The U.S. Green Building Council
(USGBC) has issued several versions of its LEED rating system, with the current version, called LEED v3 or LEED 2009, taking effect in spring 2009.
In order to become LEED certified, a project must comply with certain mandatory minimum program requirements (MPRs) and mandatory prerequisites. Additionally, its certification level (Certified, Silver, Gold or Platinum) depends on the number of credits the project earns.
Once LEED certified by the USGBC—and more recently by the Green Building Certification Institute (GBCI)—a project may be challenged and possibly have its certification revoked. In this process, often called LEED de-certification, there is no safe harbor. Any LEED project is subject to a LEED de-certification claim from third parties, the USGBC or the GBCI. For example, the GBCI may de-certify a LEED 2009 project for failing to comply with any applicable MPRs—with no refund of the LEED certification fees. Common Mandatory MPRs
MPR 1 indicates every LEED project must “comply with all applicable USA federal, state and local environmental laws and regulations [in force] at the time of design and construction.” Accordingly, if a third party or the GBCI can find any environmental law or regulation that was not complied with at the time of design and construction, then the project can be de-certified. There does not appear to be any discretion in this requirement.
MPR 6 indicates the GBCI may de-certify a project if it fails to:
- meet the required LEED timetables and is inactive for four years or more;
- meet a LEED version sunset date, which is six years from the close of registration for a LEED version (which may be cured by moving the project to the next LEED version); and
- meet the initial LEED application deadline, which is two years after a project reaches completion.
LEED de-certification claims that arise out of MPR 6 appear to be more justified if a project is not making progress toward finalizing its LEED certification. However, on a complex project that takes many years to complete, it may be unfair to threaten LEED de-certification for not meeting requirements that are more than six years old. A project can incur significant additional costs and time to comply with the next LEED version.
MPR 7 states every LEED project must “commit to allow USGBC access to all available actual whole-project energy and water usage data in the future for research purposes.” Further, this requirement must be carried forward to the next owner of the project if an ownership change occurs. Access must be granted within a year of achieving LEED certification. All projects with whole-project meters in place must comply with the requirement; exemptions are allowed only if no such meters are in place.
Making MPR 7 requirements binding upon subsequent owners may pose legal and practical difficulties. If this requirement gets dropped or is not agreed to during an ownership transfer, a third party or the GBCI could bring a LEED de-certification claim for failure to comply with this mandatory MPR.
In addition, the project manager, owner and submitters must be “truthful, forthcoming, and cooperative” to ensure LEED submittals are “accurate and complete.” Therefore, the project manager, owner and submitters have the burden in a LEED de-certification process to show the “veracity and accuracy” of LEED submittals for MPRs, prerequisites and credits. Also, in addition to de-certification, the GBCI may reduce points or LEED categories if credits or prerequisites were granted based on erroneous determinations or inaccurately or falsely submitted documentation.
First De-certification Case
In 2008, a group of Wisconsin residents and technical consultants challenged the LEED Gold certification of the Northland Pines High School in Eagle River, Wis., using the LEED de-certification process. When it was LEED certified in 2006, the school was “built for $115 per square foot, more than a third less than the regional high school construction average” and was “designed to be 40 percent more efficient than the ASHRAE 90.1-2004 baseline building,” according to the USGBC.
During construction, complaints arose about the efficiency of the HVAC system and other portions of the project. However, in late 2009, after extensive analysis and review, the USGBC staff and two third-party engineering firms upheld the school’s LEED Gold certification.
Criticism Leads to Revision
Many criticized the 2009 LEED de-certification policy for essentially allowing any person to dispute a LEED certified project at any time. In other words, there was no limitation on standing and no statute of limitations. Some worried business competitors could bring LEED de-certification challenges decades after a project was certified. If claims are brought years after certification, it is likely the records and memories of the contractors, design professionals and consultants who assisted with the certification process will be lost or incomplete.
On Sept. 17, 2010, the GBCI revised the LEED Certification Policy Manual for all LEED building rating systems except LEED for Neighborhood Development. The manual now requires claimants to “have specific personal knowledge of an event or condition that would prevent a project from satisfying a particular credit, prerequisite, or MPR,” and requires that detailed complaints be submitted “within two years of the award of LEED certification for a project.”
The new standing requirements and the two-year statute of limitations should give some peace of mind to building owners with LEED certifications and the contractors, design professionals and consultants who assist in the LEED certification process. However, revisions to the personal knowledge requirement may not go far enough. Theoretically, anyone could gain personal knowledge of an “event or condition” that questions a project’s LEED certification. Amending the process to add a stronger standing requirement, such as an allegation of actual damages suffered by the claimant, would be a gain for the construction industry.