First, here’s the language from Mr. Carson’s article which appears to have generated the controversy:

“As reported by the Villas County News-Review, a group of Wisconsin residents filed a 125-page complaint with the USGBC challenging the award of the LEED Gold certification to Northland Pines, which is generally credited as the first certified LEED Gold high school. The challenge was based on a little discussed provision in LEED 2009, which reserves the USGBC’s ability to revoke certification a project that fails to meet the program’s ‘Minimum Program Requirements,’ which include requirements for minimum occupancy rates, site boundaries, and information-sharing about the project’s energy and water usage for five years after certification. It was reported that the USGBC sent independent examiners to Wisconsin to conduct on-site tests at Northland Pines to determine the project’s qualifications for LEED, and that a final determination on the school’s eligibility for LEED would be decided in early 2010.”

Note the bold language (my emphasis) which is not correct; the challenge is not based on any provision in LEED 2009′s Minimum Program Requirements. Rather, the Northland Pines High School was certified under LEED Version 2.1; unlike LEED Version 2.0, the former version required projects for the first time to satisfy every prerequisite of each credit category in order to earn certification. (Previously, under Version 2.0, projects could still earn certification even if they did not satisfy the prerequisite for each individual credit category). The appellants’ specific allegations relate to the project design’s alleged failure to satisfy certain Energy & Atmosphere prerequisites, which, if accurate, would be grounds for USGBC/GBCI to revoke the school’s Gold certification. In early February, a USGBC spokesperson responded to Mr. Carson’s article with some very general clarifications in an insert in Engineering News-Record (which stated, among other items, that Mr. Carson’s piece contained “several inaccuracies, causing unnecessary anxiety in the marketplace”).

In the Multifamily Executive article, which dates from last month, USGBC’s Scot Horst further responded to Mr. Carson’s article as follows:

“‘The idea that there is this new thing call decertification is inaccurate,’ says Scot Horst, USGBC’s senior vice president for LEED. ‘The way LEED works is we have a rating system; you send us information about your project, and we certify to that. But let’s say that there was someone out there who lied about the prerequisite information or unintentionally provided inaccurate information. We have always had a policy to go back and say this wasn’t what it was represented to be. That is nothing new.’”  (emphasis added).

As far as decertification is concerned, USGBC and GBCI have clearly reserved the right to revoke certification from projects that fail to satisfy the Minimum Program Requirements. While that may not be any different from what the organization has been doing all along (hence the question mark in the title to this article), the introduction to the LEED 2009 MPR Supplemental Guidance document (Version 1.0, November 2009) clearly states on page 3 that “[i]f it becomes known that a LEED project is or was in violation of an MPR, certification may be revoked, or the certification process may be halted. These situations will be handled on a case by case basis according to GBCI’s challenge policy.”  However, it appears that the confusion over “decertification” stems from a conflation of a LEED project owner’s failure to report performance data with LEED buildings that actually perform poorly. Consider these remarks from Multifamily Executive:

“The fear of decertification likely stems from one of the Minimum Program Requirements (MPRs) of LEED 2009. The MPRs, which apply only to projects seeking certification under LEED 2009, list the basic characteristics that a project must possess to be eligible for certification under the LEED 2009 rating systems. Requirement No. 6 states that “all certified projects must commit to sharing with USGBC and/or GBCI [Green Building Certification Institute] all available actual whole-project energy and water usage data for a period of at least five years.”

But the information collected under MPR6 is for research purposes only and won’t be used to penalize project teams with buildings that do not perform as well as intended, according to the LEED 2009 Supplemental Guidance document published in November 2009.

‘MPR6 specifically is an exercise to improve the future iterations of LEED rather than to strip the certification from prior program participants and all information remains confidential,’ says USGBC communications manager Ashley Katz. ‘LEED certification is granted based on a building’s design and construction at the time certification is sought. LEED certification does not evaluate the ongoing operation or maintenance of a building—there are too many factors that have to do with how the building is operated.’”  (emphasis added).

I think it’s also worth repeating here that there is absolutely no connection between the Northland Pines proceeding and the Minimum Program Requirements that generated the initial buzz about decertification last summer. (However, it is important to note that the Northland Pines certification challenge appears to be taking place under the GBCI Certification Challenge Policy, which did not exist at the time the high school earned LEED Gold. The general lack of transparency about this process is troubling, but I am willing to give USGBC/GBCI the benefit of the doubt until we get a decision on the challenge before passing final judgment.  For example, will the organizations make certification challenge materials available to the public for third party review? If not, what about down the line in jurisdictions where public money is funding LEED projects whose certifications may be challenged? If for no other reason, the Northland Pines proceeding is critical for practitioners to keep an eye on from a procedural, legal perspective, as it appears USGBC and GBCI have not previously confronted such a serious challenge.)

Also, note that the LEED 2009 MPR Supplemental Guidance document states on page 27 with respect to MPR No. 6 that “this MPR does not intend to penalize project teams with buildings that do not perform as well as intended or create insurmountable technical or legal barriers to registering a LEED project.” (emphasis added).

With respect to this latter point, you will recall that MPR No. 6′s requirements to share whole-building performance data “must carry forward if the building or space changes ownership or lessee.” Page 27 of the Supplemental Guidance document (under “Specific Allowed Exceptions”) notes that

“[t]o own a LEED certified project is to participate in the ongoing evolution of the green building movement. In that spirit, and in keeping with the intent of this MPR, the owner’s commitment to provide whole-building energy and usage data is expected to carry forward to the next owner if all or part of a LEED certified project is sold, re-assigned, or otherwise transferred. However, it is recognized that this may not always be possible, and GBCI will respect the realities of situations in which reasonable efforts to maintain the commitment are not successful. In this situation, the initial building owner will no longer be required to provide the data or access to the data.”

So, although the concept of USGBC/GBCI policing their buildings for MPR enforcement will remain an issue, and practitioners will still need to understand and translate MPR requirements into contract documents and leases, some of the initial concerns about LEED 2009 decertification raised both here at GRELJ and elsewhere may turn out to be unwarranted.

Finally, here’s what Horst had to say in Multifamily Executive about Northland Pines:

So what’s the deal with the LEED Gold-certified Northland Pines High School in Wisconsin referenced in the Business Journal as potentially facing decertification? “We are reviewing the project to make sure that what was represented in the [LEED] documentation was accurate,” Horst says. “That is consistent with what a good certification program would do.” He declined to comment on who brought the project to the USGBC’s attention for review.

As far as the current status of the Northland Pines proceeding goes, I am told that the complaint (which was filed in late 2008, according to USGBC as quoted in ENR) is still being evaluated by USGBC, GBCI, and their technical consultants.

As always, we’ll continue to update you on this critical story.

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)

However, I think it’s important to look at the specific language that provides for decertification in LEED 2009, which reads (in part) as follows: “certification may be revoked from any LEED project upon gaining knowledge of non-compliance with any applicable MPR.” (emphasis added). The way I read this language, USGBC/GBCI is not obligated to revoke certification upon learning of non-compliance, but it is not restricted from receiving information regarding non-compliance from any third party. The question then becomes what, if any, obligations USGBC/GBCI may have to use that information and pursue a decertification proceeding, either conferred elsewhere in the LEED rating system itself or otherwise imposed by law. I don’t know the answer to that question, but perhaps Ujjval or others could chime in below in the comments. I think this is an absolutely critical point to dissect.

Also of import in the ENR article with respect to the MPR requiring access to building performance data (which has been the MPR driving much of the risk discussion here at GRELJ and elswhere), Duane Morris construction attorney Ed Gentilcore emphasizes that “[w]hat was once an initial project-performance milestone now has ongoing tail responsibilities that could create extended obligations for the owner itself and possibly, in turn, design and construction teams.” In addition, Scot Horst told ENR in the same article that the organization is “still developing the best and easiest ways to help owners do this. This is a new requirement and there is a lot to work out over time.” He declined to tell ENR when any addenda to the MPRs might be released.

I think it’s clear that the contract challenges and corresponding risks associated with the new LEED 2009 MPRs are just begin to emerge, particularly if USGBC and GBCI release a second addenda to a document that was just released a few months ago.

• Building Rating System Requirement Raises Concerns (ENR)