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The LEED rating system was never meant to serve as a building code. Yet, cities and states are mandating LEED for private construction. This presentation describes how LEED private construction mandates will result in a green building legal apocalypse.
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Green Building Legal Apocalypse
Christopher W. Cheatham LEED AP, Esq.
Kyle Wilson
Douglas ReiserLEED AP, Esq.
Kyle Wilson
One Teaching Point:Cities must stop mandating LEED for private
construction
Agenda
• What is LEED? • Two LEED Legal Issues• LEED Mandates• Legal Issues + LEED Mandates =
Green Building Legal Apocalypse
What is LEED?
What is the US Green Building Council?
I’m not a government
body!
What is LEED (and green building)?
More acronyms?
I’m not a government body
either!
GBCI contracts to third parties
“GBCI is taking over those reviews directly, both through hiring to increase its own capacity, and through contracting with LEED reviewers. . . .”
-Environmental Building News,
July 6, 2010
3rd PartyLEED reviewers
Construction Completed
Can GBCI decisions be appealed?
• Appeal fees are $500 per credit. • All appeals of final review decisions must be
filed within 25 business days of GBCI's posting of the final review decision
• All appeals shall be conducted in accordance with the GBCI Appeal Review Policy
Who is responsible for LEED certification?
If a city mandates LEED…
…a non-governmental entity determines compliance with no
independent appeal
LEED Legal Issues on the Horizon
Challenges and Decertification
LEED Certification Challenges
9.2 Certification Challenge Overview:
“GBCI may initiate a certification challenge thereby revisiting its determination that the submitted documentation properly demonstrates that the project satisfied all credits, prerequisites, and MPRs necessary to achieve the awarded level of LEED certification.”
“Based on the final determination of such a challenge, GBCI retains the right to reduce the level of LEED certification awarded or revoke an award of LEED certification altogether.”
LEED Certification Challenges
9.2 Certification Challenge Overview:
“A project owner may defend against such certification challenge by electing to participate in the process described below.”
9.3 Basis for an Initiation of a Certification Challenge
“GBCI encourages third parties who wish to make a complaint, or bring to light information affecting the grant of LEED certification . . . .”
LEED Certification Challenges
Who will challenge?
Angry mobs
Business competitors
The First LEED Challenge• Northland Pines
High School
• LEED Gold in 2007
• Challenge filed in 2008
• Alleged non-compliance with ASHRAE 90.1 and 62.1
The First LEED Challenge
In the process of its review, USGBC engaged two extraordinarily qualified engineering consultants (Taylor Engineering and Horizon Engineering) to review the technical merits of the prerequisites and credits in question.
Further, USGBC staff performed a site visit of the school.
-Susan Dorn, USGBC General Counsel
LEED challenges
will be expensive…
LEED Decertification
Decertification police seizing a
LEED plaque
The problem: many LEED buildings are not performing as modeled
The Solution: LEED Decertification
[USGBC CEO Rick] Fedrizzi predicts that data will be used to enforce performance in the future.
"Once a LEED plaque is assigned to a building, and there is proof that the building is no longer performing the way that it should, there's a very good chance that that information will then result in the ability for USGBC to remove the certification from the building — most likely on our website," he says.
-NPR, Sept. 8, 2010
Challenges+ Decertification= LEEDigation
LEED Mandates
Various initiatives (mandates, incentives, and other legislation):
43 states384 cities/towns58 counties 14 federal agencies
LEED Policy
D.C. Green Building Act
January 1, 2012Private construction > 50K SF LEED certified
What’s the enforcement mechanism?
D.C. Green Building Act“(b) On or before January 1, 2012, all applicants for construction governed by section 4 shall provide a performance bond”
“(g) All or part of the performance bond shall be forfeited to the District and deposited in the Green Building Fund if the building fails to meet the verification requirements described in sections 3 and 4.”
D.C. Green Building Act
Baltimore City
Green Building Legal Apocalypse
Greening the Codes, USGBC
LEED mandate+ Enforcement Mechanism= LEEDigation
Projects will fail…
Shaw Development v. Southern Builders
Shaw retained Southern Builders to construct $7 million condo project
Shaw sought LEED Silver certification
Projects have failed…
Shaw Development v. Southern Builders
The Contract
Shaw Development v. Southern Builders
The Contract
Shaw Development v. Southern Builders
The Allegations: Breach of Contract
Shaw Development v. Southern Builders
The Allegations: Negligence
Shaw Development v. Southern Builders
The Damages
One Teaching Point:Cities must stop mandating LEED for private
construction
1. Who is responsible?2. LEED is not a building code3. LEEDigation
Visit Our Blogs
Green Building Law Updatehttp://www.greenbuildinglawupdate.com
The Builders Counsel Blog http://blog.reiserlegal.com/
Kyle Wilson
Contact Us
Christopher W. CheathamLEED AP, [email protected]
Douglas ReiserLEED AP, [email protected]
Kyle Wilson
