Challenge shows certification requirements are open to subjective interpretation
Most members of the engineering and construction community understand the procedure for obtaining certification for a project under the LEED green-building rating system. Few, however, have had much reason to know the process of decertification.
The U.S. Green Building Council (USGBC) has handed down its first decision with respect to a third-party challenge to a LEED certification. It involves an appeal of the certification awarded to Northland Pines High School in Eagle River, Wis. Now, we must figure out how the challenge and the USGBC's response to it impacts the certification and decertification processes moving forward.
Following is a brief summary of the 126-page appeal (http://bit.ly/aPCQ0a):
On May 10, 2007, Northland Pines became the first public high school to be awarded Gold certification under LEED for New Construction & Major Renovations Version 2.1.
On Dec. 23, 2008, members of the Northland Pines High School Building Committee and concerned taxpayers, along with two engineers (Larry Spielvogel, PE, FASHRAE, and HPAC Engineering Editorial Advisory Board member Mark S. Lentz, PE), filed an appeal of the certification awarded to Northland Pines.
The appellants contend the design and construction of the school did not meet Energy & Atmosphere (EA) Prerequisite 1, Fundamental Building Systems Commissioning; EA Prerequisite 2, Minimum Energy Performance; and Indoor Environmental Quality Prerequisite 1, Minimum IAQ Performance.
More specifically, the appellants claim certain mandatory standards — namely, ANSI/ASHRAE Standard 62.1-1999, Ventilation for Acceptable Indoor Air Quality, and ANSI/ASHRAE/IESNA Standard 90.1-1999, Energy Standard for Buildings Except Low-Rise Residential Buildings — were not complied with and that there were numerous violations of the Wisconsin Administrative Code.
The appellants claim the violations of standards 62.1 and 90.1 could not have been corrected without a complete redesign of the HVAC system, which was never done.
On April 27, 2010, the USGBC issued a formal written response to the appeal, stating: “After extensive review, USGBC and its consultants have no reason to believe that the project failed to meet all of the LEED prerequisites and credits that it has attempted. Thus, USGBC will not act to revoke certification or disallow any prerequisites or credits.”
On June 5, 2010, the appellants issued an executive-summary response in which they criticized the USGBC for, among other things, relying on documentation and information obtained from the designers after the certification was awarded and using post-submission design and/or construction changes as a basis for compliance, suggesting the original submission for certification was inadequate to prove compliance with the prerequisites.
This appeal raises numerous issues concerning the LEED certification process that lawyers practicing in the green-building space have been predicting for some time. At a minimum, the appeal shows LEED certification requirements and processes are open to subjective interpretation and, potentially, arbitrary enforcement. In fact, in the appeal documents, engineers on both sides of the challenge made technical arguments to support their conclusions that the prerequisite standards have been either violated or complied with. This could open the door to many challenges to past decisions regarding LEED prerequisites and credits.
Also, it creates a significant precedent for future LEED challenges, as the after-the-challenge review of the LEED documentation clearly included documents and information not provided in the original submission. Conceivably, this could open the door to re-petitioning for particular points or ratings through submittal of additional documentation or changes in design post-LEED submission.
Because the LEED rating system is not law and is administered by a private organization, challenges to certifications or ratings are not subject to traditional legal procedures or venues. The USGBC controls the challenge process and essentially sits as judge and jury on whether projects meet or do not meet certification standards. There is no “appeal” of a USGBC decision to an independent authority. In fact, at this point, there really is no legal recourse against the USGBC for a LEED applicant or third-party challenger who disagrees with the USGBC's determinations. The only “check and balance” for the USGBC's credentialing decisions is the organization's reputation. If the USGBC begins to dilute its standards or ignore valid challenges, it runs the risk of losing the credibility it holds as the most predominant rating system in green building. Presumably, this is a big enough incentive to keep the USGBC from making arbitrary decisions on certification issues. Time will tell, as more LEED certification challenges are certain to follow now that the path has been made.
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One of the first attorneys in Georgia to obtain LEED accreditation from the U.S. Green Building Council, Gina Vitiello is a partner in the construction-and-commercial-litigation practice of national law firm Chamberlain Hrdlicka, representing clients in contract-negotiation matters, dispute avoidance/resolution, and litigation.
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