Michael C. English, PE, CCP, LEED AP
http://michaelenglish.wordpress.com/
http://twitter.com/mce68

1) Regarding delegation to a private entity, it seems to me that USGBC doesn’t have any kind of meaningful choke-hold on this. You can do the audit, get an Energy Star, show your >75th-percentile energy performance if Energy Star isn’t applicable, or your fourth avenue is to obtain LEED-EB. In practical terms, the Energy Star is probably easiest if your performance is good; failing that, the once-a-decade audit report is probably the simplest approach to compliance. (Remember, you have to collect the same consumption data, and use a design professional to certify your Energy Star applications and also to seal these city energy audit papers, so Energy Star is not going to be too much cheaper/simpler than having that same professional do an audit/report.) LEED-EB is a more costly and complex compliance option included to recognize the efforts of owners who go above and beyond. I agree there maybe ought to be some guidance for DOB regarding how to select alternative rating systems, but otherwise I don’t see the problem.

2) Regarding tracking changes in LEED-EB: First, USGBC will stop allowing LEED-EB-2009 applications at some future point after an updated version supersedes LEED 2009. So if you insist on assuming the NYC rules are never revised, the LEED certification compliance path would just become unavailable (leaving three others). In fact, there is language allowing DOB to track LEED changes — I can’t see why DOB couldn’t just recognize the new edition of LEED as a rating system compliance path. Second, isn’t this the same issue “model code” standards have? For example, ASHRAE 90.1-2007 doesn’t automatically supersede -2004 as the NYS energy code; the legislature has to change it. No big deal; it’s normal maintenance of your laws and codes. What’s the crisis?

3) I also can’t see what the risk is if a design professional attests that a building has obtained LEED-EB, presuming that’s true at the time of signing and that they aren’t aware of material defects in the LEED application. If the building owner can’t keep the certification (i.e. it later got revoked for violating the MPRs or any other reason), they’d presumably have to meet the audit legislation’s requirement through any of the other paths, and/or face the penalties for non-compliance. That falls on the owner — I can’t see how it would reflect back to liability for the design professional, whose truthful statement to the city was that the building was awarded LEED-EB by GBCI, not that it complies and will continue to comply with LEED-EB.

Many of your posts point out real, sticky legal issues — but this time I think you’ve over-projected your typical legitimate concerns into something less than substantial.