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.

“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.”

“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

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