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Wild Week for Green Real Estate Law Includes Response to USGBC from Northland Pines Appellants

Northland Pines High School

It’s been a wild ride recently for the green building legal community; in the past week we’ve witnessed the country’s first reported green condominium litigation and another challenge in federal court to a state-level green building program. Now (over the weekend), the Northland Pines appellants have announced that they dispute USGBC’s denial of their challenge to the LEED Gold certification of the Northland Pines High School, publicly released the documents on which USGBC’s decision was based, and are calling on the green building industry to review the materials and draw their own conclusions about the merits of USGBC’s decision.

After a preliminary review over the past few days of the materials which the appellants sent to me (and many others across the industry), what strikes me as most interesting is the opening paragraph to the Executive Summary prepared by Taylor Engineering, one of the independent consultants which USGBC engaged to evaluate the challenge, in response to the appellants’ allegations. Taylor states that “there were several violations of Standard 62.1 and Standard 90.1 requirements in the design as originally documented. As such, the original design did not meet IEQ Prerequisite 1 and EA Prerequisite 2 of LEED NC version 2.1.”

Taylor also notes that revisions were made to the school’s energy model on December 10, 2009 – well after the energy models on which the disputed prerequisites were submitted to USGBC for consideration. As the appellants point out in their response to Taylor, “the independent consultant indicates that the original model at the time of the USGBC application . . . is not correct. Making revisions to the energy model 4.5 years after the design should not and cannot be the basis for compliance with this prerequisite.”

These details – though technical – require that the green building industry – including policymakers – review the challenge and supporting documents released by the appellants with scrutiny. However, if the project did, in fact, fail to satisfy these prerequisites, but was certified anyway, and the USGBC’s decision essentially stands behind ex post facto revisions to the energy model, the appellants’ contentions throughout the challenge and response documents that the LEED certification process itself is flawed become all the more compelling.

I am sure that there will be much more to say about all of these materials moving forward but, to get you started with your review, here’s the public statement which the appellants prepared as an introduction to the package of documents which they have released for review and comment:

Appellants’ Statement – June 5, 2010

What is all the ruckus about Northland Pines?

In 2004, the voters of Vilas County, Wisconsin voted to approve the sale of $28,535,000 worth of bonds to finance a new high school for the Northland Pines District.

The appellants in this case all served on the Building Committee for the new school and each brought specific talents and experience in the design and construction of large buildings. Each was dedicated to the proposition of creating the most efficient structure possible.

The design team and school board discouraged any outside input and set forth to design and construct the school as they saw fit. As the design developed, the appellants questioned whether the facility would indeed meet the prerequisites for LEED Certification and were told that it would despite what appeared to be glaring shortfalls with respect to those requiremetns. The appellants retained the service of two highly regarded consulting engineers to review the plans. Both of them determined that the facility as deisgned would not qualify for LEED Certification.

In December 2008, the appellants filed an appeal with the USGBC challenging the award of the Gold Certification given to Northland Pines. Some 16 months later, the appellants were notified that the USGBC had looked into the matter and found everything to be fine. They based this on reports from two or more consulting engineers who said that the building did not meet the prerequisites but concluded that “pretty close” is close enough. When the appellants’ engineers asked for the backup data to the USGBC reports, they were told that they were pretty busy and would address that request when they have time. Time has passed and the requested materials have not been forthcoming. Why?

On behalf of the taxpayers of Vilas County who would like to know with certainty whether they got what they paid for or not, we ask the engineering community to look at this file and tell us, did we miss something here? How can it be all right to certify a building that doesn’t fully comply with the rules set forth by the body that is doing the certifications?

We would love to hear what you think. We are only in search of the truth which ultimately will be what is best for Northland Pines.

(An interesting procedural sidenote is whether the appellants could have appealed USGBC’s denial of their challenge rather than distributing the complaint . Under the Certification Challenge Policy, GBCI’s Board of Directors serves as the appeals body, and the appeal must be requested within twenty-five (25) business days of the underlying decision (meaning the appellants would have had until June 2 to file their request based on an April 27 decision from USGBC). However, at least with respect to this challenge, you will recall that USGBC General Counsel Susan Dorn explained in a email message that the Northland Pines proceeding was reviewed by USGBC as a legacy project under the rules which applied when USGBC – and not GBCI – was handling LEED certifications, and that future challenges would be reviewed under the GBCI policy.)

In any event, the full set of documents is available from Larry Spielvogel (spielvogel@comcast.net) or Mark Lentz (mlentz@lentzengineering.com) upon request and includes an original copy of the appeal which was submitted to USGBC in December of 2008, as well as the appellants’ reactions to each of the conclusions as reached by USGBC’s consultants and other supporting documentation.

A copy of the Executive Summary of the appellants’ response to the denial of their challenge (which was prepared by Spielvogel and Lentz) is available for download here.

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14 Responses to Wild Week for Green Real Estate Law Includes Response to USGBC from Northland Pines Appellants

  1. Chris Cheatham June 9, 2010 at 10:17 am #

    Yep. You nailed it. I have a very similar post in the hopper for tomorrow.

    The big question is whether any major media outlets pick up this story.

    • Stephen Del Percio June 9, 2010 at 11:56 am #

      Looking forward to your post, Chris. I know ENR reported on the appeal earlier this year; perhaps they will follow up.

  2. Shillpa June 9, 2010 at 11:45 am #

    Steve- great story, thanks for wrapping your head around it. We will continue to follow it. Very interesting that past LEED projects are applicable to the new GBCI’s policy to revoke certification. Keep up your good work!

    • Stephen Del Percio June 9, 2010 at 6:10 pm #

      Many thanks, Shillpa. There appear to be some imminent changes coming to the Certification Challenge Policy, so it will definitely be interesting to keep on eye on that in terms of the scope of projects whose certification may be subject to future challenges.

  3. Stephen Del Percio June 9, 2010 at 6:13 pm #

    Quick note here that ENR has picked up the story with a quote from Brendan Owens:

    “Brendan Owens, USGBC’s vice president of LEED technical development, says USGBC is using the challenge as a case study for the certification team, noting, ‘We can do continuous improvement and still have been right in the past.’”

    http://enr.ecnext.com/coms2/article_busu100609LEEDRating

  4. Stephen Del Percio June 10, 2010 at 5:58 pm #

    Through a statement from its General Counsel Susan Dorn (first reported this afternoon by Chris Cheatham, http://www.greenbuildinglawupdate.com/2010/06/articles/legal-developments/breaking-usgbc-stands-by-its-leed-challenge-decision) USGBC is affirming its decision:

    “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.”

  5. Ujjval K. Vyas, Ph.D., J.D. June 11, 2010 at 3:09 am #

    Stephen,

    I am sure much more will follow regarding this situation but a few thoughts come to mind.

    First, the aggrieved party’s conclusions have very significant implications for any policy action taken using LEED as a proxy for performance. The USGBC, in its own response by Susan Dorn that you quote above, makes clear that even they do not believe that their product lines have much connection to the actual performance of the building. If there are a 100,000 decisions that can be second-guessed in every building project, it is unlikely that there is much clarity or technical rigor at stake in the obtaining of product plaques. In fact, it is becoming more and more evident that the USGBC is not a technically rigorous or intellectually robust enterprise. This is not a critique–many lobbying or advocacy groups on the left and the right share the same attributes and attract the same kinds of ideologically constrained constituencies. The degree of power such organizations and constituencies should have over the governmental process is always hotly contested through public marketing and branding campaigns and not-so-public activity–just special interest politics as usual.

    Yet technical excellence is what was at stake in the complaining report. I encourage all your readers to obtain and examine the material carefully, simply to see how clearly the issues regarding the failure of the pre-requisites was established and the rather odd responding USGBC reports. This is especially so of any and all engineers or technically capable readers. The USGBC is fully within its rights to simply assert any outcome, since this is the real import of their appeal process, but this will have a really chilling impact on any capable policymakers desirous of including the USGBC product mix into local code, ordinance, regulatory requirements or other benefits. This doesn’t even consider the legal implications for insurance and surety entities when the appeals process of the USGBC will inevitably intersect with the growing attempts to legislate USGBC product requirements at all levels of government.

    The real import of this decertification seems to me to be much more important and simple. On my reading, if this decertification attempt can be brushed aside so easily, given the assiduous nature of the complaining report and the USGBC’s expert’s own admission that pre-requisites were not met, then I see no chance that any project can ever be decertified. Again, in fairness, the USGBC can do anything it wants given the policies it has in place for appeals and nothing requires their process to pass due process and transparency muster. In the event though, it makes the USGBC seem to be the kettle calling the pot black when righteously criticizing the unconverted.

    Second, the failure of this decertification makes clear that the process may be hollow or subject to cynical gaming on all sides. One wonders if this decertificaton would have come to the same conclusion if it had been a BP “high-performance green building” discovered to have failed to achieve a pre-requisite. Witness also the recent obsequious response to a strident critique of LEED by an environmental health organization in New Haven by the USGBC. Might the USGBC’s “process” have come to a different conclusion if the call for decertification had come from such an organization?

    On the one hand, the rhetoric of the USGBC appears to vacillate between chest thumping about its technical attributes in the presence of true believers or the technically naive, while on the other, when actually forced to address the quality of its technical/scientific robustness about building performance, health benefits, productivity, and a slew of other “intangible benefits,” there is the constant proffer of market transformation verbiage. It is good strategy to always “stay on message,” but hardly a way to inspire confidence in those seeking substantive outcomes.

    When the primary audience for a set of “transformative products” in the market is composed of true believers and the naive combined with vested interest groups (both public and private) along for the ride, it is clear that caveat emptor becomes the standard operating procedure for all other audiences. The USGBC is a rent-seeker hoping to further engage in regulatory capture, as the economists would say, and even though it is uncomfortable to directly discuss these issues, few eco-labeling activities provide public benefits outweighing the additional costs to society.

    P.S. An article for Construction Lawyer completed last month by a colleague and I addresses in detail, among other things, the USGBC Policy Manual and decertification issues. The article should be published shortly in the upcoming issue of the journal.

  6. Christopher G. Hill June 11, 2010 at 10:33 am #

    Great post Stephen! We need to chat at some point about this stuff. The real issue in my mind is less which side you end up on than the fact that these challenges are out there. I will watch this with baited breath to see where it goes.

    • Stephen Del Percio June 11, 2010 at 10:48 am #

      Thanks, Chris, we should catch up. Like you, I’ve been following the challenge mostly from a procedural perspective but the technical allegations about the prerequisite failures have really grabbed my attention.

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