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

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:

1. Allow assessors and auditors to independently verify the criteria and measurement metrics of the system;
2. 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;
3. Be nationally recognized within the building industry;
4. Be subject to periodic evaluation and assessment of the environmental and energy benefits that result under the rating system; and 
5. 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 or Green Globes 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.  

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Yesterday, Judge Sands dismissed Henry Gifford's suit against the USGBC.  A copy of the Order is available here.  In a major win for the USGBC, Judge Sands dismissed Gifford, et al's Federal claims with prejudice, which means they cannot be brought again, Because the Federal claims were dismissed, the Judge also dismissed Gifford, et al's state claims for lack of jurisdiction. 

Particularly gratifying for me is that Judge Sands dismissed the case for exactly the reason I anticipated in my prior posts on the case that the plaintiff in this case lacked standing to bring the case.  The posts are available here and here.

In summary:

To the best of my research, Mr. Gifford is not a LEED AP, and indeed, from his website and publications, he has outspokenly denounced the USGBC and LEED.  Mr. Gifford does not appear to own any property certified LEED.  In short--the USGBC's actions have not harmed him or his career, if anything, has been enhanced by the USGBC's position.

Similarly Judge Sands held:

With the exception of Gifford,  each Plaintiff designs and consults on specific elements of individual buildings, including heating and cooling systems, moisture and mold remediation, and architectural design. Plaintiffs do not allege that LEED certified buildings do not require such services or that those services must be provided by a LEED-accredited professional in order to attain certification. Because there is no requirement that a builder hire LEED-accredited professionals at any level, let alone every level, to attain LEED certification, it is not plausible that each customer who opts for LEED certification is a customer lost to Plaintiffs.

With respect to Gifford's Lanham Act "False Advertising" claim, I wrote:

In alleging a violation of the Lanham Act, the Federal act prohibiting false advertising, the Amended Complaint states: USGBC's misrepresentations have an will continue to deceive consumers, voters, taxpayers, developers, municipalities and legislators at the local, state and federal levels. However, fraud requires "reasonable reliance" on the false statements. The difficulty here is that, although more plaintiffs have been added, they are still not plaintiffs that were "duped" by the USGBC's representations. Judge Sands concluded that the USGBC and Gifford, et al are not competitors:

 Judge Sands similarly held that Gifford, et al cannot prove reliance:

Even if Plaintiffs were to amend the [First Amended Complaint]  to include the proffered allegation that a single developer, Steve Bluestone, chose a LEED certified consultant rather than Gifford, Plaintiffs would not establish the required causal nexus: that Bluestone did so in reliance on the alleged false statement contained in a 2008 press release.

This order may not be the end of the Gifford v. USGBC story.  Gifford may appeal, and he retains the opportunity to file his state claims in New York state court.  Moreover, since the Judge did not resolve the merits of the claims, the debate over whether LEED buildings save energy is likely to rage on.

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On Friday, the USGBC responded to Henry Gifford's amended complaint with a Motion To Dismiss for failure to state a legal claim (Federal Rule of Civil Procedure 12(b)(6)) and for lack of subject matter jurisdiction (Federal Rule of Civil Procedure 12(b)(1)).

In essence, the USGBC's response has two prongs: 1) the Plaintiffs lack standing, as I predicted here; and 2) that the Plaintiffs could not demonstrate that they had been harmed by the USGBC's allegedly illegal conduct. Stephen Del Percio does a nice job of outlining the standing arguments here. 

In the back of the Memorandum of Law is an interesting discussion of the USGBC's marketing.  In the context of arguing that the New York Consumer Fraud Statute does not apply, the USGBC argues:

USGBC's marketing--which is before this Court on this motion--is directed at businesses and professionals.  The website, which is how USGBC advertises, defines the audience for USGBC's marketing.  LEED users are 'architects, real estate professionals, facility managers engineers, interior designers, landscape architects, construction managers, lenders and government officials...

I think this is a difficult argument, and not one with a lot of factual merit. 

The USGBC website has a link to a website entitled:

U.S. Green Building Council's Green Home Guide Connecting you to ideas, advice and green home professionals.

The purpose of the site is clearly to communicate information about LEED and green building directly to consumer homeowners. The Green Home Guide website offers a tool for homeowners to become acquainted with the LEED for Homes system:

LEED FOR HOMES SCORING TOOL
It's FREE.NEW – The LEED for Homes Scoring Tool

Q: How close is your project to earning
LEED for Homes certification?

A: Probably much closer than you think.

As the building industry evolves, more residential projects already include sustainable features that contribute to certification. The LEED for Homes Scoring Tool will help you assess your project. By answering a few simple questions, you’ll not only learn just how close you are to earning certification, but also various steps you might take to get there. Plus you’ll gain important insight on the LEED for Homes rating system.
 

The USGBC even publishes a brochure for LEED® for Homes™ FAQ for Homeowners available here.

So, it's pretty clear that the USGBC is marketing directly to consumers, contrary to the Memorandum of Law in support of the USGBC's Motion to Dismiss.

The worst part is that there was no need for the USGBC to make this factually unsupported argument. Even if the USGBC advertises to consumers, the consumers that might have been harmed by the advertisement are not included amongst the plaintiffs, and are not represented by the factual misstatements alleged in the Amended Complaint. Making factually unsupported arguments may weaken the punch of the USGBC's clearer grounds for dismissal, and provide a toe hold for the Plaintiffs to plant seeds of doubt about the rest of the USGBC's arguments.

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NOTE: The opinions expressed in this post are entirely those of the author, and do not represent the position of the USGBC or the Delaware Valley Green Building Council.

Yesterday, I discussed the fact that Henry Gifford filed an Amended Complaint in his suit against the USGBC for fraudulently claiming that LEED buildings save energy.  The post, as well as the Amended Complaint are available here. I also noted that Mr. Gifford and the other plaintiffs probably do not have standing to bring the suit because they were not harmed by the allegedly fraudulent advertising of the LEED system. 

Mr. Gifford alleges that the people and entities that have been and will be harmed include:

USGBC's misrepresentations have and will continue to deceive consumers and voters, taxpayers, developers, municipalities, and legislators at the local, state and federal levels.

Amended Complaint at Paragraph 57.

This brings up critical questions about the legitimacy of Mr. Gifford's claims:

If developers were really experiencing energy performance vastly out of proportion to their expectations, wouldn't there be suits by developers against their design professionals and/or the USGBC? 

If the Federal government, with one of the largest portfolios of LEED buildings, were really disappointed by their performance, wouldn't they stop using the system? 

If design professionals were spending money to obtain worthless credentials, then wouldn't architects (whose profession is down something like 50%) be lining up to demand their money back? 

If the problems that Gifford alleges are so fundamental, why is it that Henry Gifford and a few other plaintiffs who have rejected the LEED paradigm seem to be the only ones suing? 

The concept of abstract “rightness” does not play a very large role in the American judicial system.  With few exceptions, only a person harmed can bring suit to right the wrong done to him or her. So, even if you or I see something terribly “wrong” happening, if we are not harmed by it, we have no standing to bring suit. 

For example, a man stops by a street hustler and plays a shell game.  You are standing on the corner.  You see the street hustler take his money and bilk him.  The man sees it too, but shrugs his shoulders and walks away.  You cannot sue to get the guy’s money back—only he can (or press charges, etc). 

If there are no victims of the USGBC's "fraud", then Mr. Gifford's is really just a gadfly who is calling attention to himself by suing the USGBC.  If there is fraud, then we should see a rash of suits by plaintiffs who have actually been harmed--consumers and voters, taxpayers, developers, municipalities, and legislators at the local, state and federal levels.

NOTE: The opinions expressed in this post are entirely those of the author, and do not represent the position of the USGBC or the Delaware Valley Green Building Council.

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NOTE: The opinions expressed in this post are entirely those of the author, and do not represent the position of the USGBC or the Delaware Valley Green Building Council.

In October 2010, Henry Gifford filed a lawsuit against the United States Green Building Council alleging, essentially, that the USGBC had fraudulently represented the performance of LEED buildings, and doctored study results to support their claim that LEED buildings performed more efficiently than standard construction. Yesterday, Henry Gifford filed an amended complaint (you can download the amended complaint here). 

The original suit was filed as a class action, and included claims against the USGBC for illegal monopolization and false advertising.  I posted that these issues would probably not pass legal muster.  The class action could not be certified (see my post here) and the suit did not establish that the USGBC was a monopoly (see my post here).

 There are several changes to the new complaint:

1. It has been boiled down to essentially a False Advertising and Consumer Fraud Act case under Federal and New York State law.
2. It is not a class action.
3. The monopolization claim has been eliminated.
4. Several new plaintiffs have been added, including an architect, an engineer, and a "speciali[ist] in moisture barrier design and mold remediation."

The essential claims as alleged in the factual section of the Amended Complaint are that the USGBC has misrepresented the energy efficiency of LEED buildings, and that the LEED certification is not a verification of the actual energy performance of the building. 

From a legal perspective, I believe that the Amended Complaint is still riddled with a fatal flaw--the plaintiffs probably do not have standing. 

In alleging a violation of the Lanham Act, the Federal act prohibiting false advertising, the Amended Complaint states:

USGBC's misrepresentations have an will continue to deceive consumers, voters, taxpayers, developers, municipalities and legislators at the local, state and federal levels.

However, fraud requires "reasonable reliance" on the false statements. The difficulty here is that, although more plaintiffs have been added, they are still not plaintiffs that were "duped" by the USGBC's representations.  The claims alleged by Gifford are really claims rightfully brought by people who have been harmed by spending too much on LEED buildings, or LEED accreditation.  In essence, Gifford has not eliminated the standing problem that doomed his class action. 

The Amended Complaint is also rife with hyperbole, which diminishes its credibility.  For example, with respect to a study on the performance of LEED buildings:

The self-selection bias is so obvious, it's about as reliable as using breathalyzer tests of drivers who volunteer to be tested as a gauge of how many people drink and drive.

See Amended Complaint at Paragraph 32(b).

Despite the fact that Gifford's lawsuit is probably flawed by reason of lack of standing, as revised the Amended Complaint may be enough to survive a Motion to Dismiss.  In that case, discovery will proceed, which will open the internal communications of the USGBC to public scrutiny. 

As with the kerfuffle over the emails among scientists studying global warming, this may muddy the waters and slow the progress of green building, even if the claims against the USGBC are eventually proven to be unfounded.   

NOTE: The opinions expressed in this post are entirely those of the author, and do not represent the position of the USGBC or the Delaware Valley Green Building Council.

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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): 

1. CALGREEN

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. 

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This Thursday I will be speaking at the Greenbuild Legal Forum about upcoming trends in green building law and policy with my fellow bloggers Chris Cheatham of Green Building Law Update and Steve Del Percio of Green Real Estate Law Journal. 

The panel will be held:

Thursday, November 18, 2010 – 8:30am-11:30am
Room 193AB, McCormick Place West
 

I will be covering lots of great substantive topics, with a focus on upcoming regulatory issues, including:

• Stimulus
• Impact of the 2010 Mid-term elections
• Leaked White House documents on the future of renewable energy/energy efficiency loan guarantees
• Ballot initatives
• Utility regulation
• PACE/DOE Home Energy Pilot Loan Guarantees

I will also give you a behind-the-scenes glimpse into my life as a green law blogger. Join us for a discussion that promises to be both informative and controversial. 

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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.

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NOTE: The opinions expressed in this post are entirely those of the author, and do not represent the position of the USGBC or the Delaware Valley Green Building Council.

As almost anyone in the green community knows, last week LEED Critic Henry Gifford sued the USGBC for, essentially, a few different flavors of fraud.  Mr. Gifford sued the USGBC as an alleged representative of a class of people who had been duped by the USGBC.  I posted last week that I did not think that the class action would survive class certification.  In that post, I provided a 30-second manager version of Advanced Civil Procedure.  Today, it is Anti-Trust 101.

 The causes of action Mr. Gifford brought against the USGBC are the following:

1. Monopolization through Fraud--Sherman Anti-Trust Act 15 USC Sec. 2
2. Unfair Competition--Lanham Act 15 U.S.C. Sec. 1125(a)(1)(B)
3. Deceptive Trade Practices--New York General Business Law Sec. 349 (a) and (h)
4. False Advertising--New York State General Business Law Sec. 350-a(1) and Sec. 350-a(3)
5. Wire Fraud--RICO--18 USC Sec. 1962(C)
6. Unjust Enrichment

[To avoid confusion, I will note here that the Complaint has two Fourth Causes Of Action.]

I will address the various causes of action in different posts this week, starting with Monopolization.

The Sherman Act  is intended to prevent the combination of entities that could potentially harm competition, such as monopolies or cartels.

Section 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 2, makes it an offense for any person to “monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States . . . .”

To prove monoplization, the plaintiff must show  “(1) the possession of monopoly power in the
relevant market and (2) the willful acquisition or maintenance of that power as distinguished
from growth or development as a consequence of a superior product, business acumen, or
historic accident.” United States v. Grinnell Corp., 384 U.S. 563, 570-71 (1966).

First, it is not entirely clear what market  the plaintiffs are alleging USGBC has a monopoly.  

A monopoly is a form of market structure where only one or very few companies dominate the total sales of a particular product or service. Monopoly power is defined as the ability to control price or to exclude competitors from the marketplace. The courts look to several criteria in determining market power but primarily focus on market share (the company's fractional share of the total relevant product and geographic market). A market share greater than 75 percent indicates monopoly power, a share less than 50 percent does not, and shares between 50 and 75 percent are inconclusive in and of themselves. In focusing on market shares, courts will include not only products that are exactly the same but also those that may be substituted for the company's product based on price, quality, and adaptability for other purposes. For example, an oat-based, round-shaped breakfast cereal may be considered a substitutable product for a rice-based, square-shaped breakfast cereal, or possibly even a granola breakfast bar.

Green Globes, Energy Star, Passive Haus, BREEM, and others exist in the realm of green building evaluation, but LEED certainly has the dominant market share.  But is this really the market? If building evaluation in general is the market, than surely the International Construction Code, which is the model code for most states and municipalities, has a broader market share and usage than LEED.  If energy performance is the market, then the ASHRAE codes which provide standards for energy performance and are used almost universally have a far more dominant market share.

 If professional certification of builders and design professionals is the market, than certifying to become a Registered Architect or a Professional Engineer must also compete with becoming a LEED accredited professional. 

Second, even assuming that LEED has a "monopoly" on some undefined market, Mr. Gifford must prove specific intent to acquire or maintain the monopoly position.  Mr. Gifford alleges a significant number of bad acts on the part of the USGBC, mostly centering around the USGBC's alleged misrepresentation of the energy performance of LEED buildings.  In the recitation of the claim, Mr. Gifford states that misrepresentation of energy performance of LEED buildings "is false and intended to mislead the consumer and monopolize the market for energy-efficient building design." 

The problem is, Mr. Gifford does not demonstrate how this false representation is conspiratorial or predatory.  The USGBC's actions, even if fraudulent, are not  intentionally prohibiting other rating systems from coming into existence or preventing other systems from proving they result in more energy efficient buildings. 

 So, Mr. Gifford's Anti-Trust Claim should go directly to jail--what a court may actually do is another matter entirely.

NOTE: The opinions expressed in this post are entirely those of the author, and do not represent the position of the USGBC or the Delaware Valley Green Building Council.

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I don’t know when I decided to become a “green building” lawyer. I saw the field was coming, almost four years ago. Green building on the rise, construction disputes emerge in almost any building project, why wouldn’t green building simply exacerbate an already fraught collaboration? My husband is an architect, so I knew about LEED accreditation, and it couldn’t possibly be as bad as the Bar Exam, so I took the test. Passed, no problem. Not nearly as hard as the Bar Exam.

I determined to give a talk at my local Whole Foods about green building. “You can’t do that,” my husband said, “You don’t know anything about green buildings.” He was right, of course, but why let that stop me?

On my “to do” list for 2007 was “start a blog.” Months went by, no blog. As I got more and more furious at myself for procrastination, one day I just started a Blogger blog. Creatively, I called it “Green Building Law Blog.” I put up a post or two and waited. I don’t know what I was expecting.
Then…hits. Lloyd Alter, at Treehugger, reposted one of my first blog posts, “Pink is the New Green” about insulation. BuildingGreen.TV liked a post I did on McMansion taxes, and soon we were off to the races.

In my early blogging days, I “met,” virtually of course, Steve Del Percio of Green Real Estate Law Journal. “Are you getting clients out of this?” I asked him. “No,” he reported. And yet, we kept doing it.

I was in on the first Twitter wave. By then Chris Cheatham of Green Building Law Update had joined us. At this point, a year or so in, I decided to move from a Blogger platform to a LexBlog custom blog.

 Chris, Steve and I competed for the green building law story of the day. Steve broke the Shaw Development v. Southern Builders case. Then I broke AHRI v. City of Albuquerque. Chris followed with Washington DC’s failed performance bond. I looked forward every day to seeing who had come up with something new, both appreciating and despairing when my doppelgangers broke something first.

Others joined us in the “cabal”—Douglas Reiser, Scott Wolfe, Chris Hill, Tim Hughes, Matt Devries. We would comment on each others’ stories, with good natured rivalry as we tried to outdo one another with our insights on this new field. We communicated with rival blog posts and twitter conversations.

I had not met many of these people, yet we were corresponding nearly every day, my modern day Pen Pals. During the course of our correspondence, both Steve and Chris Cheatham got married and I had two children.

From 2007 to 2010, the blog grew in prominence.  I appeared on MSNBC and the Philadelphia Inquirer did a full page spread. The field grew—suits were filed and different controversies emerged.

Honors connected directly to the blog’s prominence developed in 2009. I was appointed to the USGBC’s Legal Advisory Board. Awarded one of the top 40 lawyers under 40 in Pennsylvania. And, highest of the high honors, my “Blawg” made the ABA Journal’s list of the top 100 Law Blogs for 2009. It just so happened that I found this out on the same day that my second daughter was born. Now that was a good day.

I got a call one day last year—we are doing a conference on green building law, would you like to speak?  Why not?  By now my husband had decided I knew something about green building, so the only objection I got was leaving him at home for two days with the kids.

I soon learned that most of the Green Building Law cabal would be there, as well as Stuart Kaplow, who, behind the scenes, was doing more green building law practice than the rest of us combined and Susan Dorn, General Counsel for the USGBC. In short, the best minds in the business.

When we all got together, I discovered that these people I had been virtual colleagues with for years were even better in person. Warm, outgoing, smart and, above all, good humored. If I had a case which I needed help on or a referral to another jurisdiction, I know I could refer without hesitation on any of these people.

If you had told me when I began this endeavor that it would lead me to this place, I would never have believed you. But I am so grateful to these colleagues—no, friends---who push me every day to be more diligent, search longer and try harder to be at the top of my game. It is a pleasure and an honor to work beside you, and I cannot wait to see what we will do together.
 

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I am speaking today and the Woodrow Wilson Center in Washington, DC at a forum on green jobs for women.  Although policymakers assert that government investments in green initiatives can produce 20% more jobs than traditional economic stimulus measures, women are not finding as much employment in the green sector as men.  I wrote about this issue for the first time last year, my original post is here.

The issue that I am presenting on today is the low representation of women in white-collar green jobs.  When polticians talk aboout green jobs, the focus is most often on blue-collar work--workers insulating homes or installing solar panels.  There is no doubt that women are historically underrepresented in manual labor contruction work--women account for just 3% of building trade workers.  This gender disparity is no different when electricians turn from hooking up HVAC units to hooking up solar arrays. 

But what about white collar green jobs? There are no practical barriers to entry for women to become construction or energy lawyers, to finance green projects or to create businesses that develop or market innovative green products.  Gender equity is only one of the issues here--it is new efforts in these areas which will create demand for blue-collar and white-collar workers alike, and create new revenue to reinvigorate the American economy. 

And yet women are underrepesented in these areas as well.  Women make up just 16% of the leadership of the ABA Construction Law Committee, and a lower percentage of scientists, researchers, engineers and financiers.

What to do? 

• Qualify white collar green jobs for economic incentives--this will benefit the green economy as a whole.  If there are no new businesses creating demand for people to caulk houses or build solar arrays, all the green job training in the world will be wasted. This will benefit men and women alike.
• Create targeted green training (and RE-training) programs for women in law, business, engineering and finance. Alumni groups from higher education institutions could take on this effort, and make the training available not only for their alumni, but to professionals within their geographical area.
• Create set-asides in green purchasing programs for women-owned green buisnesses, particularly in government programs and large companies going green,.
• Take on the issue--USGBC and other high profile green organizations and government entities need to make women's participation in the green economy a priority.

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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),
4.) Homes,
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.
 

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Today I am going to highlight a bunch of interesting articles that have come out lately which interest me. Some of these will become future posts, but I want to highlight them as they come out to keep my readers up to date, and give you something to read in your spare time.

1. The USGBC issued a short white paper on Greening the Codes and the compatibility of LEED with green codes.  It is very good, and makes the point that LEED and green codes work together to encourage green building. 

2. The United States Council Of Mayors passed resolutions to promote green building in cities, including encouraging the passing of a clean energy bill by Congress and the adoption of green construction codes.

3. The DOE announced $76 million in green building and energy efficiency technology grants.

So now I want to know...What are YOU reading? 

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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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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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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.

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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.
 

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Last week, the USGBC announced its list of the Top 10 Pieces of Green Building Legislation in the 111th Congress.  Top of the list were the American Recovery and Reinvestment Act, better known as the Stimulus Bill, and the American Clean Energy and Security Act, better known as Waxman Markey.  I have posted about these pieces of legislation extensively--here for Waxman-Markey posts and here for ARRA posts.  So I was interested to see what the rest of the list had to offer in terms of overall perspective on Federal regulation of green buildings:

1. It's all about incentives.

Heaven forbid that Congress should force anyone to do anything.  With the exception of Waxman-Markey, the bills selected by the USGBC are all incentive based, providing funds for energy efficiency, water savings, etc. 

2. It's not very innovative.

There are only two bills on the list which I consider to be innovative or interesting.  The Federal Personnel Training Act of 2010 (yet to be introduced) which focuses on training federal personnel to operate and maintain high performance buildings, and S. 1619, the Livable Communities Act of 2009 which seeks to establish an Interagency Council on Sustainable Communities and provides $4 billion in grants to incentivize integrated community planning and implementation of sustainable projects. I like the first bill because it recognizes the need to raise the skills of implementing federal employees to realize the benefits of high performance buildings, and I like the second because it recognizes the linkage between planning and sustainability.   

3. Building Codes are not addressed.

Waxman-Markey, and its Senate counterpart The American Clean Energy And Leadership Act, both have some provision for creating a national energy efficient building code.  The other bills, however, do not attempt to address the key policy lever of building codes to enhance sustainable construction and save resources. This is probably because of the enormous political fight involved, both in wresting control of building codes away from states and local governments, and with the private interests involved in the building industry.   

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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."

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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.

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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? 

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There has been quite a dust-up over last week's energy efficiency feasibility study by NAIOP, the Commercial Real Estate Development Association.  The study challenged the economic feasibility of developing office buildings with 30% and 50% energy efficiency targets.  Essentially, the study concluded: 

Using energy models, the report found that 30 percent and 50 percent improvements in energy efficiency over code were not financially feasible for most new, Class A office construction. Developers striving for the 30 percent target would not recoup the cost of their initial energy efficiency investments within a 10-year period, while the 50 percent target was far beyond their reach, the study said.
 

The study set off a storm of controversy, resulting in the USGBC and others to decry the methodology and conclusions of the NAIOP study. 

However, the NAIOP study highlights some very important flaws in the current analysis of green buildings. 

1. We need to stop measuring certification, and start measuring performance.  If we had good, apples-to-apples measurements of energy efficiency, water savings, indoor air quality, vehicle miles travelled by occupants and occupant satisfaction which we could compare across building types, it would be easier to deflect the misinformation being espoused by green building skeptics.

2. We need to start incorporating carbon costs. NAIOP's main argument is that achieving 30-50% energy efficiency is not cost effective.  If building carbon costs and other environmental externalities were measured as a component of the cost-benefit analysis, even a flawed study like the NAIOP would have a hard time showing that the costs outweighed the benefits.

3. We need policies which mandate measurement and verification.  In order to collect solid information about building performance over time.  To do so, public policies should incorporate energy efficiency, water savings, indoor air quality, vehicle miles travelled by occupants and occupant satisfaction reporting as components of their green building regulation. 

By effectively incorporating costs and developing solid performance measurements, we can acheive credible green building arguments (as well as improving the performance of the buildings themselves) which will give the green building movement credibility in an age of skepticism. 

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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:

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. 

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