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.

Since last month’s Legal Forum at Greenbuild, there have been a number of articles about the increase in “chatter” about the potential for “LEEDigation,” the phrase which my friend and colleague Chris Cheatham coined over at Green Building Law Update some time ago to describe the type of litigation arising out of a project which fails to obtain LEED certification as anticipated. However, as we draw closer to the end of the year, I thought it might be worthwhile to consider why concerns about “LEEDigation” might ultimately be more smoke than fire based on the green building legal experience here in 2010:

• First, the result of the Northland Pines decertification proceeding suggests to me that USGBC/GBCI will never decertify a building once it has achieved LEED certification. As you will recall, in Northland Pines, although it was clear that the high school had failed to satisfy certain LEED prerequisites – grounds for its LEED rating to be revoked by USGBC under LEED for New Construction Version 2.1 – USGBC nevertheless permitted the project team to retroactively amend its documentation and retain its LEED Gold rating. This is the primary reason – in my opinion – why we have yet to see any reported litigation arising out of a project’s failure to earn LEED certification; USGBC/GBCI will work with project teams through its appeals process to ensure that the desired level of LEED certification is achieved and “LEEDigation” never happens.

• Second, many of the private owners who are paying for LEED certification are heavily invested in USGBC as members and participate in LEED’s consensus-based development process; initiating “LEEDigation” would be a black eye for them individually, as well as for their reputation within USGBC itself. Far better to work through a project’s LEED issues collaboratively through the appeals process than to commence a costly and likely protracted litigation. I also thought the following comment from one of Mr. Cheatham’s recent posts at Green Building Law Update was fascinating and worth considering here in the context of “LEEDigation” in public contracting:

“LEED requirements are well established in the federal sector and military because they’ve been in writing for many years. The USACE’s standardized D/B RFP contains clear language going in about the LEED requirements. The scenario [described here] seems like a “LEEDigation” scare tactic. Government contracting officers do not randomly require LEED certification after construction has begun. In fact USACE publishes a list of each project they plan to actually certify in a fiscal year BEFORE that fiscal year has begun. Too bad such scare tactics get lots of attention. By the way, the Navy has had a policy of requiring actual LEED Silver certification of all of their MILCON project (not government validation like the Army and Air Force) for the last three fiscal years and no ‘LEEDigation’ has resulted from it. I find this scenario very unrealistic.”

• Third, and more broadly, I think that the International Green Construction Code, which includes USGBC’s Standard 189P as a compliance path, will become the de facto legislative tool at the state and local levels for green building policymaking. Gone are the halcyon days where municipalities could dole out tax credits and other financial incentives for green buildings; if they choose to address the local-level environmental impacts of buildings, they will do so through amendments to state- and local-level building codes using the IGCC, Standard 189P, or other location-specific initiatives. (We’re seeing this happen already; this fall, Rhode Island became the first state to adopt the IGCC, California has implemented CalGREEN as of January 1, 2010, and New York City’s Green Codes Task Force continues to make recommendations to amend the New York City Building Code.) This is important from a “LEEDigation” perspective because mandates requiring formal LEED certification will soon become an early 21st century legislative novelty.

• Finally, any private sector “LEEDigation” that does arise will be of a posture similar to Gidumal and the Toronto condominium suit (which we have referenced here at GRELJ but not written about): disgruntled purchasers and lessees of real estate in both residential and commercial contexts will use LEED as a sword if owners and landlords fail to properly represent their projects’ green aspirations in offering plans and leases.

Now, is it important to address and allocate the responsibilities for LEED certification in your design and construction agreements? Absolutely, for a host of reasons, but particularly if one party (i.e., the architect or the LEED consultant) has responsibility for coordinating any subsequent appeals to USGBC in order to capture the required level of certification.  However, it’s been over ten years since the LEED program’s inception and we have yet to see a reported litigation arising out of a project’s failure to earn LEED certification. (Again, note that this was not the allegation in the Shaw Development litigation which, incredibly, continues to be referenced incorrectly for this proposition in various quarters).

My question to you during the upcoming holiday break – which I hope you’ll respond to in the comments – is the following: will 2011 prove me wrong or is “LEEDigation” destined to go down as a green building red herring?

• Redevelopers Beware – SF Ordinance is LEED on Acid (gbNYC)

• District Court Judge Grants Injunction (gbNYC)
• Industry Groups Launch Legal Challenge to Green Building Codes (gbNYC)