Green Building Law Blog : Green Building Lawyer & Attorney : Shari Shapiro: Calliope Communications, LLC

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.

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GBLB spoke with Consulting engineers Lawrence G. Spielvogel, of King of Prussia, Pa., and Mark S. Lentz, of Sheboygan Falls, Wis who advised on the Northland Pines appeal, the first third party appeal of a LEED project.  Background on the Northland Pines appeal is available here.

GBLB: How did you become involved in the appeal:

Mark: Larry got involved at my request. A number of members of the Northland Pines building committee asked to visit a couple of my projects. We are doing some things that are unique in the world. Ultra high efficiency buildings and buildings utilizing entirely outside air. I was asked to come up to Eagle River [Wisconsin] to make a presentation [for the Northland Pines High School project]. When I found out the Board had engaged another engineer who was trying to steal my technology, I withdrew from the competition for the Northland Pines project in writing. In the meanwhile, I became friends with some of the Building Committee members. Some of the building committee members realized they were not getting what they anticipated [from the selected Northland Pines team], they raised a stink. When the designer threatened to sue them, they asked me to review the design to provide a defense for their decision. I realized I would need reinforcement, because being a local competitor I would look biased, so I asked Larry to come in on behalf of one of the appellants. We have worked together to review the project and to make sure the project did comply and to review the award of LEED Gold.

GBLB: When was the decision to appeal made? 

Mark: The decision to make the appeal was made when the grant of Gold was made. The USGBC ostensibly had a rigorous review process and we found out that there is no review of the plans, specifications or construction documents.

Larry: The first time the USGBC saw the specifications was when Brendan Owens [Vice President, LEED Technical Development for USGBC] asked for a set after the appeal had been filed.

Mark: I would have expected them to review of the plans, specifications or construction documents because it is impossible to verify compliance [with the ASHRAE codes] without it.

Larry: What [the USGBC] accepted was designers' certification that compliance was achieved. When the issues started to heat up at the public school board meetings, Mark and I put together a list of violations of Section 62 and Section 90 [of the ASHRAE code] before the design was even bid. Some of issues were corrected when they submitted plans for building code.

Mark: There are literally hundreds of violations with code.

Larry: One of the things Brendan Owens said was that receipt a certificate of occupancy was evidence of compliance with standard 62 and standard 90, and was incredulous that anyone would not design to those standards.

Mark: At that point, the designers were very much aware of the defects.

Larry: As was the USGBC.

GBLB: What was your goal with the appeal?

Mark: Our goal was to get the LEED plaque removed. To have that building qualify undermines everyone who is playing by the rules. It underminds their efforts and their achievements.

Larry: The message that USGBC now sends is that it is not necessary to comply at the time you get your plaque, and later, close is good enough.

Mark: And if you know that you’re not compliant, we are not going to take the plaque from you.

GBLB: How would you see the appeals process change?

Larry: It should be done by independent unbiased third parties, like [American Arbitration Association], under the rules of construction arbitration.

GBLB: What is next for the Northland Pines situation?

Mark: As far as we’re concerned, the appeal is over.  For the record, the building still does not comply with the prerequisites, or the building code.

This was never intended to be an attack on the USGBC. It was intended to hjold the designers feet to the fire

Larry: The resident appeallnts have been approached by attorneys, and they are not interested. They have had their fill of this, but should this ever come to blows, the appellants have videos and tapes of the conference calls with USGBC. 
 

GBLB: Did you expect this degree of attention when you filed the appeal? 

Larry: This has gotten a lot of attention from the legal community, but what it really needs is attention from the architecture and engineering community.

Mark: It would force the USGBC to answer some very uncomfortable questions.

Larry: The question is how qualified are the people who are certifying the buildings. Just because you have a lot of letters after your name doesn’t mean anything.

Mark: The other thing is whether the review process itself is credible. It raises doubts about every single previously accredited building..

GBLB: How could LEED process be changed to better reflect “green” buildings?

Larry: Competant review.

Mark: The construction documents themselves need to be reviewed by people who are technically competent to do so, as well as documentation reflecting the prerequisites.

Just because a building gets a Certificate of Occupancy, It doesn’t mean that the building complied with the code, just that the inspectors didn’t find any problems.

PUBLISHER'S NOTE:  The USGBC was contacted for an interview to respond.  No response was received at the time of publication.  Also, the facts and opinions expressed in this interview are those of the interviewees, and the publisher of this Blog makes no representations as to their truth or falsity.

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In the past few weeks, the Northland Pines Third Party LEED challenge has exploded, the Washington Building Industry Association sued the State of Washington to enjoin their energy code from taking effect, and a private lawsuit which could potentially turn into green litigation emerged onto the scene.  In other words, the wave of green litigation which I first predicted back in 2007 has arrived. 

What does this mean? 

1. More third party challenges--For every building project, there are naysayers.  Some will see the Northland Pines challenge as a mechanism for attacking potential development, either during the development process by threatening a challenge, or after the development is completed by filing one.   
2. Building interest group litigation mushrooming--If the BIAW challenge in Washington holds water, building interest groups nationwide will attack green building regulations where the only true path to compliance is through energy efficient HVAC equipment. 
3. Private litigation with a green tinge--As people occupy green buildings, typical construction challenges emerge.  Expect these to incorporate challenges to the "greenness" of the building.

These suits will be complex, and will involve not only knowledge of LEED and green building, but also the energy codes and other ancillary regulations implicated in these suits.  Green building law has arrived.  Is your lawyer ready? 

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The USGBC issued a statement regarding the Northland Pines dispute:
 

USGBC stands by its conclusion that the Northland Pines High School project and project team complied with all the requirements necessary to achieve LEED Gold certification. In response to a complaint, USGBC followed its certification challenge policy, which requires a thorough and technically rigorous review of the project. Given the vociferous and confrontational nature of the complaint, we further asked for two additional and separate technical reports detailing the expert professional opinions of highly regarded independent consultants. Their findings agreed with ours.

 

Anyone who has actually been through a LEED certification review knows that it is a dialogue between the project team and the reviewer. After reviewing the documentation submitted by a project team, the reviewer issues a request for more information in a “Preliminary Review”. The project team responds to any reviewer comments and resubmits. The reviewer then reassesses the project and issues a “Final Review”.

 

The process USGBC used to deal with this appeal was similar to our standard process but in addition to having the original submission and reviewing everything we normally review we also had the complaint document. There were issues in the complaint document that were not (from our independent consultant’s point of view) adequately addressed by the 2007 submission so we asked for and received additional clarifying documentation from the project team. This additional documentation answered all open questions and made it possible for USGBC and the independent consultants hired to provide their expert technical opinions to conclude that the project does in fact comply with LEED Gold requirements.

 

LEED’s intent, and USGBC’s mission, is about helping people learn about and understand how to design, build and operate better buildings. Buildings are complex systems of systems and any of the 100,000 of decisions associated with design, construction and operation can always be second-guessed. We are confident that our due diligence has been more than sufficient to put these issues to rest, and we are moving forward to focus our efforts where they do the most good -- advancing the market uptake of green buildings and communities that is at the heart of our work.
 

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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.   

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