Comments on: Do Third Parties Have Standing to Initiate LEED 2009 Decertification Proceedings?

By: USGBC: No Such Thing as LEED Decertification? | Green Real Estate Law Journal

Wed, 24 Mar 2010 02:45:31 +0000

[...] far as decertification is concerned, USGBC and GBCI have clearly reserved the right to revoke certification from projects [...]

By: Green Building : Jetson Green

Green Building : Jetson Green — Mon, 13 Jul 2009 18:44:27 +0000

The Concept of LEED De-certification…

LEED Version 3 has some new aspects, and the green building community is trying to understand the ins and outs. One aspect has been talked about strenuously in the past……

By: Stephen Del Percio

Stephen Del Percio — Fri, 10 Jul 2009 15:08:58 +0000

If buildings that are certified before they start performing are not, in fact, performing, why are we certifying them in the first place? Isn’t this a strong argument in favor of a different way of rating buildings that’s based on actual performance once the building is operational?

By: Michael English, PE, CCP

Michael English, PE, CCP — Fri, 10 Jul 2009 14:25:44 +0000

I am a huge fan of decertifying a building when appropriate. On multiple occasions, my company is called in after the fact to “fix” a building that has already been LEED certified. The owners of these buildings are trying to do their part by investing in green buildings. The sad part is that some of these buildings don’t function properly due to poor design, coordination, construction and/or commissioning. I’m all for doing whatever it takes to uphold the value of these certifications and making certain they reflect true building performance. This is crucial to maintaining integrity within our industry.

By: Ujjval Vyas, Ph.D., J.D.

Ujjval Vyas, Ph.D., J.D. — Fri, 10 Jul 2009 13:49:25 +0000

Stephen,

You are right to look to the exact language (though this version of the poicy manual does not seem to be final yet since the definitions of the key terms are yet to be produced). I am not suggesting that a third party would have a right to force the GBCI/USGBC to decertify, only that any entity now having some type of knowledge of a failure of performance or compliance with the various requirements may bring to the GBCI/USGBC this information in aniticipation of some type fo review being done to see if the information provided could lead to a de-cerrtification. As you suggest and Ed Genticore also indicates, there are many involved questions here regarding the scope, process and enforcement mechanisms that the GBCI/USGBC may run up against. This is especially the case if the LEED certification is required for compliance with local, state or federal legislative or regulatory edicts. This is a very strange tangled web.

A very close look at the MPR language as currently established poses serious issues for A/E insurers, sureties, contrators and others on the construction project as well as potential impications for land development. I will be producing a detailed review of the new v.3 and the MPRs in an upcoming issue of Construction Lawyer where I certainly hope to use (and properly cite) the thought that might be developed on this blog.

The simple question remains for me: when and how will a project get de-certified? If this is another of the black box operations that the USGBC seems to prefer, then it will be problematic both as an aid to “market transformation” and in its legal implications. In fact, I would argue that any time a de-certification occurs, it will be followed by litigation since this would affect everything from building asset value to claims of non-compliance with codes, to signinficant marketing damage to the owner, etc., etc. The de-certification will by dint of that alone provide the basis for an assumption that so-called experts in the green design of the building have found a fault with one or more of the parties. Given this it seems logical for all those negatively affected to seek redress.

If the USGBC never actually de-certifies, then they become a paper tiger. The first de-certifications will be fraught with difficulty.

By: Michael Gibbons, Esq.

Michael Gibbons, Esq. — Fri, 10 Jul 2009 13:49:24 +0000

This is obviously a controversial issue. I believe the main purpose behind the MPR at issue is the USGBC’s laudable desire to increase the available data on building performance as it relates to energy consumption. LEED is frequently and justifiably criticized as certifying design and not performance (in contrast to Energy Star which certifies performance). USGBC recognizes that ultimately energy modeling must yield to actual building performance data.
I believe that USGBC will not be making waves with individual non-compliant building owners so long as it is receiving sufficient data around the country to allow meaningful engineering studies of distinct types of buildings. If there is pervasive non-compliance to the point that meaningful data is not available, USGBC will be forced to choose between bad PR and inadequate data to advance the mission.

By: Stephen Del Percio

Stephen Del Percio — Fri, 10 Jul 2009 13:08:51 +0000

Interesting thoughts on the MPR Interpretation Unit, Jeff. I can’t imagine that the owner will pay for any MPR compliance reviews (though if it does it will likely seek reimbursement from the culpable party or parties).

I also agree that decertification, from the USGBC’s perspective, is a PR nightmare. I think that’s why the third-party question is so critical- if USGBC/GBCI is compelled to investigate though, the policing mechanism becomes much stronger.

By: Jeff Howell, Esq.

Jeff Howell, Esq. — Fri, 10 Jul 2009 04:30:50 +0000

Stephen:

The MPR language certainly appears to give the USGBC/GBCI discretion on how to handle a non-compliance situation. It does not seem advantageous from a PR perspective to pursue a hardline approach leading to de-certification, although the organization may have an ethical obligation to at least investigate.

I sense the formation of an MPR Interpretation unit that will review the issues raised and make a determination regarding de-certification. Who would pay the anticipated fee for this review since any third party may call MPR compliance into question?

Jeff Howell