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This article of mine was published in the July 2009 issue of the Tennessee Bar Association - Environmental Law Section newsletter. Comments?

Potential Pitfalls of the LEED Certification Process
By Brian Woodroof

As a LEED Accredited Professional in the architectural field, I am generally considered to be the go-to guy in the office when it comes to issues of green building. I take protecting the environment seriously and am fully aware that my profession is often at odds with that stance. After all, the greenest building is one that is never built. Of course, strict adherence to this stance puts me out of a job, so I tend towards a middle ground. I attempt to keep up with the rapidly evolving green building industry and do my best to keep others aware as well. Fortunately, I do take off the green tinted glasses on a regular basis. This is especially valuable considering some of the legal pitfalls that lie in wait for all those involved in a LEED project, whether they are the owner / developer, the architect / engineer, or the realtor / broker / marketing person.

For those few that have not been introduced to the LEED rating systems, LEED is the acronym for Leadership in Energy and Environmental Design. According to the U.S. Green Building Council’s website, it is “a third party certification program and the nationally accepted benchmark for the design, construction and operation of high performance green buildings.” Developed by the U.S. Green Building Council in 2000 through a consensus-based process, LEED serves as a tool for buildings of all types and sizes. LEED certification offers third-party validation of a project’s green features and verifies that the building is operating exactly the way it was designed to.

LEED is a point-based system where building projects earn LEED points for satisfying specific green building criteria. Within each of the seven LEED credit categories, projects must satisfy particular prerequisites and earn points. There are 100 base points; 6 possible Innovation in Design and 4 Regional Priority points.

The five categories include Sustainable Sites (SS), Water Efficiency (WE), Energy and Atmosphere (EA), Materials and Resources (MR), and Indoor Environmental Quality (IEQ). An additional category, Innovation in Design (ID), addresses sustainable building expertise as well as design measures not covered under the five environmental categories. The number of points the project earns determines the level of LEED Certification the project receives. LEED certification is available in four progressive levels according to the following scale:

Certified 40–49 points
Silver 50–59 points
Gold 60–79 points
Platinum 80 points and above

It is a mostly voluntary standard, and I emphasize the mostly voluntary aspect because the federal government, along with a number of state and local governments, have mandated that all new construction be certified under the LEED program. This mandate, along with over zealous claims by owner, architects, contractors, and marketers / brokers, have opened up a Pandora’s box of problems that those involved should be cautious about.

The majority of potential issues arise from the simple fact that the LEED program is a third-party verification of green building achievement. The design team submits documentation showing how they have met the various criteria for the program with their design while the contractor does likewise. After review of the submitted material is complete, a certification level may be awarded.

In attempting to land the project, an architect may promise the client that the yet-to-be-designed building will achieve a certain LEED certification. He may even write the LEED level into his contract. Everything is fine if the building meets or exceeds the claim. But what happens if it doesn’t achieve the promised level? Was the failure due to the architect’s poor design or was it due to a failure on the contractor’s part in construction? Did the initial design come in over budget necessitating value engineering that cut out some of the aspects of the project that were to be used to achieve a certain certification? How about an owner, developer, or marketing person who claims that a project is certified to a certain level when it has not even broken ground? Certification occurs after the building is complete, not before. All parties involved should be extra careful when making claims that rely upon third-party verification.

This pitfall does not only appear during initial negotiations, but throughout the project. Many of the LEED documentation forms have the submitter “assert”, “verify”, or “certify” that the design, construction materials, construction technique, or system performance meets or exceeds a certain standard. Any professional liability insurance agent will warn you to never use those words in regards to a project because they expose you to additional liability in the event something goes wrong. They will also warn that doing so will remove your liability coverage, leaving you solely at risk.

The LEED certification process has a cost associated with it of anywhere from 2 – 10% of the overall construction cost. This is fine as long as it is a voluntary achievement. But when it is mandated, it raises the hackles on those who have to cough up the premium for a project, especially when they do not support the measure.

The State of Florida found this out last year after it mandated that all public buildings built after July 1st of 2008 meet green building standards. The wording of the law was such that it applied not only to state-owned buildings, but also to county, municipal and school district facilities.

The city of Boynton Beach challenged the new law and threatened legal action, taking umbrage at being required to cover the additional costs. The Mayor was quoted in Fort Lauderdale’s Sun Sentinel as stating, “If they want to give us that, give us the money.” Nothing has become of it so far, but how long before it will no longer be a matter of grandstanding and legal action is actually taken? As more jurisdictions begin to implement some form of green standards, the chances of litigation will grow.

Although I am a firm proponent of green building with the accreditation to prove it, I do not advocate that clients or colleagues jump headlong into the process without being aware of the potential pitfalls. My conscience however, dictates that I must not let the potential dangers keep me from doing what is needed by doing my part to conserve and protect the environment that sustains us. This concern is particularly prudent considering that there is not yet a legal history surrounding LEED certification and for now it is a bit of a murky area. Eventually, the legal terrain will be worked out, but until then caution is definitely warranted.

Brian Woodroof is a LEED Certified Architect Intern at Michael Brady, Inc. in Knoxville.

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June 2011

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