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.