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Contractor Leads Attack Against Nashville’s LEED Legislation

Some interesting legislative developments are taking place right now in Nashville, Tennessee that implicate many of the green building policy issues that we’ve been wrestling with over the past few months here at GRELJ. Since 2007, metropolitan Nashville has required most new and major public projects to larger than 5000 square feet or costing more than $2 million to earn LEED certification. Recently, city councilman Duane Dominy of suburban Antioch introduced legislation that would “allow the Metropolitan Government to pursue an alternative sustainable development design standard to LEED certification based upon pre-determined energy reduction and efficiencies. If Metro chose to pursue an alternative to LEED, the contractor would be required to warrant for a three-year period that the annual energy use for the building will be less than similar buildings” or will earn a minimum score under EPA’s Energy Star program.

The reductions are staggered between 2010 and 2013 and beyond (10 percent through 25 percent, though the benchmark against which those reductions are measured is not set forth in the pending bill); Energy Star ratings would increase from 55 in 2010 to 75 in 2013 and beyond. An independent consultant would determine whether the required energy reduction is met; if not, the contractor (or, interestingly, another entity warranting the energy use) will be responsible for reimbursing the city for the cost of the excess energy use. The amendment is BL2009-503; a vote is slated for later this month. “This would allow an alternative that focuses on the performance of the building, not on the process of how you got to that performance,” Dominy told the Tennessean.

The genesis for the amendment is a 16-classroom addition to Antioch’s middle school, which uses an HVAC and building envelope system that does not qualify for credits under LEED (though it’s unclear exactly why this is the case). The contractor which designed and installed the system- Energy Systems, Inc. of Cookeville, Tennessee- is owned by Bob Southerlan, a former aerospace engineer who is “worried about being knocked out of the Metro construction market.”

I think that this is a critical battle to watch as it may suggest that local governments are coming to view LEED as something less than the mark of building performance; Mr. Dominy’s thoughts about process versus performance are particularly noteworthy in this context. It also echoes some of the remarks in the comments to Pat Murphy’s recent article as presented here at GRELJ (i.e., Mr. Murphy himself noted that “[t]here is a crying need for accurate, verificable and reliable energy rating systems. If LEED doesn’t fill the bill, other options will come forward.”) In addition, if it is true that Southerlan’s system is somehow excluded from the purview of LEED, there may be other, more serious problems with Nashville’s legislation from an antitrust perspective, which we’ll get into in a subsequent article.

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5 Responses to Contractor Leads Attack Against Nashville’s LEED Legislation

  1. Michael Gibbons August 18, 2009 at 2:18 am #

    The proposed municipal legislation in Nashville is more alternative to LEED than “attack” on LEED (though some LEED proponents may choose to view it as an “attack”). Interestingly, and tellingly, the Contractor behind the new proposed performance based legislation is a design builder of HVAC systems and building envelopes. One obvious problem with the proposed legislation is that, in the absence of a design build delivery system, no contractor is likely to agree to warrant the engergy performance of a newly designed and constructed building.

    In the traditional and still frequently utilized design-bid-build project delivery system, there are a number of risk factors beyond the contractor’s control that would typically prevent it (or its surety) from “guaranteeing” certain improvements in energy consumption including :

    1. Errors or omissions by the MEP engineer designing the hvac system;
    2. Errors or omissions by the architect designing the building envelope;
    3. Errors or omissions by the commissioning agent preparing the commissioning plan or reviewing the hvac and envelope designs;
    4. Improper operation of the mechanical systems by the owner post completion;
    5. Improper maintenance of the mechanical systems by the owner post completion;
    6. Occupant thermal “comfort” settings below (for A/C) and above (for heat)design assumptions.

    Factors 4,5 and 6 above would also be beyond the control of the design builder. Risk factors 4 and 5 can be mitigated by systematic training and testing of facility personnel on the equipment they are managing. Risk factor 6 above is a wildcard in the absence of some kind of “governor” built into the controls.

    This is a timely article in light of the recently published piece by Pat Murphy. I suspect that there will be few persons interested in assuming the risk of a performance guarantee on a newly designed building other than the design-build sponsor of the legislation. I can see, however, the attractiveness of the thought behind it. Legislative efforts like this one in Nashville will help to ensure that the USGBC continues to move towards a more performance based building rating system.

    Like Stephen, I am curious to learn why the energy saving strategies pursued by Energy Systems, Inc. do not satisfy applicable LEED criteria. There may be another interesting story there.

  2. Larry Spielvogel August 18, 2009 at 12:42 pm #

    There is a very good reason why a building may not meet LEED energy requirements. If a building complies with the local building and energy codes, it probably will not comply with the ASHRAE Standard 90.1 energy standard, which is a prerequisite for LEED. Only one or two states require compliance solely with 90.1, while most states adopt the IECC, which has 90.1 as an option that is rarely used because it is too complicated. One of the results from using 90.1 is that the complications can result in the unintended consequences of wasting energy efficiently. That is why so many LEED buildings are energy pigs.

    Unfortunately, USGBC often accepts a Certificate of Occupancy as code compliance, without stating whether the building envelope and HVAC complies with 90.1. It is commonly found that LEED buildings also do not comply with ASHRAE Standard 62.1, the LEED prerequisite ventilation standard, which is also extraordinarily complicated.

    Contrary to the statement by Mr. Jameson, LEED does require compliance with the HVAC provisions of ASHRAE 90.1, or the building will not be certified at any level.

    (Editor’s note- Councilman Mike Jameson sponsored the original Nashville legislation and is quoted in the article as follows: “LEED allows points toward certification for a variety of efficiencies. Even if you completely ignored the HVAC component, you could garner enough points in dozens of other categories to obtain certification.”)

  3. Brian D. Anderson August 18, 2009 at 2:49 pm #

    Larry,

    How does 90.1 encourage the efficient wasting of energy or is that a discussion far too long for this blog?

  4. Deb Teall August 19, 2009 at 2:49 pm #

    Stephen — Following up on Nashville’s LEED law, I’m sure you saw that Baltimore has now legislated LEED Silver for all new construction and renovation. ALL. Not just public buildings. An ongoing concern of mine, as you know. I object to third-party, GUIDELINE rating systems becoming law. Too risky for contractors, among other issues…deb

  5. Tom Hall August 28, 2009 at 2:04 am #

    Thanks for the write up about Nashville. I am definitely happy that our Metropolitan Government has taken steps in the right direction towards implementing some green building standards. I think all of us are seeing that while LEED may be the standard, it is not perfect and probably never will be perfect. As the green construction and building industry changes, LEED must change with it.

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