Late last week, I had the opportunity to speak with Norah Hart, counsel for Henry Gifford in his class action suit against the USGBC in the Southern District of New York, which has elicited some very strong reactions throughout the green building community. According to Ms. Hart, USGBC has retained outside counsel to defend it in the action, and is currently working with Mr. Gifford (through Ms. Hart’s office) to understand Mr. Gifford’s intentions in filing the suit. Here’s, specifically, what Ms. Hart told me she has communicated to USGBC through its attorneys:

USGBC has said that its goal is ‘market transformation’ and indeed they have achieved remarkable results and are in the fortunate position to be able to truly effect change.  We believe that the disclosure of utility bills – which some districts are already requiring – is the fastest way to bring an energy efficiency premium into the market. Markets are most efficient when accurate information is available. If buyers can see the past energy use bills of a property, they can weigh its energy efficiency into the price they will pay. If developers and planning officials see the actual energy bills of existing buildings in their region, they can choose design and construction techniques that are proven to work, and inevitably, will begin to adopt practices that save fuel and money. The disclosure of actual energy use bills will transform the market.

According to Ms. Hart, the plaintiffs are also currently “formulating a list of the injunctive measures [they] want to see, namely, that actual energy bills for all [LEED-certified buildings] are available, databased in an accessible, meaningful way, so information is available with which honest assessment can be done.”

It’s interesting that the parties seem to be – at least on the surface – engaged in these discussions at such an early stage in the litigation. However, the negotiations raise a number of questions, particularly with respect to the building performance data that Ms. Hart hopes to obtain. First, as Larry Spielvogel has pointed out, that raw data is not particularly useful without other pertinent information about each building (such as its occupancy levels, user types, etc.). Second, much building performance data is highly proprietary; as attorney Brian Anderson noted in an email to me, what would be the implications for that raw data becoming public knowledge? “Can USGBC really force building tenants and owners to give information if they have not signed off on such disclosures in their leases?” Anderson asks.

Independent from this latest development, I have also been getting quite a few inquiries over the past few weeks about next legal steps in the action and, assuming something isn’t worked out between the parties in the interim, here’s a rough outline of how the action could move forward:

• The Federal Rules of Civil Procedure require a party to respond to a complaint within twenty (20) days, unless the time to respond is extended by mutual consent of the parties’ attorneys (which it has been here for USGBC, according to Ms. Hart).
• Unless the parties are able to reach some sort of resolution, I expect that USGBC will move to dismiss the complaint under Rule 12 of the Federal Rules of Civil Procedure (which permit a party to make such a motion in lieu of answering on a number of bases); 
• Finally, my guess is that such a motion would not be successful (at least with respect to all of the causes of action in the complaint). At that point, the parties could go back to the negotiation table, or the plaintiffs could move to certify the class under Rule 23(a). In deciding that type of motion (which USGBC would oppose), a court is permitted to order limited discovery, which might (or might not) create a pressure point encouraging settlement. It’s also important to note that the timeframe during which these procedural mechanisms will play out are significant (months, if not years), so this is a story that we will likely be tracking for some time.

 As always, we’ll stay on top of any further developments in the suit and keep you posted here at GRELJ.

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.

Factors that the study identified as responsible for the increase included:

• The building averages 450,000 visitors per year, not the 300,000 anticipated by the model;

• Its two theaters operate for 7 hours daily, not the 2 hours anticipated by the model; and

• Office space is used 7 days a week, not 5.

According to a spokesperson quoted in the Observer article, the library did not track its energy consumption “due to the cost.” Rather, it was “a reflection of [the library's] faith in the LEED certification process that [it] did not go back and second-guess the efficiency of the equipment.” As the Observer notes, the building’s increased energy requirements are, in some sense, due to its own success. However, as ASHRAE Fellow and Distinguished Lecturer Larry Spielvogel, P.E. pointed out in a letter to the New York Times which we reproduced here at GRELJ last summer, “[b]uildings alone do not use energy. The occupants, operators, and systems do.” The factors driving ImaginOn’s performance gap are another example of why the type of predictive energy modeling on which LEED relies is so imprecise and why project teams need to remain careful about the types of representations they make to their clients about the performance-related results of potential LEED certification.

I also think it is also useful here to emphasize again that, under LEED 2009, this type of performance gap would not be the basis for a LEED 2009 decertification proceeding. Rather, the decertification discussion which was so heated last summer related to LEED 2009 projects which fail to commit to sharing performance data or to satisfy any of the other new Minimum Program Requirements- not if projects simply use more energy than anticipated.

• ImaginOn’s Energy Use Grows With Popularity (Charlotte Observer)

As you may know, among other provisions, the San Francisco green building ordinance requires commercial and residential projects greater than 25,000 square feet, or taller than 75 feet, to earn a LEED Certified rating from USGBC. The requirement for commercial projects increased this year to Silver and, in 2012, to Gold. Residential projects must earn a Silver rating beginning in 2010. Notwithstanding these phased requirements, in the Chronicle piece, the San Francisco Department of the Environment’s private sector green building coordinator Richard Chien states that “[w]e need to reconvene the task force that recommended the legislation and makes some revisions way before 2012. With the changes coming along [to LEED] we could be out of date and we need to address that.”

Interestingly, the San Francisco ordinance (No. 180-08 of September 4, 2008, codified at Chapter 13C of the local building code) states that “[w]herever specific LEED prerequisites or credits are cited, such references are to LEED-NC Version 2.2. More recent LEED . . . versions may be used, provided the credits and points achieved are as or more stringent than LEED-NC Version 2.2.” In other words, because the LEED 2009 MPRs are not referenced specifically, it’s not entirely clear whether they are included within the purview of the ordinance, particularly with respect to mid-sized commercial buildings which are only required to comply with certain LEED credits.

The introduction to the article is therefore inaccurate; San Francisco is not reconsidering whether to restructure its green building ordinance around something besides LEED based on perceived LEED building performance failures. Rather, it is evaluating if, as presently drafted, and based on the recent amendments to LEED in the form of LEED 2009, its ordinance will still (1) obligate covered projects to comply with the new MPRs and share performance data; and (2) whether the ordinance should be revised to expedite that requirement. This is precisely the type of scenario that has been suggested both here at GRELJ and elsewhere with respect to the potential consequences for state and local governments that incorporate LEED into legislation by reference. Notwithstanding its performance-related issues, LEED itself continues to be a moving target and policymakers must guide themselves accordingly when considering the merits of this type of legislative activity.

I also think the Chronicle article is noteworthy because it suggests- once again- an overarching perception that simply collecting an increased volume of building performance metrics will solve the LEED performance gap. For example, consider the following quote from architect Jennifer Devlin of San Francisco-based firm EHDD: “LEED has done an exceptional job of raising awareness. And the U.S Green Building Council recognizes that tracking energy use is vital to the sustainable building movement.” LEED has unquestionably raised public awareness about the environmental impact of the built environment and put building performance on the front page of major media outlets such as the New York Times and the Chronicle. But, as USGBC’s Building Performance Initiative and other efforts ramp up this fall, I think it is critical to keep in mind Larry Spielvogel’s thoughts from our last article here at GRELJ that the question of improving building performance is highly complex and clearly one that cannot be solved by simply compiling a longer spreadsheet.

• Green Building Standard Seen as Flawed (SFC)

The USGBC August 25, 2009 press release about their Building Performance Initiative implies that a large-scale collection of energy data from LEED® buildings will improve energy performance. This suggests a response to escalating criticism about the actual energy use of LEED® certified buildings compared with all others. Why do few published stories about these buildings include metered energy and water use data? If these buildings can waste energy efficiently, perhaps one answer is not to include those measures that allow that to happen.

The reality is that neither predicted nor actual measured energy use determines whether a building is energy efficient. Nor does energy use alone determine whether a building meets or exceeds all required or desired criteria, or provide the accountability necessary to achieve those results.

I have been collecting and evaluating detailed metered and measured building energy performance data for 40 years. Collecting the data is one thing, even if done completely and correctly. However, evaluating the data and then making comparisons among buildings is something else. Buildings alone do not use energy. The occupants, operators, and systems do.

In an extreme case, look at apartment buildings where each apartment is identical, and the metered energy use per apartment can easily vary by 2 or 3 to one, or more. Individually metered floors in office buildings occupied by the same company or tenant also can vary by 2 or 3 to one.

The functions in a building can also have a major influence on building energy use. The presence of a laundry in a hotel or hospital can make a 25 to 50% difference in total building energy use per bed, room, or square foot compared with an identical building on the same street.

Buildings with intermittent occupancy present similar dilemmas. How does one estimate, predict, or compare the energy data for two identical churches on the same block built at the same time, when one is only occupied for a few hours each Sunday and on some holidays, and the other is occupied most days of the week?

Comparing metered energy use to modeled energy data is not a valid measurement of anything. If the modeling and estimating methods were sufficiently accurate, utility companies would not require the use of meters.

Some articles I wrote 25 years ago show apartment by apartment or office floor by office floor metered energy use data in the same building. For another good example, look at the range of energy data for any given building type shown in the statistically significant quadrennial CBECS reports, collected at a cost in eight figures.

That reminds me of an energy research project 35 years ago during the 1970’s energy crisis. The US Postal Service spent hundreds of thousand of dollars instrumenting and recording the detailed energy use in a large postal facility. The conclusion was that they could collect lots of data.

The answer in evaluating and comparing energy data is using professional judgment and experience. That involves knowing and understanding not only the energy use and particulars of the subject building, but also the energy use and particulars of comparable buildings in the area. Comparing the energy use of a suburban office building in Boston with suburban office buildings in Providence without knowing the particulars is not likely to be meaningful or conclusive. This is much like the commercial real estate appraisal profession.

I think that there are a few important things to consider here. First, in USGBC’s Building Performance Initiative press release, LEED Senior Vice President Scot Horst notes that “[p]lenty of people are content to simply point to these longstanding issues [relating to LEED building performance] without offering a constructive way to address them. We’re going to take them on and engage practitioners and thought leaders alike in establishing a national roadmap to optimize building performance.”

After last fall’s Greenbuild, I suggested over at gbNYC that, if USGBC was serious about improving the energy performance of LEED buildings, it needed to engage building scientists such as Henry Gifford, Joseph Lstiburek, and Mr. Spielvogel in a meaningful way- certainly through more of an effort than simply collecting more data. As Mr. Spielvogel notes in his letter above, “[b]uildings alone do not use energy. The occupants, operators, and systems do.” This, of course, is what makes the type of predictive energy modeling on which LEED relies so imprecise and why project teams need to remain careful about the types of representations they make to their clients about the performance-related results of potential LEED certification. As Pat Murphy noted in a recent comment here at GRELJ, “[t]here is a crying need for accurate, verifiable and reliable energy rating systems. If LEED doesn’t fill the bill, other options will come forward.” I agree with Mr. Murphy and, in conclusion, would suggest that this is precisely what should give policymakers pause as they consider incorporating LEED- as currently constituted- into state- or local-level green building legislation.

• The Ugly, the Bad, & the Good: Thoughts on Greenbuild 2008 (gbNYC)
• Some Buildings Not Living Up to Green Label (NYT)
• Building Performance Initiative (USGBC Press Release)