The Henry Gifford-led class action suit against the USGBC in the Southern District of New York is a class action no more.
Tag Archives | green building performance
USGBC’s 2010 Legal Forum at Greenbuild in Chicago will feature a panel called “What’s the Next Big Challenge in Green Building Law,” which will delve into a myriad of current legal topics of interest to the green building community.
An interesting wrinkle on the intersection of green building policy and performance is currently playing out in downtown New Haven where developer Bruce Becker is fighting the state’s Department of Public Utility Control over its recent decision to deny his application for net metering of his new 360 State Street development.
The Green Tragedy: LEED’s Lost Decade was released while I was away last month. Author and Community Solutions executive director Pat Murphy traces the historical argument promoting minimal green building cost premiums, reviews the ongoing marketing effort behind LEED, and concludes that policy makers should demand energy efficiency standards more akin to the German Passive House rather than “cheap quick ‘green’ solutions.”
In September of 2008, the Board of Directors of the National Institute of Building Sciences (“NIBS”) assembled a Task Group of design professionals, builders, and its own staff members to review third-party building performance rating systems and associated individual accreditation programs currently in use across the United States. The Task Group identified twenty systems and programs and interviewed representatives from AIA, ASHRAE, BOMA, GBI, NAHB, EPA, USGBC, and Victor O. Schinnerer & Co.. among others, in compiling its “Report on Building Rating and Certification in the U.S. Building Community,” which was released last month.
Back in 2007, the Energy Engineering Program at the University of Massachusetts Lowell completed a study of the actual energy performance of 19 green buildings across the Bay State. The study was funded by the Massachusetts Renewable Energy Trust and identified 13 schools which were certified under the LEED-based Massachusetts Collaborative for High Performance Schools Criteria, as well as 6 buildings that had earned LEED certification. The study compared energy consumption as predicted during the design phase and actual occupancy post-construction; buildings included in the study provided at least one year of occupancy data. The authors also interviewed individual project teams and energy modelers and conducted occupancy surveys in evaluating the effectiveness of various types of efficiency measures. All of the buildings received design or construction grants from the Massachusetts Technology Collaborative, which provided the prediction data that project teams had submitted in connection with their funding applications. Although the study concluded that these 19 green buildings were consuming (on average) 40 percent more energy than predicted, all of the buildings were consuming less than a building designed to Massachusetts baseline building codes. The disparity in predicted versus actual energy consumption is probably not surprising, but the study did identify a number of issues common across the buildings which resonate with many of the technical and operational provisions of documents like the Model Green Lease. I think it is therefore worthwhile to review the study both from a green leasing perspective, but also in terms of LEED, particularly because the Lowell study has not been referenced in many of the recent articles discussing the ongoing LEED performance gap.
The San Francisco Chronicle has picked up on the recent flurry of commentary generated by Mireya Navarro’s piece in the New York Times about the LEED building performance gap. The article opens up by stating “[r]evelations that many buildings certified as green under a broadly accepted national standard for energy savings are not performing as well as predicted recently prompted changes to the [LEED] program and are forcing San Francisco officials to consider amending city rules that are tied to the older guidelines.” However, a closer look at the substance of the article suggests that city officials may actually be trying to expedite the application of the LEED 2009 system and its corresponding Minimum Program Requirements (“MPRs”) to large, private construction projects. (As you will recall, the new MPRs require that projects which pursue LEED certification to “commit to allow USGBC to access all available actual whole-project energy and water usage data in the future for research purpose” or risk decertification.) I also think the piece is noteworthy because it suggests an inextricable link between increased data reporting and increased building performance.
Some interesting legislative developments are taking place right now in Nashville, Tennessee that implicate many of the green building policy issues that we’ve been wrestling with over the past few months here at GRELJ. Since 2007, metropolitan Nashville has required most new and major public projects to larger than 5000 square feet or costing more than $2 million to earn LEED certification. Recently, city councilman Duane Dominy of suburban Antioch introduced legislation that would “allow the Metropolitan Government to pursue an alternative sustainable development design standard to LEED certification based upon pre-determined energy reduction and efficiencies. If Metro chose to pursue an alternative to LEED, the contractor would be required to warrant for a three-year period that the annual energy use for the building will be less than similar buildings” or will earn a minimum score under EPA’s Energy Star program.
The possibility that a LEED-certified project could be “decertified” by USGBC or GBCI in the event that any of the new LEED 2009 Minimum Program Requirements (“MPRs”) are not satisfied presents a variety of novel legal issues which we presented earlier this year here at GRELJ when the first iteration of MPRs was announced by USGBC. Today, Engineering-News Record (“ENR”) published an article that highlights a number of those issues, but also raises the question of who, exactly, would have standing to bring a decertification proceeding. If strictly limited to USGBC or GBCI, a recent comment here at GRELJ from Brian Anderson (“lawsuits are bad for marketing”) suggests that decertification would be a remote possibility. However, in the ENR piece, which is titled Building Rating System Requirement Raises Concern and authored by Nadine Post, my colleague Ujjval Vyas notes that “[a]ny third party has the right to initiate a non-compliance action by USGBC. This creates a huge risk and provides standing to any entity whatsoever to injure a building owner or tenant.” If third parties can compel decertification proceedings, the risks associated with failing to comply with the MPRs are far more serious than if that discretion rests exclusively with USGBC or GBCI.
During the first homestand of the season at $1.6 billion New Yankee Stadium, baseballs flew out of the ballpark at an unprecedented rate; the 20 dingers that were clocked during last weekend’s series against the Cleveland Indians were the most ever in a four-game set to open a new stadium in baseball history. Last season, Old Yankee Stadium saw 160 home runs; the current pace would yield a mind-boggling 351 round-trippers for the entire 2009 season. The Yankees did not anticipate that their new ballpark would turn into a Little League bandbox; dimensions at the new park are the same as they were across the street and engineers performed a wind study in advance of construction that did not suggest any major changes in currents or speeds. So, after witnessing several routine fly balls to right field land halfway into the lower deck last Saturday, it struck me that there are some parallels between what’s been happening thus far at the new ballpark in the Bronx and some of the building performance issues that we frequently discuss here at GRELJ.