The Green Building Certification Institute (GBCI) has changed the way it handles challenges to certifications it issues under the Leadership in Energy and Environmental Design (LEED) program. While the full implications of the new process may take some time to be known, it is certain that the GBCI has responded to widespread process critiques, fixed one major issue, and made significant progress on another. These changes to the challenge procedure reduce or eliminate a significant unexpected Achilles heel in the LEED certification process.
Impetus for Change?
For some time, the GBCI has allowed challenges to certifications it issues. Few were aware of this process until a challenge of the LEED Gold certification awarded to Northland Pines High School in Eagle River, Wis., erupted onto the national landscape.
A challenge was filed by individuals who claimed the school failed to meet the prerequisites for complying with 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. After an extended process of design and documentation review, including retention of experts to review the project and related documents, the U.S. Green Building Council (USGBC) upheld the certification. (For more on the appeal, see "Appeal Raises Questions About LEED Certification" by Gina Vitiello, LEED AP, HPAC Engineering, August 2010.)
Even before the Northland Pines case, individuals had raised concerns about the LEED challenge process. Among the criticisms was that it contained no time limitations. This meant a complaining party could object to a certification into infinity. Further, the challenge process did not restrict who could file a challenge.
While the need for a process for challenging illegitimate certifications seemed self-evident, failing to include time or party limitations was an invitation to disaster. Development projects typically face significant neighborhood opposition. Builders, developers, and contractors operate in a sharp-elbowed, competitive environment. These realities are even more intense in the current economic climate. The lack of limitations on complaining parties invited disappointed bidders, project competitors, and frustrated neighbors to attack projects using the challenge process.
Comparing this open-ended process with the legal system is instructive. All states have statutes of limitations that limit the time parties may sue. The law generally requires parties to demonstrate they have an actionable interest. In layperson's terms, they have to show they have "a dog in the fight."
New Challenge-Process Language
The new policy manual contains some interesting tweaks that hopefully will close the truck-sized holes pointed out during the Northland Pines fallout, including:
Addressing the problem of an unlimited timeline, the new manual states, the "GBCI shall not open a formal investigation related to any project beyond two years after the date the project is awarded LEED certification."
Addressing the problem of no restrictions regarding who can file a challenge, the new manual states, "Parties seeking to submit a complaint ... must have personal knowledge of any event or condition that would prevent a project from satisfying a particular credit, prerequisite, or MPR." This is not a standing requirement per se, but it at least limits the parties who can file challenges.
Perhaps the most interesting aspect was that these fixes occurred virtually under the radar. While green legal bloggers knew the USGBC and the GBCI understood the standing and timing concerns and were considering a fix, there was no advance or even after-the-fact announcement. The GBCI simply issued a new policy manual, without telling the public. I found the updated policy because I was writing an article about the holes in the old challenge process and needed to find the Web link for the old manual. When I realized the old link was broken, I dug up the new link and the unannounced policy.
While the lack of clarity and publicity raises an eyebrow, the responsiveness of the USGBC and the GBCI to fix identified problems is laudable. It appears the GBCI has heeded the very reasonable concerns raised regarding the complete free-for-all the original procedure invited. Time will tell how the newly defined challenge process will play out.
Timothy R. Hughes, Esq., LEED AP, is of counsel for Bean, Kinney & Korman, a law firm serving Washington, D.C.; Maryland; and Northern Virginia. A construction, real-estate, and business attorney, he was recognized as a 2010 "Leader in the Law" by Virginia Lawyers Weekly. The lead editor of the "Virginia Real Estate, Land Use & Construction Law Blog" (www.valanduseconstructionlaw.com), he can be reached by phone at (703) 525-4000, e-mail at firstname.lastname@example.org, and Twitter at @timrhughes.
The GBCI Responds
HPAC Engineering asked the GBCI why its policy regarding challenges to LEED certifications was changed with so little fanfare. Bruce DeMaine, vice president of certification for the GBCI, issued the following statement: "The certification-challenge policy is part of our quality-assurance program and is not a mechanism for dispute resolution among third parties. It provides a channel for informed parties to make GBCI aware of issues which may affect project-specific certification decisions that might otherwise not come up during the course of our review."
DeMaine encouraged readers with questions to contact him at email@example.com.