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Jerry Yudelson: “Dereliction” of Duty by Architects & Engineers Who Fail to Advocate for LEED Certification

Green building consultant Jerry Yudelson delivered two keynote addresses earlier this month at an event sponsored by the Central Texas Green Building Council. According to a press release, during the course of his remarks Yudelson “presented clear evidence that high-level green outcomes add significant value to buildings. ‘What part of a 30 percent increase in value from LEED certification is hard to communicate?’ He challenged architects and engineers to do a better job of advocating for green building with their clients. ‘You are doing your clients a disservice by letting them build projects without LEED certification,’ he said. ‘It almost amounts to dereliction of your duty as professionals.’” As you likely know, this latter remark about the design professional’s responsibilities in the green building space is exactly the opposite of what many construction attorneys have been preaching over the past few years as best practices for architects and engineers. Putting aside for purposes of this article any analysis of Mr. Yudelson’s claims of 30 percent increases in value for LEED-certified buildings, I think his remarks provide a good opportunity to review the risk management implications of the design professional’s representations to his or her clients about the possibilities and potential pitfalls of green building, including the LEED certification process.

First, the design professional who functions as an advocate, extolling the promises of increased energy efficiency, asset values, and rental premiums of LEED-certified buildings is creating a corresponding high expectation in the eyes of his or her client. As we noted over at gbNYC in the aftermath of a BIM/green building panel held here in New York City nearly two years ago, insurance industry professionals will almost always observe that claims start with violated expectations. As architect and attorney Fred Butters points out in his seminal Real Estate Issues article, Greening the Standard of Care: Evolving Legal Standards of Practice for the Architect in a Sustainable World, “[i]f the architect does not clearly and sufficiently indicate the positives and negatives [of green building installations, technologies, or certification programs], the client will be looking to the architect to make him or her whole. Becoming an advocate for many types of sustainable approaches may cause the design professional to overlook the messy reality for the sake of being a good advocate.”

Butters also points out that “[i]f the architect is serving as an educator, the client’s decision to ‘go green’ may be only that- the client’s decision. However, if the architect is ‘encouraging’ or ‘advocating’ for the incorporation of green features, his or her advice is implicated in the design decision. In that instance, the possibility that the architect can avoid the effect of the client’s unmet expectations is low.” Advocating for LEED or other green design features may also implicate standard of care issues, potentially elevating that standard beyond what prevails for architects and engineers in their particular geographic location. As we have noted previously, this amounts to an assumption of liability above what is imposed by law; most professional liability policies will exclude coverage for claims where the design professional has failed to satisfy that heightened standard.

What makes this issuer thornier, though, is that the architect actually does, in fact, have an obligation- both in the 2007 version of the AIA contract documents, and the new AIA Canon of Ethics- to promote sustainable design practices. For example, Canon VI, Obligations to the Environment, requires the architect to “advocate the design, construction, and operation of sustainable buildings and communities.” (Ethical Standard 6.2). In performing design work, the architect “should be environmentally responsible and advocate sustainable building and site design.” (Ethical Standard 6.1). As Mr. Butters also points out, and as we’ve noted here at GRELJ previously, the B201 (2007) Owner – Architect Agreement contains similar requirements:

§ 3.2.3 The Architect shall present its preliminary evaluation to the Owner and shall discuss with the Owner alternative approaches to design and construction of the Project, including the feasibility of incorporating environmentally responsible design approaches.

§ The Architect shall consider environmentally responsible design alternatives, such as material choices and building orientation.

The National Society of Professional Engineers’ Code of Ethics contains a similar obligation under Professional Obligations, III.2.d: “[e]ngineers are encouraged to adhere to the principles of sustainable development in order to protect the environment for future generations.” The design professional is thus placed in a delicate position; professionally, it has an obligation to promote sustainability, but at what potential perils?

Mr. Yudelson’s remarks are also important to note in light of our recent article here at GRELJ about the insurance coverage implications of the Energy Ace LEED certification “guarantee.” You can also click here to learn more about their insurance policies. Unbridled green building advocacy could also provide an insurance carrier with the argument that the design professional has provided the functional equivalent of a guarantee- either LEED certification, performance, or otherwise- that might give the carrier grounds to deny coverage for negligence claims arising out of the project. For example, and as we noted previously, “the concept of a guarantee is essentially representing perfection; anything less is a breach of contract, claims for which are similarly not covered by a professional liability policy (though the insurer may still defend under the policy but reserve its rights). In short, absent confirmation from the carrier that coverage will remain available, it will continue to be dangerous for parties that maintain professional liability insurance to make the types of representations implicated by the Energy Ace guarantee.”

I think it’s therefore worth repeating that while the analysis of green building legal issues related to standards of care, professional liability insurance, and LEED building performance continue to play out, architects and engineers should be particularly careful when making the types of representations that Mr. Yudelson suggests when participating in the design of green construction projects.

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7 Responses to Jerry Yudelson: “Dereliction” of Duty by Architects & Engineers Who Fail to Advocate for LEED Certification

  1. Chuck Tackett September 21, 2009 at 1:53 pm #

    The Jerry Yudelson speech post hints at, if not directly implicating, what troubles this industry more than anything in regard to sustainable design, namely that there is no consensus on what really constitutes sustainable design. To say that a professional is derelict for not advocating LEED certification is a farce. However, to say that failure to advocate for LEED is equivalent to not advocating sustainable design is an argument that could gain traction. That is highly unfortunate and dangerous. We cannot allow the marketing ploys of any of the certification programs or their subset of niche consulting firms dictate what is or is not sustainable design.

    I do believe that architects and engineers have an obligation to provide our clients with high quality, environmentally responsible designs based upon the clients needs and objectivesthat fit within the larger community’s standards for ethical and responsible design. Thus there should be a some point at which the designer must refuse a client’s goals where they fall below those community standards. However, those decisions must be determined on a case by case analysis and cannot be subject to third party firms with no stake in the outcome.

    We need to have much more debate toward reaching a consensus about what constitutes sustainable design. Right now it’s a chaotic mess being driven by ideologues and profiteers.

  2. Marshall Leslie September 21, 2009 at 6:55 pm #

    Ditto Chuck Tackett ….. And while the AIA’s now almost five year old position paper on sustainable building rating systems and standards may not have much currency in some places, its 16-points are in fact a manifesto (see that describe far better than Mr. Yudelson, that goal which members of the design team should be striving for.

  3. Stephen Del Percio September 23, 2009 at 3:40 am #

    Great comments, Chuck, thanks, and important to note that you’re coming from the architect’s perspective. Marshall, I think your comment hints at what Fred suggests in his article- suppose you remove that nebulous form contractual obligation from the B201 to consider “sustainable” design alternatives and discuss those options with the owner. Have you nevertheless breached your ethical obligations under both the Canon and that manifesto?

  4. Luis Huertas, AIA, LEED AP October 3, 2009 at 1:50 pm #

    The biggest challenge that I encounter when facing this situation is client knowledge level. The standard statement I get is “I want a green building, but I have no idea how to get there.” This translates into “I am confident you know what it takes and thus delegate the responsibility to you to make it happen.” This triggers an education process that takes an entire team of educated professionals as well as a receptive client. Once the client “gets it”, the level of expectation becomes immense and extend beyond what the defined basic services of a design team is supposed to provide. This can be an opportunity to offer other services as well such as energy audits, programming fro future expansions or revising the functions of a current space, carbon emission monitoring, adjustments on operations practices and many others.

    Architects need to think beyond the traditional practice and embrace other services to help the clients get to a higher level of performance and profit (getting the biggest bang for the buck) and this entails sustainable design strategies. Although I am a big advocate for LEED, one can advocate for sustainable design without having to force a rating system. Insurance companies should seize the opportunity as well and help architects offer these services to their clients. Resistant in doing this will only promote fragmentation of the industry to allow for the risk to be allocated in a simplify way rather than integrated to match the design process.

  5. Jeffrey Geibel APR, LEED AP October 6, 2009 at 3:33 pm #

    Well done, Stephen.

    From a sustainability marketing and public relations perspective, this is a very thought-provoking article. I think it points out the need to balance the creation of expectations with professional obligations (as mandated by the architectural and engineering ethics codes) and also the limits of sustainable advocacy where a proponent could take on the obligation (“guarantee”) of perfection. I found that commentary alone to be extremely valuable.

    That being said, I think these caveats can be incorporated when developing marketing and public relations efforts for LEED-based services, and I will no doubt return to this article from time to time to review these concepts.

    By the way – I have several of Jerry Yudelson’s marketing books. As far as I can determine, he’s about the only one who has written anything comprehensive on sustainable marketing – he’s been in it since the 70′s. So perhaps it’s understandable when he goes a bit over the top.

  6. Dirk Faegre October 7, 2009 at 5:37 pm #

    Why lean on LEED if their specs don’t focus on energy efficiency?? As the NY Times article (and others) make clear — LEED buildings (regardless of the award level) don’t require much in the way of energy efficiency during operation of the building. They do for the construction phase, but seem to totally ignore for the remaining life of the building. “Farse” is too weak a description for this professional. Those interested in more should read the following:
    in which he shows that LEED certified buildings generally use MORE energy than those not rated. !!
    Another quote that says it best: “Building energy use is probably the largest field of human endeavor in which almost nobody measures anything.” My favorite example is the new building in NYC that had specs for air conditioning loads that exceed their use by at least an order of magnitude. What will the school be teaching, you ask? Professional Engineers! But at least it’s LEED certified. Yuk.

  7. Advocating LEED certification does not equate to advocating sustainable design. For that fact, LEED certification does not equate to a sustainable facility.

    The case of the Northland Pines High School (NPHS) in Eagle River, WI, was not the first appeal. There were at least two earlier challenges.

    USGBC take the NPHS case seriously for two reasons. First, the review was performed by two (2) nationally recognized experts in the prerequisite standards. One was 24 year veteran and past Chairman of the ANSI/ASHRAE/IESNA Standard 90.1 Committee, and is ASHRAE’s expert. The opinions of these experts simply couldn’t be dismissed. The second reason was that this case was about blatant and deliberate fraud on a breathtaking scale. The review documented over 2300 documented violations of LEED prerequisites in what was only a partial review of only the HVAC systems. How many more violations could be found in a comprehensive review? NPHS exposed the USGBC LEED review process as a technological sieve which not only permits, but encourages, fraudulent certification applications.

    For USGBC, The Northland Pines High School case opened Pandora’s Box. NPHS threatens USGBC’s very existence because it threatens the only thing they bring to the table, their credibility. It raises a very legitimate concern, “How many more NPHS’s are out there?” Based on my personal observations and experience as a practicing design engineer, I can honestly say, “Far more than USGBC will ever be willing to acknowledge!” This is a huge problem for them.

    The worst possible thing USGBC could do in this matter would be to try to whitewash the issue. To do so would completely undermine the underlying basis for any claim of value for LEED certification; past, present and future. While we all hope that it doesn’t kill it, such an action would also have a devastating impact on the whole “sustainability” movement. It would suddenly become, as many already suspect, “smoke and mirrors.” This would utterly destroy any value associated with LEED Certification, and make Mr. Yudelson’s opinions regarding “dereliction of duty” moot.

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