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“Shadow Government?” Boston Architect Questions Propriety of LEED-Driven Legislation

LEED Legislation

An important article about the roles of USGBC, LEED, and the LEED accredited professional appears in the most recent issue of ArchitectureBoston, a quarterly publication of the Boston Society of Architects.

Written by Michael Liu, a principal at The Architectural Team in Chelsea, Massachusetts, the piece notes the proliferation of LEED-driven legislation at the state and local levels. It observes that “[a]lthough the USGBC’s LEED system has done more to bring the cause of sustainability into the public consciousness than an other, perhaps the time has come to revisit that assumption in the case of a private regulatory body that is not answerable to governmental authority.”

While this issue is not necessarily a novel one, it is significant that a major architectural publication has openly asked the question. The article itself appears to be motivated (at least in part) by Henry Gifford’s lawsuit against USGBC. From that perspective, perhaps Mr. Gifford’s suit can already be deemed a success, regardless of the Southern District of New York’s decision on USGBC’s pending motion to dismiss his complaint.

Liu asks whether “[t]he shrill original allegations aside, at its core, the [Gifford v. USGBC] case raises the question of whether it is appropriate for a private fee-generating nongovernmental organization to assume what amounts to a regulatory role in the building industry.” This legal concept is likely familiar to you: by relying on the LEED system within legislation, state and local governments have effectively punted control over their programs to an unaccountable private third-party organization.

As we’ve noted here previously, although this type of policymaking may have legal repercussions worth discussing under the non-delegation doctrine, Liu’s article is more concerned with the “process of certifying buildings and the creation of a new fee-generating bureaucratic structure to do so.” Although he does not walk through any proposed solution, Liu writes that “[i]t seems fair to ask whether so much administrative complexity and hierarchy actually advances the cause of sustainability.”

The article refrains from critiquing LEED itself. (“The issue then is not the LEED rating system, the virtues and shortcomings of which can be separately discussed.”) But Liu identifies many of the legal process questions that have floated across the green legal landscape since LEED-driven legislation began to proliferate in the mid-2000s.

One open issue is whether the IGCC will become the policymaking tool that LEED itself was never intended to be. Already several states have incorporated it into building codes. The IGCC itself raises a host of issues outside the scope of both this article and Mr. Liu’s. But shining a spotlight on these issues as green building regulatory activity continues is critical, particularly as construction starts increase in an improving real estate climate.

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4 Responses to “Shadow Government?” Boston Architect Questions Propriety of LEED-Driven Legislation

  1. Dan Sheridan June 16, 2011 at 10:55 am #

    Steve – Great observations. Overall, I think that Mr. Liu misses the mark. The USGBC is not a regulatory or even quasi-regulatory body, nor (to my knowledge) has it claimed that status for itself. If a legislative body chooses to reference the LEED standard (or LEED Certification, which implicates not just the USGBC but the GBCI as well), I agree that this raises important constitutional questions regarding nondelegation. (By the way, there’s a pretty good analysis of those questions in a recent Hofstra Law Review Note (39 Hofstra L. Rev. 369). But why should the USGBC be made to answer for these legislative choices? Does the fact that LEED has become the “de facto” standard for green building practices to which a legislature may choose to defer make the USGBC accountable to the body politic writ large? I have a hard time with that. I agree that the IGCC is probabaly the better approach (to policy making), but it also raises as many questions as it answers. A worthwhile topic for ongoing review and conversation. Thanks for the post.

    • Stephen Del Percio June 16, 2011 at 5:07 pm #

      Thanks for the comment and the cite, I pulled the note and I’m looking forward to reviewing it. My sense is that IGCC is going to make some of these questions obsolete, but we’ll see.

  2. Lloyd Alter June 16, 2011 at 12:22 pm #

    ” the question of whether it is appropriate for a private fee-generating nongovernmental organization to assume what amounts to a regulatory role in the building industry.”

    The world is full of fee-generating self regulating professions, where governments entrust private organizations to have regulatory roles. I am a member of one myself, the Ontario Association of Architects.

    For a hundred years it has depended on Underwriters Laboratories to manage safety standards. This is not uncommon.

    • Stephen Del Percio June 16, 2011 at 5:38 pm #

      I think the difference is that those other standards are just that – standards. They’ve been accredited by ANSI or ISO or UL. And there’s a mechanism in place within the state or local legislation to address any compliance disputes. There’s a body of law that addresses non-delegation in that context. Rating systems where a designation is conferred by a third party is a separate scenario.

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