The Federal government has long been a leader in constructing green buildings, and LEED has been the Federal standard of choice. The Department of Energy issued a final rule updating its recommended certification standards and levels for all Federal buildings on October 14, 2014.
The Final Rule does not tell Agencies which rating system to use. Rather, if the Agency chooses to use a rating system, such system must meet the following characteristics:
- Allow assessors and auditors to independently verify the criteria and measurement metrics of the system;
- Be developed by a certification organization that (i) provides an opportunity for public comment on the system, (ii) provides an opportunity for development and revision of the system through a consensus-based process;
- Be nationally recognized within the building industry;
- Be subject to periodic evaluation and assessment of the environmental and energy benefits that result under the rating system; and
- Include a verification system for post occupancy assessment of the rated buildings to demonstrate continued energy and water savings at least every four years after initial occupancy.
Sounds a lot like LEED to me, so unless something else comes into the marketplace, Federal buildings are likely to use the LEED standard.
The DOE's rule is based, at least in part, on a General Services Administration (GSA) report on green building rating systems issued on October 25, 2013, and available here. The GSA recommended LEED-2009 Silver or 2 Green Globes v 2010. It also contained a variety of other recommendations, including keeping current with the rating systems as they evolve.
The GSA's recommendation is an interesting one for two reasons:
(1) the GSA requires its buildings to be LEED Gold, and
(2) the recommendation was not supplemented to recommend LEED v4, even though the GSA did evaluate LEED v4.
Since the Final Rule does not have a recommended rating system, and most agencies are unlikely to parse whether a particular rating system other than LEED complies with these characteristics, the GSA's recommendations are likely to become the Federal default.
In April 2010, the Department of Defense (“DOD”) issued a memorandum (“memo”) that altered the structure of the defense budgeting cycle, beginning with fiscal year (“FY”) 2012 budget. These changes were ostensibly made to offer more stability to the budgeting process, which prior to the memo involved a more complicated two-year budgeting process where major funding changes were supposed to be made in even-numbered years and smaller adjustments were supposed to occur in odd-numbered years. However, as then Deputy Secretary of Defense Willy Lynn stated, “everyone involved just ignored that second year.”
The new rules replaced the two-year cycle with single-year budgets, which were intended to more accurately reflect current defense needs and budgeting realities caused by the economic slowdown. A second requirement of the memo, however, could have the unintended consequence of hindering DoD green building projects.
The memo requires that the Pentagon’s annual Program/Budget Reviews, or Future Years Defense Program (“FYDP”), to focus on a five-year period each cycle. Readers may recall my earlier post on the recently enacted National Defense Authorization Act (“NDAA”), which among other things, prohibits the DoD from using appropriated funds to achieve LEED platinum or gold certification unless the Secretary of Defense can certify that the LEED project in question will result in no additional costs to the DoD, or if a cost-benefit analysis reveals that the project will produce a financial payback.
A potential concern to proponents of DoD green construction projects could be the imposition of a five-year “horizon” to determine the financial benefits of energy improvements or sustainable design features. While the NDAA does not specify a time window to be used in conducting cost-benefit analyses, defense officials may be discouraged (under Congressional opposition to seeking LEED gold or platinum certification) from proposing green projects that will have a payback period beyond the five-year FYDP cycle.
Many people, including me, have noted that the National Defense Authorization Act (“NDAA”), signed into law by President Obama on December 31, 2011, prohibits the Department of Defense (“DoD”) from using any appropriated funds to achieve the two highest levels of green building certification offered by the U.S. Green Building Council’s Leadership in Energy and Environmental Design (“LEED”) Program – platinum and gold. The NDAA, however, does provide that the Secretary of Defense can certify a building under LEED gold or platinum standards if certification imposes no additional cost to the DoD, or if the DoD conducts a cost-benefit analysis of the project and there is a demonstrated payback for implementing energy improvements or sustainable design features.
More interesting, upon further reflection, is that the bill requires that by June 30, 2012 the Defense Secretary must provide Congress with a report on the energy efficiency standards the DoD uses for military construction and repair. The report must include:
- A cost-benefit analysis as well an examination of the return on investment and long-term payback of LEED, ASHRAE 189.1 and ASHRAE 90.1-2010; and,
- A new DoD policy on energy efficient construction based on the cost-benefit and ROI analysis.
The methodology for assessing the "cost-benefit" and return on investment of the standards is not specified. Given that life-cycle costing makes the ROI of energy efficiency and other green features much more attractive, the standard that is used will be significant.
The proposed DoD "policy" could also be used by Congress as a model to impose on the other Federal agencies, which mostly use LEED-Silver as their building standard.
Look out for a debate in the middle of the year over whether LEED and ASHRAE 90.1-2010 should be scrapped from DoD (and potentially other agency) requirements because they fail the "cost-benefit" analysis.
Contrary to common belief that nothing is really happening in green building at the Congressional level these days, I provide the following two counterexamples. Of course, neither of these efforts are designed to promote energy efficiency or green building, but that doesn't mean that nothing is happening.
An amendment to the Senate Appropriations Bill for Energy and Water introduced by Senators Wicker (R-MS), Boozman (R-AR), and Inhofe (R-OK) would essentially eliminate the use of LEED and Energy Star for DOE green building programs. According to the NRDC:
This rider would prevent the Department of Energy (DOE) from using strong green building energy rating standards. The amendment limits DOE to using only green building standards that are developed and approved in accordance with American National Standards Institute (ANSI) rules. Such a requirement would effectively limit DOE to using only the National Association of Home Builders (NAHB) and Green Globes building standards.The amendment would disallow the use of many other strong rating systems, including LEED, EPA Energy Star Portfolio Manager, and EPA Energy Star Homes, which have substantially increased the number of environmentally-friendly buildings in our country.
In other news, Rep. Charles J. Fleischmann [R-TN-3] introduced a bill yesterday in the House H.R.3441 to repeal the Department of Energy's home weatherization assistance program. The DOE weatherization assistance program provides funding to states to weatherize the homes of low income households to make them more energy efficient. According to the WAP website:
During the past 33 years, WAP has provided weatherization services to more than 6.4 million low-income households. Families receiving weatherization services see their annual energy bills reduced by an average of about $437, depending on fuel prices.
According to a recent release from the National Association for State Community Services Programs, the WAP received $5b in funding from ARRA, which weatherized 534,208 low-income houses through August 2011. This made the WAP seventh out of approximately 200 federal programs funded by American Recovery and Reinvestment Act (Recovery Act) in jobs created or retained, with 14,090 jobs for the third quarter beginning July 1 and ending September 30, 2011.
The bill is not yet available from the GPO, but it can be followed on Thomas through this link.
For several years, property owners have become increasingly aware of the potential for energy efficient buildings to decrease operating costs, improve occupancy, and demand higher rental prices.
Theoretically, all of the benefits of energy efficient buildings should yield a higher property values for green buildings and lower values for non-energy efficient buildings. However, real estate appraisers often fail to properly value the energy efficiency features, meaning that the building will be appraised for the same value as another building without the investment in energy efficient systems, features, etc.
If energy efficient properties are appraised below their actual value, it can lead to a reduced resale value, lower rents, and poorer financing options than the owner would realize if the appraisal took into account the value of the property’s green attributes.
On August 8, 2011, the Department of Energy issued a "Request for Information" seeking input from stakeholders on a "Commercial Building Asset Rating Program"--let's call it "Highrise Star." The goal of Highrise Star is to create an Energy Star-like system for commercial buildings. The program would establish common inputs for calculating energy efficiency, select a modeling tool to evaluate the inputs for individual buildings and output a rating with which to compare the energy efficiency of different buildings.
The goal of the new program is primarily to address the issue of valuing energy efficiency (it does not address other green features like water usage, etc.) discussed above by providing a common metric for comparing the energy efficiency of commercial properties, and providing a reliable and common system for evaluating commercial building energy efficiency.
The devil is in the details, of course. The RFI proposes several different models for valuing energy, evaluating energy efficiency, and conveying the information. If the DOE program is created, the commerical real estate community could soon be using a 100 point scale, like LEED, or a star system like the Energy Guide labels on appliances. The robustness of the inputs and the energy model is critical to accurately evaluating building energy use, the simplicity of the input system will determine whether commercial building owners will use it to rate their facilities, and the representation of the "score" will determine whether users will actually understand and act on the information.
Many will ask "Where does this leave LEED?" The proposed commercial building program is much less ambitious than LEED, in that it focuses exclusively on energy use. However, if every building has a "[High]rise Star," commercial building owners may be less likely to seek LEED to verify the green-ness of the facility. Since Highrise Star will be free, the incentive to invest in LEED may be significantly reduced. The ultimate test will be one of reliability--if Highrise Star is seen as robust, reliable and easy to use, LEED will have its work cut out for it to compete. If it is viewed as too "easy" to achieve high marks for energy efficiency or if the interface is too cumbersome, then LEED will not be so directly effected.
In any event, since government programs are often VERY slow to be developed, it may be a while before [High]rise Star comes on line.
Yesterday, the City of Kansas and the County of Wyndotte sued the General Services Administration for moving the EPA Region 7 headquarters from an older LEED building in the Kansas City central business district to a former Applebee's headquarters in Lenexa, Kansas. The complaint is available here.
This is a fascinating suit in that it highlights the paradox of a green building on an unsustainable site. Lenexa can only be described as a typical midwestern sprawling suburb, and the proposed new EPA headquarters is in an office park. A Google earth map of Lenexa is available here and the proposed building is available here.
The lawsuit alleges that the GSA violated two executive orders mandating that Federal facilities be sustainable and located in urban cores.
EO 12,072 requires:
Federal facilities and Federal use of space in urban areas shall serve to strengthen the Nation’s cities and to make them attractive places to live and work” and mandates that such Federal space “shall conserve existing urban resources and encourage the development and redevelopment of cities.
and Executive Order 13,514 which mandates, among other things, that
the head of each Federal agency to “advance regional and local integrated planning by . . . (iii) ensuring that planning for new Federal facilities or new leases includes consideration of sites that are pedestrian friendly, near existing employment centers, and accessible to public transit, and emphasizes existing central cities. . . ."
The GSA defends its decision to move from a green building in the central business district to a suburban office park on two grounds--it is cheap and it is green:
GSA spokeswoman Angela Brees said she could not comment on the lawsuit, but reasserted the agency's claim that the Lenexa building was the cheapest available, even when considering the cost of moving to a new office. [The building] also scored highest on technical criteria that include sustainability and design, she said. The owners of the building, which has been given a Silver rating by the U.S. Green Building Council's Leadership in Energy and Environmental Design program, have vowed to upgrade it to meet LEED Gold standards and get a Platinum rating for operations and maintenance by the time employees arrive.
Putting aside the environmental implications, I would argue (and the Complaint alludes to it as well) that the Lenaxa decision does not hold up on a purely economic basis, let alone an environmental one. The new site is located outside of the central business district, and has little access to transit. This means that every time an EPA employee has to go to a meeting, the courthouse and to other businesses in the course of their official duties, they must do so by car.
Currently, the Federal government reimburses private vehicle travel at $.51 per mile. Previously, the distance from the EPA headquarters to the Kansas City Federal Courthouse was .6 miles. The distance from the Lenaxa facilitiy to the Federal courthouse is 21 miles.
According to the New York Times, the Applebee's HQ rent is more than the current rent. On top of that, based on the above calculation, the taxpayer will be paying a $20 surcharge for every trip of an EPA Region 7 lawyer, paralegal, witness to the courthouse. Of course, it will also mean the same $20 surcharge for any other trip of any Region 7 employee travelling to the Kansas City CBD on official business.
Utilmately, it appears that this will not be a green decision, in either sense of the word.
There is a corner of the Federal government that, unless you are as data obsessed as I am, you never knew existed. For the part 25 years, the Energy Information Administration (EIA) has collected baseline data on commercial building energy usage, known as CBECS. CBECS is the only government source of statistical data for energy consumption and related characteristics of commercial buildings. The data EIA has collected forms the underlying data for programs like Energy Star and LEED, and laws like Energy Independence and Security Act of 2007 (EISA 2007).
Two pieces of bad news were released today. First, the EIA tried to cut costs by contracting out its building energy information gathering. Unfortunately, the data gathered by its contractor was so shoddy that the EIA is refusing to release the data.
According to a press release from the EIA:
EIA regrets to report that the 2007 Commercial Buildings Energy Consumption Survey (CBECS) has not yielded valid statistical estimates of building counts, energy characteristics, consumption, and expenditures. Because the data do not meet EIA standards for quality, credible energy information, neither data tables nor a public use file will be released.
Worse still, according to the EIA, the budget cuts made in this year's budget negotiations have reduced the EIA budget so severely that it will suspend collection of 2011 data. In other words, the best building data we have to work with at this point is almost 10 years old, and no further data is being collected.
Because approximately 30% of all energy is used by buildings, without a good baseline assessment of current building energy use, it will be difficult to:
- Accurately benchmark current building performance; and
- Accurately model building energy efficiency efforts.
If energy models are based on bad or old or unreliable data, the results in practice may not live up to the predictions, and it will be easier to dismiss efforts to comprehensively transform building energy usage. In other words, garbage in, garbage out.
To address this situation, there are two choices.
A relatively unbiased private organization, like ASHRAE or the International Code Council, could collect the data. Although the standard setting organizations will have their own internal and external customers to serve, and questions will inevitably arise as to the bias and validity of the data, they possess the relevant expertise and are currently relied upon to provide input into laws (like building codes). The other option is for the Department of Energy or other government agency to recognize data gathering as a priority, and reallocate funds for the purpose of building energy efficiency data collection.
In any event, a reliable party must step up to fill the data void, or future efforts to actualize the most cost effective method of reducing energy use and greenhouse gases will be squandered. We will pay now through unnecessarily high energy costs and the price tag for participating in conflicts in the Middle East, and future generations will pay for damage to the environment. Garbage in, garbage out.
Happy New Year and welcome to GBLB 2011. When the clocked struck 12:01 on New Year's, two important green regulations went into effect that may have a long term influence on green building and renewable energy. If successful, either of these regulations would do more to change the green industry than any legal challenge to LEED's legitimacy (see the continued coverage of the Gifford v. USGBC case here and here):
As I have said before, green building practices are becoming code, and California has (as usual) taken the lead. California is the only state to have a state-wide green building code, CALGREEN, which went into effect on January 1, 2011. If California successfully implements this mandatory green building code without siginificant impact on building rates or building costs, look to other states and municipalities to follow. Implementing green via building code is being made significantly easier throught the creation of the International Green Construction Code (IGCC) which integrates with the ICC construction codes already in place in most jurisdictions.
An interesting question that has been bandied about is what a green construction code will do to LEED. California will be an interesting laboratory. Will developers still seek LEED certification for their buildings when all new construction must be green? How sensitive is the customer base to "green" vs. "more green?"
2. EPA Regulation Of GHG Under the Clean Air Act
EPA limits on greenhouse gases for power plants which also went into effect January 1 (a quick fact sheet from the EPA is available here). When cap-and-trade or cap-and-tax died in Congress last year, the EPA continued its plan to regulate GHG via the Clean Air Act. There is significant controversy over these limitations, and legal challenges have been filed. On Wednesday, December 29, 2010, the Fifth Circuit Court refused to stay the regulations, and on Thursday December 30, 2010, Texas filed a petition to the Court of Appeals in the Federal Circuit to stay the regulations. If the EPA regulations on power plants remain in place, more GHG regulation of other categories will follow, creating the same massive shift in the priority of green tactics to manage GHG emissions that cap-and-trade would have had.
The reason I started this post by saying that these regulatory efforts may (not will) shift the green building and renewable energy industries is because of the massive efforts being undertaken to derail the regulatory efforts.
According to the Center for American Progress:
The 20 biggest-spending oil, mining, and electric utility companies shelled out $242 million on lobbying from January 2009 to June 2010. Trade associations that generally oppose clean energy policies spent another $290 million during this time. This is over $1,800 in lobby expenditures a day for every single senator and representative.
Opponents of GHG regulations were successful in killing cap-and-trade legislation in Congress. In California, a referendum seeking to overturn California's cap-and-trade regulations was on the ballot in the November election, although it was defeated handily.
In the tug of war over between proponents and opponents of environmental regulations, watch these two hotspots in 2011.
My two and a half year old daughter likes conversations about pee. She is not the only one in my life, apparently. To my infinite surprise, one of the top rated posts on GBLB over the past year was the one I did in February on waterless urinal problems.
Either we are about to see a wealth of suits related to waterless plumbing failures or it is representative of the trend where people ascribe old problems to failures of new technology. New technology is not without its pitfalls--as any user of a new version of Windows is familiar with--but people also have heightened expectations of what new technology can achieve.
For example, one of the main issues with waterless urinals is odor. However, according to my husband, the smell of conventional urinals at the average sports arena is nothing to write home about. In addition, according to at least one report from Facilitiesnet.com:
Rasmussen’s department also has fielded complaints about odors related to the units, but more often than not, the problem is related to housekeeping methods rather than the unit’s operation.
So, new technology has two potential pitfalls--the technology itself, and how it is used.
Like waterless urinals, the LEED system is not perfect, and some say they both smell funny. But the tools that LEED provides are only as good--or bad--as the people who use them. In defining LEED, the USGBC states:
Developed by the U.S. Green Building Council (USGBC), LEED provides building owners and operators a concise framework for identifying and implementing practical and measurable green building design, construction, operations and maintenance solutions.
If you choose a difficult site, your energy model is lousy, your architect acheives points for slapping a bike rack on the project, and you value engineer out the shading on the windows, I can promise you that your building will not live up to green expectations, even if you get your LEED plaque. A building team that doesn't use the LEED system, but still works hard to conserve energy, water and other resources throughout the building process will undoubtedly be more environmentally friendly than a conventional building, and even some LEED buildings.
Many argue that because both of these scenarios are possible, LEED is a failure. However, the point of LEED, and at some level its greatest triumph, is getting the whole building industry to think about five key areas of sustainability in the built environment--site, water, energy, air quality and materials. It also gives any building team guidance and structure on how to move towards sustainability on each of these metrics.
More importantly, any new system must have the capacity to incorporate feedback (good or bad) and improve. Keep the good, and make sure what is "bad" is really bad, and not just unfamiliar or the result of heightened expectations, and evolve. In that vein, USGBC opened the new LEED systems for public comment today. If you hate LEED, this is your chance to tell the USGBC that, and have a voice in changing the system. But when you criticize LEED, make sure what you are criticizing is about failures with LEED, and not about unachieveable expectations for what LEED can do.
As my friend Mitch Swann once told me, LEED will not make you taller or grow more hair, any more than the waterless urinals will help the situation in the men's rooms at Citizen's Bank Park.
PS: For the reference in the title of this post, please see here.
Guest Post by Stuart Kaplow. Stuart Kaplow is an attorney, based in Baltimore, with a real estate practice concentrating in green building and sustainable business. His law firm website is www.stuartkaplow.com
Building green is the law in Baltimore City. And while the mandatory requirement for all to build green has been in effect since July 1, 2009, the City has just announced the regulations (that were, arguably, to have been effective July 1, 2009) were promulgated last week, effective September 16, 2010.
Make no mistake, Baltimore City is not green washing. To the contrary, it was an early adopter when it enacted a green building law in 2007 that, today, remains among the most sweeping of that in any major American city.
Baltimore City Building Code, Chapter 37 mandates that all newly constructed, extensively modified non-residential, and specific multi-family residential buildings, that have or will have at least 10,000 square feet of gross floor area, “for which a building permit application is filed on or after July 1, 2009 must achieve a silver-level rating in the appropriate LEED rating system, as certified by the Green Building Council”. (Mandating that privately owned buildings be constructed to a LEED standard is no less controversial than religion or politics.)
”Extensively modified” is a modification that alters more than 50% of the building’s gross floor area (such that many major renovations will have to be LEED silver certified is a big deal).
The City Code further requires that “the Building Official must issue regulations to administer .. [this law and that] those regulations must specify: 1. The LEED rating system, and any equivalent energy and environmental design standard, that applies to each type of covered building.”
As the key component of those regulations, the City has developed its own “equivalent” green building standard, based largely upon the LEED 2009 rating standards, layered with fast, flexible new approaches to sustainability taking advantage of the powerful opportunities and challenges of building in an older urban area. A City checklist of 150 credits (versus 110 credits on a LEED checklist) has been released for new construction.
The game changing regulations create the “Baltimore City Green Building Standards” enabling an applicant to satisfy the law with either at a minimum LEED silver certification or obtain a “2 Star” (on a 5 star scale) City approval under those City Green Building Standards.
Building permit applications are, today, being accepted utilizing the Baltimore City Green Building Standards even in advance of the regulations being final.
There are opportunities to prosper and thrive in the greening of Baltimore. All are welcome.
By: Patrick J. Bello, LEED AP, Drexel University Earle Mack School of Law, Class of 2012
In April 2009 the U.S. Green Building Council launched LEED v3. Prior to this upgrade, any professional seeking to achieve LEED AP status had a choice of only three exam tracks: 1.) New Construction; 2.) Commercial Interiors; or 3.) Existing Buildings. Upon successful completion of the accreditation exam, you received a single encompassing designation as a “LEED AP.” There was only one exam necessary, and there were no prerequisites beyond being a professional in some field related to real estate and development. Today however, under the new credentialing formats, there is a 2-Step process before a professional can obtain the LEED-AP designation.
STEP 1: GREEN ASSOCIATE
The first step requires that a person interested in becoming LEED accredited first meet the criteria listed online for becoming a “Green Associate.” If you meet these requirements, you are eligible to sit for the Green Associate exam. A Green Associate is considered to have the basic overall knowledge of the LEED certification process, but they do not have any “specialized” knowledge. The "Eligibility Requirements" that one must meet to take the Green Associate exam are far more relaxed than the LEED AP requirements. Essentially, you must prove that you are a professional in some field related to "sustainability" – it is quite broad. You would need to get letters (from employers/clients/etc.) verifying that you do in fact work in a sustainability profession, then send them in to the GBCI for approval. It is all part of the "Application Process" to verify eligibility to sit for the exam. The GBCI website provides a detailed step-by-step guide outlining the credentialing process.
STEP 2: LEED-AP with Specialty
Step two, becoming a “LEED-AP,” entails more stringent prerequisites – namely, in order to be eligible to sit for the LEED-AP exam, you must have worked on a LEED certified project within the last three years. If you do not meet this requirement, the highest level of accreditation you can achieve is the Green Associate designation. But if the LEED-AP requirements are met, you may sit for both exams at once – but note, that in order to become a LEED-AP, you must still first successfully complete the Green Associate exam track as well.
If the person seeking accreditation does have the required experience on a LEED project, professionals are required to select a specialty under which they wish to become accredited. The specialties are referenced as, LEED AP:
1.) Neighborhood Development (ND),
2.) Building Design and Construction (BD+C),
3.) Interior Design and Construction (ID+C),
5.) Operations and Maintenance (O+M).
According to the Green Building Certification Institute (GBCI), the new variations, “show differentiation in a growing and competitive industry, and they allow for varied levels of specialization.”
Exam prep workshops, webinars and reference guides are available to view or purchase online on the USGBC website. Professionals who completed the LEED exams prior to the 2009 changes, are in essence “grandfathered” into the new program. They retain status as LEED AP’s without having to go through any additional re-testing or completing continuing education credits. LEED AP’s completing the exams prior to the 2009 switch are given a 2-yr window during which they may choose to select a specialty – enrollment period ends in the fall of 2011. For example, a professional who had taken and passed the LEED for New Construction v2.2 exam before April 2009 will never lose their LEED AP status, but may elect to update their enrollment by selecting a specialty, such as LEED AP, BD+C. The upgraded status will however require either continuing education or re-testing in order to be maintained.
So just as the LEED certification process has become subject to more strict requirements and post-certification “checks,” so too has the accreditation process.
The Northland Pines LEED appeal (a complete history is available here) and the Deepwater Horizon spill illustrate an inherent problem in any regulatory system--there will always be people who are looking to avoid regulation and commit fraud, and there will always be regulators looking to protect the status quo of regulations.
Many people have called for the abandonment, execution and other stringing up of the LEED system because there are flaws, perhaps including the ones identified in the Northland Pines appeal. Just in the past few weeks, in addition to Northland Pines, we have seen criticism of the USGBC for its wood credits and its alleged failure to take into consideration human health issues. Frank Gehry, from his vaunted position as one of the world's most famous architects, has fired his own shots at the LEED system, saying:
“I think the issue is finally a political one,” Gehry said. Referring to the LEED (for Leadership in Energy and Environmental Design) rating system...Gehry said: “A lot of LEED is given for bogus stuff.” The costs of making a green building are “enormous,” he said, and “they don’t pay back in your lifetime.”
He tried to clarify his position here a few days later.
But we cannot throw out the baby with the bathwater. LEED is the system that got people started thinking about the greenness of the built environment. It needs to progress, as all regulatory systems do, through amendment and challenge, like laws do. It is neither right for the USGBC to resist or be defensive to this natural regulatory process, nor is it right for LEED's critics to suggest dismantling the entire LEED system. As my mother once said, there has to be something between everything and nothing.
Northland Pines High School in Eagle River, Wisconsin will go down in the annals of green building history as the first third party appeal of a LEED certification. In short, two engineers and five local citizens appealed the grant of LEED Gold certification based on the school's alleged failure to comply with the energy, commissioning and indoor air quality prerequisites. The complaint is available here.
According to the appeal:
- EA1, Prerequisite, Fundamental Building Systems Commissioning was not complied with. The first three steps of the Commissioning Process include review of design intent, basis of design documentation, and incorporation of commissioning requirements into the Construction Documents. All are required prior to bidding and construction. The reviewing professionals have been unable to confirm that any were performed. Had a competently executed Design Review been performed by the Commissioning Agent, as required by LEEDTM NC 2.1, ANSI/ASHRAE/IESNA Standard 90.1-1999 and ASHRAE Guideline 1- 1996, the majority of the EA2 and EQ1 violations identified by the reviewing professionals should have been identified by the Commissioning Agent and corrected by the design team prior to the issuance of the Construction Documents for bid.
- EA2, Prerequisite, Minimum Energy Performance: The design of the HVAC systems and other listed elements of the building do not comply with all of the requirements of ANSI/ASHRAE/IESNA Standard 90.1-1999. The scope and number of prerequisites violations was pervasive.
- EQ1, Prerequisite, Minimum IAQ Performance: The design of the HVAC systems failed to comply with ANSI/ASHRAE Standard 62.1-1999, Ventilation for Acceptable Indoor Air Quality. Validation computations were performed to determine the actual basis for ventilation rates and to determine what the actual ventilation requirements would have been had the required Ventilation Rate Procedure computations been performed. These computations established that the actual basis for ventilation was the Wisconsin Enrolled Code, which produces significantly lower ventilation rates at both individual zones and at the system level than those which would have otherwise been required to comply with ANSI/ASHRAE Standard 62.1-1999.
In April, the USGBC upheld the Northland Pines certification, stating:
After extensive review, USGBC and its consultants have no reason to believe that the project failed to meet all of the LEED prerequisites and credits that it has attempted. Thus, USGBC will not act to revoke certification or disallow any prerequisites or credits. Northland Pines High School will retain the 40 points awarded to the project in its original review. The project remains certified at the Gold level.
This week, the appellants, unsatisfied with USGBC's review, issued a three page reply, entitled "LEED Credibility Destroyed".
It is obvious that USGBC fails and refuses to acknowledge their inability to enforce and their unwillingness to support their intellectual property or defend their client's property rights. Both independent consultants to the USGBC share the same shame as the designers and contractors who submitted the LEED® application to the USGBC for not admitting that this building does not comply with the two prerequisite ASHRAE Standards in their entirety. Mr. Taylor, who knew better or should have known better, is even more culpable by virtue of his service on both ASHRAE committees and chairing one.
We are awaiting the USGBC's response, due any time, defending its position.
The question has become are the Northland Pines objectors Needling Naysayers or Constructive Critics? And why does it matter? If the Northland Pines objectors are constructive critics, they should be encouraged by USGBC. Valid complaints about construction fraud should have a place within the LEED system. But the process could easily become overwhelmed by Needling Naysayers, or as my husband calls them, BANANAs--Build Absolutely Nothing And Nowhere Anytime. I could see the USGBC/GBCI overwhelmed by neighbors objecting to every project, slowing down the process, making it more expesive and discouraging green building and LEED certification. This is what often happens in local government zoning hearings and land development approvals processes.
USGBC/GBCI is in the process of amending its challenge process. The new process needs to strike a balance between allowing sunshine in to expose fraud, and providing USGBC/GBCI the opportunity to cut off baseless claims.
My good friend and savvy LEED litigation sleuth Steve Del Percio uncovered a case filed in New York that involves, among other things, an allegation of failure of the heating system to perform properly. The luxury condominium building, at One and Two River Terrace in Manhattan was advertised as LEED Gold. The Compalint alleges that an energy audit conducted by the plaintiffs revealed deviation of "49% over the USGC LEED and BPCA standards in the cumulative size of holes and cracks allowing infiltration of cold air." But this claim is about the performance of the heating system--failure to heat--not its energy performance. The other claims in the case are similarly basic construction law claims--the failure of a railing to protect from falls and frosted glass windows where there were supposed to be clear glass, for example.
The case incorporates allegations regarding the green components of the project as support for its regular construction claims, not for failure to acheive green requirements. In the five causes of action against the architects and the cause of action against the engineer, failure to construct a green building is nowhere to be found. The causes of action against the developer do not include a cause of action for false advertising regarding the green components of the building. In short, throwing in the energy audit information and noting that the building was LEED certified is the construction litigation equivalent of greenwashing.
This is not to say that the case could not develop these claims through an amended complaint if more information is uncovered during discovery. Indeed, with the press that the case is receiving--it got a mention in yesterday's Wall Street Journal--these areas might be developed further.
USGBC/GBCI had its first challenge of a LEED decision. According to the Green Real Estate Law Journal:
a group of local residents have filed a 125-page complaint with USGBC that challenges the award of LEED Gold certification to the Northland Pines High School, which was completed in the fall of 2006 and earned formal certification under LEED for New Construction Version 2.0/2.1 on May 10, 2007.
GBCI reviewed the challenge and recently upheld the certification.
Now, GBCI is considering modifying its challenge process. The revised challenge process will be more formal, and is likely to remove the opportunity for the project to cure any deficiencies in achieving the LEED certification which exists in the current form of the appeals process. I will keep you apprised as more details emerge.
CORRECTION: This post originally stated that GBCI was modifying the "appeals" process, not the "challenge" process--The Appeals process is what a project team uses to approach GBCI if they feel a credit, prerequisite, or MPR was decided incorrectly. The Challenge process is the mechanism whereby a third party, or GBCI, can initiate an investigation regarding the proper satisfaction of such program requirements. It has been corrected.
Yesterday, the USGBC launched LEED ND, the program for certifying neighborhoods as green in cooperation with the National Resources Defense Council (NRDC) and the Congress for the New Urbanism (CNU). I am a big fan of the concept of LEED ND, because (as I have discussed extensively on prior posts), a green building on an unsustainable site is not green.
According to CNU, LEED ND:
integrates the principles of new urbanism, green building, and smart growth into the first national standard for neighborhood design, expanding LEED's scope beyond individual buildings to a more holistic concern about the context of those buildings.
However, certifying neighborhoods automatically requires that the timeframe is much longer than that required for individual buildings, and may incorporate many different owners of different parcels and over the lifecycle of the project. According to the USGBC, LEED-ND projects will typically comprise of numerous buildings within a geographical area of up to 320 acres.
To address these issues, LEED ND has a different registration process. Projects are registered at three different stages of development:
Stage 1 – An application for Stage 1 may only be submitted for those projects that have achieved land use entitlement for no more than 50% of the square footage of all buildings within the project boundary, whether new or renovated, as measured on an aggregate basis.
Stage 2 – An application for Stage 2 may only be submitted for those projects that have achieved land use entitlement by public authorities with jurisdiction over the project for 100% of the square footage of all buildings within the project boundary, whether new or renovated. The project may be under construction or portions completed, but may not have more than 75% of its total building square footage constructed, whether new or renovated.
Stage 3 – An application for Stage 3 may only be submitted for those projects that are completed. A project is complete when: i) the appropriate regulatory authorities have issued certificates of occupancy (or other official designation that such facilities are fit and ready for use) for all buildings within the project and have accepted all infrastructure within the project; ii) every aspect of the project that pertains to a prerequisite has been completed; and iii) every aspect of the project that pertains to a credit that is being pursued has been completed.
At Stage 1 and Stage 2, GBCI will award an official designation to a project team rather than full certification. These official designations indicate that if a project is completed consistent with the information provided in the project application, then such completed project should satisfy all prerequisites and achieve a minimum number of points outlined in the LEED for Neighborhood Development rating system such that it should be eligible to receive LEED certification at a particular level, such as LEED Certified, LEED Silver, LEED Gold or LEED Platinum. At stage 1 a successful project team will be awarded “Conditional Approval of a LEED for Neighborhood Development Plan.” At stage 2 the project team is awarded a, “Pre-Certified LEED for Neighborhood Development Plan.”
This, of course, leads to a fundamental issue which vexes any land approvals process—what happens when the certification criteria change over time. With a standard land approval, like zoning, projects are generally subject to the laws that were in place when the project was submitted to the regulatory body. This is also how projects registered for LEED Certification have also been treated. Not so with LEED ND. According to the USGBC,
LEED-ND projects are not grandfathered to the rating system requirements in place at the time of initial registration…Under LEED-ND, projects can be registered a total of three times, once at the initiation of each stage. The rating system requirements are locked in for a particular stage at the point the project is registered for that stage rather than when it is registered at the initial stage.
So, you can begin a project under the requirements of LEED ND 2009, but be held to the standard of LEED ND 2018 when the project is ultimately completed.
I asked Susan Dorn, General Counsel for the USGBC about this “moving target” issue.
We are treating the registration for each stage independently. It is possible that people will not go beyond the first stage of registration, and likely in some instances. A lot of things happen with development on these long timelines. We also didn’t want the market to think that a project that was started 20 years ago was compliant with current LEED requirements. While the USGBC cannot commit, the issue of grandfathering will be something that we will keep in mind as the rating system develops. For 2012 the idea is that those persons that are working to develop LEED ND are aware of the issue, and there may be something akin to grandfathering.
Beyond whatever grandfathering may be built into subsequent versions of LEED ND, there is a section of the certification policy manual that addresses hardship. GBCI has some discretion with respect to credits which are impossible for a project to achieve. On the other hand USGBC doesn’t want to undermine the concept of LEED moving forward and mislead consumers. That is the tension.
I recommend that the USGBC develop a credit exemption process, by which LEED ND projects can demonstrate that complying with the as written requirement is impossible, and proposing an alternative. Since the timeframes are long and the projects are complex, some flexibility needs to be built into the system for it to be successful. No zoning code could exist without a mechanism for variance. This is what LEED ND needs going forward.
My new friend Timothy Hughes over at Virginia Land Use & Construction Law Blog had a nice piece highlighting the flaws in the New York Times analysis of the Nathaniel R. Jones Federal Building and US Courthouse (Youngstown, OH) which it used as a primary example of LEED buildings failing to live up to their green claims. Most interesting in his expose was the fact that the Jones Federal Building did not purport to have energy efficiency as its primary goal:
A review of the GSA study on its website reveals a few interesting facts that the Times left out of the article:
The GSA study was of 14 first wave green GSA buildings ; 8 were LEED certified, 2 were LEED registered, one used Green Building Challenge, and three were designed with an emphasis on energy efficiency
The Federal Building project did not seek any credits for energy efficiency under EA Credit 1. Similarly, the project did not seek points for additional commissioning, measurement and verification, or green power
While the Federal Building project did not receive the 75 score required to qualify for Energy Star, it did in fact reach a 58 despite the fact the building did not even try for the energy efficiency credits. Every other GSA project contained in the study qualified for Energy Star
I perceive this as an example of Energy Myopia, which we have seen in recent green building regulation, particularly the Waxman-Markey Bill. Section 201 of the Waxman-Markey bill calls for an energy efficient building code, as described in greater detail here. It does not, by definition, address water efficiency, site selection, indoor air quality, or materials usage, the other components which most green building rating systems, particularly LEED, encompass.
Why is this? There are a few factors at play.
First, energy efficiency is important. With carbon emissions causing global warming, and coal fired power plants producing lots of carbon emissions, reducing energy use is critical. However, with global warming, many are arguing that water efficiency is at least as paramount. Moreover, saving water through reduced use literally makes more water available for other uses--it is a direct resource saving, in a way that the impact of building energy savings is not.
The second reason that energy has been the focus is the same reason people rob banks--because that's where the money is. As I wrote earlier here, of the entire ARRA allocation of $60 billion for "green" programs, the EPA was allocated exactly $0 for green building, and a measley $7 billion over all. By contrast, the DOE was allocated $32.7 billion, with $5 billion for weatherization alone.
Third, energy savings is comparatively easy to measure. How do you measure the environmental savings of selecting an urban infill site instead of a suburban greenfield? In vehicle miles saved? Runoff averted? Stream quality? It is easier for proponents of green buildings and critics alike to use energy savings as a proxy for environmental friendliness.
It is critical for green building regulations to encompass the mulit-faceted environmental impacts of the built environment, and to look holistically at the environmental impacts of so-called "green buildings."
Later this week...Why Holistic Green Building Regulation Is Hard And What To Do About It.
As I mentioned here, there has been a lot of tongue wagging on the internet about LEED performance issues. Yesterday, Rob Watson, USGBC Board Member and Greenerbuildings.com Executive Editor responded. The gist of his response is that critics of LEED should really be participating in improving it:
The thing that really pisses me off is when people who should be helping something like LEED succeed cut it down. The only thing that benefits is the status quo. So stop your whining and moaning and put your energy into moving toward what Elaine Gallagher Adams calls the seeds of the municipal carbon economy where LEED is playing a key role in getting buildings beyond code minimum.
Many of Rob's points are good ones--tearing down LEED without providing constructive suggestions for how to improve the problem is about as useful as throwing rotten tomatoes. Also, critiques coming from those that are not engaged in the processes for developing the standards--be it USGBC, ICC, ASHRAE, etc.--may not be fully informed about the efforts that are ongoing to fix the issues, and those critics certainly are not participating in the hard work that is necessary to build something, which is much more difficult than tearing down what others have done. As Secretary of the Delaware Valley Green Building Council, member of USGBC's legal advisory board and participant in the ICC green building code team, I try to do my part in being fully informed and active in the process of creating great green building standards.
However, Rob takes a very harsh stick to the dialogue about LEED and building performance:
People need to stop pretending they are providing any insight on issues LEED needs to deal with. Honestly, anyone who thinks that the issues of energy use per square foot, how to get at operations energy though a design standard, how to make energy modeling more representative of what actually happens in a building, etc. haven't been discussed at LEED since 1995, needs to stop sniffing whatever it is they're sniffing. Really . . . it's bad for you.
There is an important role for analysis and critique in any complex process. Not only do outside observers from different points of view pick up on things that participants in the process may not see, they may have constructive suggestions about how to improve either the process or the underlying problem.
But even thoughtless criticism has a place. It serves as an important temperature gauge for the institution about how well it is communicating its message, and where opponents to a given position may have a toehold. The gun-toting, expletive shouting health care contrarians may not have much constructive to say about how to fix the healthcare system, but they gave a big indication of the fact that Obama's message was not being effectively received, and where the plans needed to be shored up.
The New York Times article was, as Rob and I have noted, old news to those of us who have been working in this field. But it gives the USGBC an excellent opportunity to highlight the efforts it has made, as Rob notes, for years to manage the energy issues, and to spotlight buildings which are performing well. When the Grey Lady is choosing to report on energy performance, you know you have made it into the mainstream. Now the USGBC should take its publicity--good and ill--and, like Paris Hilton, use it to promote the brand and move green building forward. As Oscar Wilde once said, "The only thing worse than being talked about is not being talked about."
Early in my blogging days, I wrote a post on the problem of green sprawl--the practice of developing "green" buildings on unsustainable sites. Can a building really be considered green if it is built on greenfields in the urban periphery (like green Wal-Marts or Best Buys), or a single family dwelling comprising of tens of thousands of square feet? Twitterer Lauren Glasscock sent along this fabulous link to the 10 dumbest "green" buildings.
I read about a new version of this phenomenon in Chattanooga. Apparently, Unum Group is:
[B]uilding a $20 million project that includes a parking garage to hold about 1,450 cars which will attempt to be Leadership in Energy and Environmental Design certified by the U.S. Green Building Council.
So now the big question-- Can a parking lot for 1,450 cars ever be "green"?
To be fair, the Chattanooga Times reports:
The garage, expected to be completed in the fourth quarter of 2010, will open the way for the sale of much of Unum's 28 acres of surface parking lots.
Mr. Watjen said property will likely be turned into development for downtown, but it is unclear exactly how it will be distributed.
A garage structure is more sustainable than surface parking lots, for the runoff factor alone. But I question the "green"-ness of erecting infrstructure for 1,450 cars. Is this something the USGBC should be certifying? Or does it compromise the fundamental credibility of the LEED system?
In the interests of full disclosure, I am a member of the International Code Council's team crafting a Green Building Code.
Accoding to the ICC:
The objective of this new project is to develop a Green Building Code for traditional and high-performance buildings that is consistent and coordinated with the ICC family of Codes and Standards.
After LEED, Green Globes, BREEM, Energy Star, NAHB Green and the prospective ASHRAE 189, why on earth do we need another green building standard? Is it simply to give people like me something to do in their spare time (I had thought about taking up knitting)? The answer is definitely not.
As articulated above, the point of the ICC Green Building Code is to be consistent with the other I-codes which most jurisdictions have adopted (or tweaked) as the basis of their building codes. Thus, builders building green buildings must adhere to two standards at least--the conventional I-Code based building code, and the green building standard. This has caused many issues, including the waterless urinal fiasco, in which waterless urinals were prohibited under conventional code provisions. By integrating a green building standard with the building code, these types of headaches can be minimized.
In addition, code officials and policiticians are comfortable with adopting and utlizing I-Codes as the basis for building regulations. Thus, municipalities do not have to reinvent the code wheel when looking to implement green building practices.
Finally, a solid compromise green building code can advance green building as the default standard. In California, which has adopted a green building code, various interest groups, including the California Building Industry Association, have come on board with the code.
There will always be a place for aspirational green building standards. LEED, for example, should provide new and innovative and more challenging ways to reduce GHG emissions, materials usage, enhance energy efficiency, etc. The goal of a code, however, should be to raise the floor of all buildings to a greener baseline. ICC's Green Building Code effort is a step towards making that happen. So, for me, knitting will have to wait.
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.
Over the past couple of weeks, the USGBC announced that it was incorporating energy and water usage reporting requirements as a precondition for acheiving LEED v3 and Google announced that it will debut a cloud-based operating system some time in the next 18 months. The answer to how these two entities are similar is simple: both entities announced good ideas perhaps before their time.
Let's take a closer look at the reporting requirements for LEEDv3. Projects can comply with the performance requirement in one of three ways:
1. The building is recertified on a two-year cycle using LEED for Existing Buildings: Operations & Maintenance.
2. The building provides energy and water usage data on an on-going basis annually.
3. The building owner signs a release that authorizes USGBC to access the building’s energy and water usage data directly from the building’s utility provider.
Currently, accessing energy and water usage data can be very difficult, particularly without submetering. In addition, I would expect that public utilities would be loathe to turn over water and energy usage data to a third party. Finally, the turnover of operations in buildings from owner to management company and in some cases to the tenants will create layers of reporting and data gathering issues which are intense. For example, a building is submetered to tenants. What if one tenant chooses to report, and another does not?
The reporting issues go beyond the merely logistical. Ongoing reporting and monitoring by the USGBC will create a new body of work for an institution which has already come under fire due to backlogs in certification. Not only will the USGBC's new certifying sister agency have to certify new projects, but monitor old ones ad infinitim. It will create additional issues for states and municipalities which have incorporated LEED standards into their green building regulations and incentives. What happens to a 10 year property tax abatement if the project loses its LEED certification after 2 years due to failed energy savings? Additionally, as Chris Cheatham points out, there are new legal liability issues which emerge, like risks of suit to architects and engineers.
All this is not to say that the USGBC should not incorporate ongoing energy reporting into the LEED process. Like Chrome OS, the idea is a good one. I believe that a green building that does not perform should not be allowed to continue to benefit from the LEED moniker. There are a few things which could make it work better:
1. Create differrent levels of certification as time elapses--LEED at construction, different from LEED at 5 [years] or LEED at 10 [years], which reflects the ongoing achievement of green goals. This eliminates the issue of "decertification", while providing ongoing incentive to report and maintain buildings to the LEED standard.
2. Phase it in--This ensures that the reporting requirements can be complied with, and allows utilities and others to come to grips with the concept of releasing to third parties energy data. As it stands, projects registering for certification now must comply.
How can you envision the reporting requirements working more effectively?
According to the SF Examiner, LEED "now includes an energy reduction component called Sustainable Food."
Building owners and managers can now gain credit towards LEED certification by using sustainably harvested foods certified by pre-approved organizations including USDA Certified Organic, Food Alliance Certified, Protected Harvest Certified, The Rainforest Alliance, Fair Trade, and the Marine Stewardship Council's Blue Eco Label, and/or by acquiring food from within a 100-mile radius for food service and catering functions at the building. The threshold for achieving this credit is for 25 percent of all food and beverages to meet one or more of these sustainability criteria. Double points are awarded if the food is both certified and locally harvested.
Is this a good idea? It's true, all buildings will serve food at some point, but I am not sure that integrating an operations component like sustainable food is a good idea for a green building standard. For example, if a municipality incorporates the LEED standard, and a building owner chooses to adopt the sustainable food credit, will the municipality have to police whether 25% of their food purchases are local and organic?
Now using this argument, there should be no operations related credits in the LEED program. This, of course, is not reasonable either. The question becomes, to my mind, what operations credits are integral to the creation of a green building, and what items are merely good sustainable practices for everybody. Once LEED enlarges its mantle to include every sustainable practice, it dilutes its legitimacy as a rigorous standard. There is enough work to be done in managing the
- 72% of electricity consumption,
- 39% of energy use,
- 38% of all carbon dioxide (CO2) emissions,
- 40% of raw materials use,
- 30% of waste output (136 million tons annually), and
- 14% of potable water consumption
that come from buildings directly without frittering away efforts on peripheral matters.
In today's News-Tribune of Tacoma, Washington (admittedly not on my usual roundup of morning papers) there was anop-ed piece by a conservative columnist calling for Washington (state) to roll back "green" requirements for schools because they are not creating the energy savings promised when enacted.
The 2005 law calls for schools to be designed, constructed and certified to LEED Silver standard. At the time, the Governor Gregoire's press release stated:
According to the State Board of Education and Superintendent of Public Instruction’s office, use of sustainable building designs result in:
20% annual savings in energy costs
20% reduction in water costs
38% in waste water production
22% reduction in construction waste
A potential reduction in student absenteeism
A potential 5% decrease in teacher turnover rates
A potential 5% to 26% improvements in standardized test scores
In an ideal world, meeting LEED Silver standards would result in the predicted energy, water and other efficiencies. But that is not always the case. Many factors contribute to efficiency, including construction, operations and maintenance. Further, measurement and verification of energy usage is more art than science--which schools are being compared? by what methodology? Finally, what are the overall environmental implications of the building--were fewer new resources used, for example?
Many municpalities and companies are using LEED as a shorthand for high performance building to circumvent the difficulties of determining individual targets for resource efficiency and creating long term verification plans. This is shortsighted. By creating laws which use LEED as a substitute for rigorous environmental standards, well-intentioned municpalities and companies open themselves up to the criticism of the News-Tribune critic--that we shouldn't implement (or we should rescind) green building laws because they don't create environmental efficiency.
One of the primary considerations in regulating green in whether to incorporate a third party green building standard, like LEED, National Association of Home Builders Green, Green Globes, etc. into the regulations. In addition to determining whether to include a third party standard, regulators must also consider which standard to use and whether to mandate certification. There are pros and cons to each choice which regulators concerned about crafting great green regulations should carefully consider.
1. Third Party Standard, Proprietary Standard or Hybrid?
There are three regulatory models currently being used to determine whether a project is "green". One is to reference a third party standard like LEED or Green Globes--if a project meets LEED Silver criteria, it receives a 10% tax credit. Another mechanism is to create proprietary green criteria--setting out targets for energy efficiency, water usage, etc. Finally some government entities, like Boston, use a hybrid model, tacking on specific green targets on top of a third party rating system.
The third party rating system is easy and inexpensive, but gives local regulators the least control. What if the third party sets a requriement which is illegal or preempted? What if the third party sets a requirement which is inappropriate or impossible for your local conditions?
The proprietary system requires the most in house expertise. The regulators in charge of setting the green targets must understand sustainability and legal drafting very well to make this work. Also, the system must be updated to keep pace with the rapidly changing innovations in the green building industry.
The hybrid model works well to include local considerations into the green criteria, but does not solve the issue of lack of control over the rating system.
2. Which Third Party standard?
The Leadership in Energy and Environmental Design (LEED) rating systems from the US Green Building Council, a non-profit organization, is the most common rating system incorporated into green regulations. Energy Star, a government sponsored system, is also common.
Some regulations, in an attempt to be neutral, state that projects need to meet LEED "or equivalent" standard. Which standard is equivalent to LEED may be difficult to determine. NAHB Green applies to residential projects only, and Green Globes, while licensed to a non-profit organization, is owned by Jones Lang Lasalle, a real estate money management and services firm. According to their website:
ECD Energy and Environment Canada, which developed the Green Globes™ system and licenses it exclusively to the GBI in the United States, has been acquired by international real estate money management and services firm, Jones Lang LaSalle (JLL). Under the terms of the acquisition, the GBI\'s licenses—both for the New Construction tool and the module for Continual Improvement of Existing Buildings—will simply transfer to JLL.
3. Certification or no?
Finally, local governments need to consider whether certification as "green" by a third party is a requirement of the regulatory scheme. For example, many municipalities make access to tax credits contingent upon acheiving LEED certification. For voluntary financial incentives, this is not as big of a legal pitfall, although the monetary and transaction costs association with certification may reduce the number of green projects being undertaken. However, mandating certification by a private third party could run into legal hot water. For example, the USGBC is under no legal obligation to certify buildings within a specified period of time, or at all. If the developer could not get a certificate of occupancy without the certification, the developer might sue the city. Municipalities have gotten around this by having projects submit third party rating system checklists for review by building officials, without requiring certification. This requires adequate capacity for understanding the green building criteria within the relevant government entities.
The USGBC membership approved the new version to the LEED rating system for high performance (“green”) buildings on November 18, 2008--LEED 2009. The rollout of LEED 2009 has been many months in the making, being originally released for comment in the spring, and for second public comment in August. The documentation for LEED 2009 is voluminous, comprising several .zip files available here.
The basic changes are as follows:
- Credit “Harmonization and Alignment”—In short, all of the LEED Rating Systems will have common prerequisites and credits so that there are fewer conflicting components across rating systems. The Credit Interpretation Rulings have been similarly harmonized.
- Predictable Development Cycle—LEED will be updated on a set schedule. Next time is in 2011.
- Credit Weighting—A “scientific” tool was used to reweight the credits in the LEED system based on a life-cycle analysis. Now, the total number of points has increased from 69 to 100. Certified requires 40 points, Silver 50, Gold 60, Platinum 80. A breakdown of each category is as follows:
Energy & Atmosphere
Materials & Resources
Indoor Environmental Quality
The following notable changes were made to specific credits:
- SS Credit 2: Development Density & Community Connectivity
- Credit 2 went from being worth 1 point to being worth 5 points
- If the project is mixed use, it may be considered one of the ten basic services that are required to be located within ½ mile, as long as the service is open to the public.
- SS Credit 4.1: Alternative Transportation: Public Transportation Access
- Credit 4.1 went from being worth 1 point to being worth 6 points
- Walking distance is specified
- SS Credit 4.3: Alternative Transportation: Low Emitting & Fuel Efficient Vehicles
- Credit 4.3 went from being worth 1 point to being worth 3 points
- Discounted parking is available as an alternative to preferred parking for fuel efficient vehicles
- Vehicle sharing is a new option
- SS Credit 4.4: Alternative Transportation: Parking Capacity
- Credit 4.4 went from being worth 1 point to being worth 2 points
- Discounted parking is available as an alternative to preferred parking for carpool/vanpool vehicles
- An alternative track for mixed use buildings is specified
- WE Prerequisite 1: Water Use Reduction: 20% Reduction
- 20% reduction in water use is now mandatory
- WE Credit 1.1: Water Efficient Landscaping: Reduce by 50%
- Credit 1.1 went from 1 point to 2 points
- Groundwater seepage is added as an alternative strategy
- WE Credit 1.2: Water Efficient Landscaping: No Potable Water Use or No Irrigation
- Credit 1.2 went from 1 point to 2 points
- WE Credit 2: Innovative Wastewater Technologies
- Credit 2 went from 1 point to 2 points
- WE Credit 3: Water Use Reduction
- Credit 3 is now worth 2-4 points for a 30-40% reduction in water usage
- EA Prerequisite 2: Minimum Energy Performance
- Specifies new compliance paths, including demonstrating a 10% improvement for new buildings or a 5% improvement for existing building renovations in the proposed building performance rating compared to the baseline building performance rating per ASHRAE/IESNA Standard 90.1-2007
- EA Credit 1: Optimize Energy Performance
- Credit 1 is now worth 1–19 Points (from 1-10 points in LEED 2.2)
- 12% enhancement for new buildings is now the minimum, up from 10.5%
- EA Credit 2: On-Site Renewable Energy
- Credit 2 is now worth 1-7 points (from 1-3 points in LEED 2.2)
- EA Credit 3: Enhanced Commissioning
- Credit 3 went from 1 point to 2 points
- EA Credit 4: Enhanced Refrigerant Management
- Credit 4 went from 1 point to 2 points
- EA Credit 5: Measurement & Verification
- Credit 5 went from 1 point to 3 points
- EA Credit 6: Green Power
- Credit 6 went from 1 point to 2 points
- MR Credit 1.1: Building Reuse: Maintain Existing Walls, Floors & Roof
- Credit 1.1 went from 1 point to a range of 1-3 points for preserving 55%-95% of building components
- EQ Prerequisite 1: Minimum IAQ Performance
- Requirement is now ASHRAE 62.1-2007
LEED 2009 has attempted to fix one of my major criticisms, that LEED does nothing to prevent “green sprawl”—green buildings built on unsustainable sites—first voiced here. Although there is still nothing to prevent a “green” big box store surrounded by acres of parking lot on the urban periphery from being LEED certified, the increases in points to the Sustainable Sites credits are an attempt to give more weight in the LEED system to green buildings built in mixed-use community settings linked by public transit.
By: Margaret McInerney
As the green building market increases, a growing number of states, cities and municipalities have passed green building legislation. The level of enforcement and certification varies greatly, but most green building legislation references a green building rating system. The two most common green building rating systems in the United States are the Leadership in Energy and Environmental Design (LEED) Green Building Rating SystemTM from United States Green Building CouncilTM (USGBC) and the Green GlobesTM rating system from the Green Building InitiativeTM (GBI).
Both rating systems aim to improve the built environment and emphasize design and construction practices that reduce energy consumption and water use, improve indoor air quality and minimize the impact on the natural environment. These rating systems have many similarities but a few key differences. Both LEED and Green Globes rating systems are structured similarly by awarding four levels of certification and focusing on common aspects of green building design. The LEED rating system is more expensive, but has a more balanced and comprehensive structure. On the other hand, Green Globes is user-friendly and emphasizes unique green building practices. It does not, however, necessarily demand the best green building practices.
Green building policy leaders argue over the extent of these differences when determining the appropriate rating system to reference in green building legislation. There was a recent budget debate in Virginia over whether the Green Globes rating systems should be referenced as an acceptable green building rating system in addition to the LEED rating system.
It should be noted the comparisons in this article consider USGBC's LEED for New Construction version 2.2 (LEED-NCv.2.2) rating system and GBI's Commercial Green Building Green Globes v.1 rating system. A new version of the LEED rating system (LEED 2009 or LEED v.3) was released for public comment in May 2008. The requirements of the LEED 2009 rating system are not considered in this article unless noted.
Brief History of Green Building Rating Systems
The first environmental certification system was created in 1990 in the United Kingdom, called the Building Research Establishment Environmental Assessment Method (BREEAM). In 1998, the USGBC introduced the LEED green building rating system, based substantially on the BREEAM rating system. The Green Globes rating system was adapted from the Canadian version of BREEAM and was released by the Green Building Initiative in 2005. There are many other available rating systems worldwide. However, LEED and Green Globes are the most common in the United States.
Today, USGBC has rating systems for new construction, existing buildings, core and shell, commercial interiors, homes, schools, retail, healthcare and neighborhood development. GBI has a rating system for commercial buildings which includes new construction buildings and existing buildings. In addition, GBI partners with the National Association of Home Builders to promote green homes.
LEED and Green Globes Similarities
The LEED and Green Globes rating systems are very similar in structure. Both systems have four levels of achievement. LEED projects can achieve the following four certifications (1) certified, (2) silver, (3) gold or (4) platinum. Similarly, Green Globes projects can achieve either 1, 2, 3, or 4 globes. Both LEED and Green Globes share a common set of green building design practices. There are six focus areas for LEED and seven for Green Globes, but the focus areas are similar in many respects as shown below.
Sustainable sites (14 Points, 20%)
Water efficiency (5 Pts, 7%)
Energy and atmosphere (17 Pts, 25%)
Materials and resources (13 Pts, 19%)
Indoor environmental quality (15 Pts, 22%)
Innovation and Design (5 Pts, 7%)
GREEN GLOBES v.1 
Site (115 Pts, 11.5%)
Water (100 Pts, 10%)
Energy (360 Pts, 36%)
Resources (100 Pts, 10%)
Indoor environment (200 Pts, 20%)
Emissions, effluents and other impacts (75 Pts, 7.5%)
Project management (50 Pts, 5%)
The United States Green Building Council, www.usgbc.org
The Green Building Initiative, www.thegbi.org
Both LEED and Green Globes place an emphasis on energy use. Of the sixty-nine allowable points for LEED, twenty-five percent can be achieved for advanced energy practices and thirty-six percent of the one thousand allowable points for Green Globes can be achieved in the energy category. The common energy criteria for LEED and Green Globes are building energy consumption, proper installation of energy efficient technologies, and on-site renewable energy resources.
The LEED rating system has a balanced point distribution, with four out of the six categories contributing about twenty to twenty-five percent of the potential points. While Green Globes emphasizes energy (over a third of the potential points), site and material resources only account for approximately ten percent of the rating system. This is a potential weakness in the Green Globes system. While reducing a building's energy consumption is very important, a certified green building should not be constructed without significant consideration to its site and surrounding area.
LEED and Green Globes Differences
The two main criticisms of early versions of LEED were that it was too complex and too expensive. When USGBC first introduced the LEED rating system, the application for certification was long and complicated. All certification forms had to be submitted by mail. This was a contrast to Green Globes's user-friendly online certification process that any building team member could complete. The newer versions of the LEED rating system are online; however, the rating system is still complicated and each building team member is responsible for different documentation. LEED registration and certification are still more expensive than Green Globes. LEED registration costs approximately $900-$3000 and certification costs approximately $1,875 to $20,000. Green Globes offers a preliminary self-assessment for $500 dollars and the certification is around $3,000-$6,000.
Another criticism of the LEED rating system is that LEED-NCv2.2 does not address life-cycle analysis. Life cycle analysis (LCA) assesses the complete impact of a building on the environment. LCA analyzes a building's construction materials from pre-manufacturing to post-consumption. For example, the LCA of a building's insulation would consider the manufacturer's location, the resources needed to make the insulation and the disposal/recycling of the insulation when the building is torn down. In the current LEED rating system two buildings could achieve a sliver certification, but have very different impacts on the environment when considering life cycle analysis. USGBC has recognized this deficiency and addresses LCA in its latest rating system, LEED 2009. Green Globes incorporates a life-cycle analysis in its current rating system.
The main criticism of Green Globes is that it does not require a minimum performance level. Therefore it is relatively easy to attain the one globe certification level (350 points out of 1000 points). In contrast, LEED requires minimum performance levels in energy use, erosion control, and indoor air quality. For example, LEED requires that all certified projects create an Erosion and Sedimentation Control Plan. Since this plan is required it does not earn any certification points. However, Green Globes awards nine points for a similar erosion control plan. Green Globes does award points for specific best practices that are unique to its rating systems such as, integrating pest management, composting organic waste, monitoring carbon monoxide, and maintaining acoustic comfort.
Another significant difference between the two rating systems is their energy performance measurements. Most LEED certified projects measure energy performance against the ASHRAE/IESNA Standard 90.1-2004 which sets a baseline for building energy performance. LEED points are awarded if the building reduces energy consumption 20% to 60% compared to the standard's baseline. However, Green Globes projects are awarded points for scores of 75 or better from the Environmental Protection Agency (EPA) Energy Performance Rating. EPA's rating system compares the project to other similar buildings nationwide. For example, a score of 75 in the EPA Energy Performance Rating system means that the project performs better than 75% of the buildings in the U.S.
Builders have different views which rating system most effectively measures energy performance. The ASHRAE 90.1 standard is the industry accepted standard for building performance. Based on performance modeling, LEED certified buildings save approximately 25-35% on average compared to the ASHRAE 90.1 baseline standard. However, there is still a discrepancy between predicted-modeled energy performance and actual-design energy performance. While some buildings perform better than modeled a significant number perform worse. A number of LEED certified buildings do not meet the Green Globes standard of 75 from the EPA Energy Performance Rating system. In contrast, the EPA Energy Performance Rating system only awards certification to the top twenty-five percent of buildings and does not set a minimum performance level or a baseline for improvement. By using the EPA Energy Performance Rating system, Green Globes is not providing incentives to improve the performance of buildings each year.
The USGBC's LEED rating system and the GBI's Green Globes rating system have some differences. However, they share a common core of green building design practices. Both rating systems offer unique benefits and promote good building practices. Referencing the LEED rating system in government legislation will ensure minimum energy performance, good construction practices, reasonable indoor air quality, and basic building commissioning. However, for legislation to completely disregard the Green Globes rating system would ignore a number of good building practices, such as using the EPA Energy Star Performance rating system and having a user-friendly, less expensive incentive for building green. Governments should adopt strong green building legislation that encourages the best green building practices and it may be premature to limit green building certification to only one rating system.
Margaret McInerney is a LEED® Accredited Profession and is a graduate of the University of Virginia School of Engineering and Applied Science. She currently is a Senior Energy Consultant at Navigant Consulting Inc. in Washington, DC. The views expressed in this article are those of the author only and not those of any other company or organization.