation, is that a LEED Certification is time limited to 5 years. Buildings are required to re-certify every 5 years through LEED-EBOM which is operations focused. If a building fails to perform under LEED-EBOM at the level of original certification, it cannot maintain that level of certification. If a project is found to significantly under perform within the first 5 years, there may be a case for mis-representation that could warrant decertification.

I like your idea of defining a range of acceptable performance variation that constitutes "certified" building performance. The 5-year cycle for bulding re-certification built into the LEED Rating System provides a reasonable approach for assessing ongoing building performance and adjusting if necessary the level of building certification.

Philip Simpson - July 16, 2009 2:31 PM

The question of de-certification has a number of issues embedded within it, any one of which is worthy of discussion on its own. These include:
1) To what extent should concerns about liability, which are frequently mentioned and are really concerns about risk allocation, drive the policy decisions about what to do if a building fails to perform up to its design standards? From a "pure" policy perspective the allocation of risks may not be a concern if all of the potentially responsible actors are in the same ballpark as far as their ability and incentive to affect outcomes is concerned. But is that the case? And will parties with more resources and/or exposure react by taking steps to affect the outcomes (assuring that the building performs up to spec), or by shifting the risks?
2) Who cares whether a building performs as spec'd? Tenants? Owners? (What do the leases say?) Neighbors? Government? USGBC (which has a strong stake in maintaining its legitimacy)? Builders? Architects?
3) Are concerns about construction, such as site selection, raw materials, construction waste management, dust, erosion, bike parking (for which I have a soft spot), recycling area, etc. sufficient for whoever cares (see 2, above) to outweigh any concerns about performance, such as energy usage, water usage, or IEQ?
These issues interrelate, of course. If a member of the public were to ask "What good is a 'LEED Silver' building if it puts out the same amount of carbon per square foot in year 5 as a "regular" building?" a comprehensive response would touch on all of the above issues. But I think it will advance the discussion to get these issues identified.
To go on for just a bit more, your Toyota was designed to get a certain mileage, and in my state, it gets tested annually to see that its emissions are within specs. As a practical matter, that is all the EPA and state government can do. Toyota itself doesn't even require periodic emission testing. But if you own a fleet of Toyotas, or a fleet of jet aircraft, you will do what you can to get optimal mileage from your fleet. There is no question that performance matters. The question is, how much, and to whom.

Mitchell Swann - July 16, 2009 5:53 PM

I agree with the idea that at some point there will be some expectation (reasonable or not) of being able to compare what was sold to what was received in terms of building performance. Without that comparative step "green" becomes more of a marketing strategy than a real performance objective. The use of what in the cleanroom world would be called "at rest" and "as used" performance metrics would indeed offer somewhat of a buffer against frivolous lawsuits. You would have to define what would be a 'standard' weather year (the one used to create the model) and some level of acceptable deviation in the weather. The challenge I see in the 'at rest' and 'in use' comparison after occupancy is that it is very difficult for an operating facility to be truly 'at rest' long enough to get useful data on it's performance.

One item in the mix on all of this is the (soon to be) expected roll out of an EU-type building energy labeling protocol which has as one outcome the ability for a potential buyer or tenant to compare Building A to Building B for energy consumption. The EU's protocol currently includes 'all in' energy - those internal load items that are often excluded in mandatory US Energy Code analyses. I recognize the variability of internal loads but energy consumption models without them is like telling me the calories in my cheeseburger without including the bun.

Texas Lemon Law - November 8, 2011 6:45 AM

Great Information... Thanks for Post..

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