Ohio Environmental Law Blog : Ohio Environmental Lawyer & Attorney : Joseph Koncelik : Frantz Ward Law Firm : Environmental Regulation, Land Use, Compliance : Cleveland, Ohio

The New York Times reported on the controversy surrounding the energy performance of LEED certified buildings.  Studies have shown that many LEED building receiving certification actually poorly perform when it comes to energy efficiency. 

The Article points to a federal building in Youngstown, Ohio which would have failed to obtain U.S. EPA's Energy Star rating even though it was LEED certified:

The building’s cooling system, a major gas guzzler, was one culprit. Another was its design: to get its LEED label, it racked up points for things like native landscaping rather than structural energy-saving features, according to a study by the General Services Administration, which owns the building.

As documented, the latest version of LEED starts taking a major step toward addressing these two major issues:

1. Energy Performance- Should all LEED building perform to a certain standard
2. Decertification-  Should LEED plaques be removed from buildings if they fail to demonstrate performance over the life of the building

My reaction is that perhaps there is too big of a focus on the energy performance of a building.  As mentioned in the article, the building actually achieved its LEED status by performing in other areas. 

So should a building that does all the following be deemed not worthy of "green" status:

• Redevelops a contaminated brownfield property
• Reduces water use by 50% from basic standards
• Uses waterless landscaping
• Uses solar panels for energy
• Recycled materials from the prior building
• Purchased regional construction materials
• Has a plan for tenants to utilize ride-sharing and public transportation
• Other non-energy related enhancements

Aren't there significant environmental benefits to a redevelopment project that achieves all of these objectives?  Perhaps we need a different certification for these projects- Leadership in Environmental Design (LED) projects. 

I see the argument that buildings (and the energy they use) are one of the largest sources of greenhouse gas emissions due to their electricity use.  How can you say there is leadership in energy design when buildings don't actually perform well when energy audits are performed?  

But I come back to the same point- there are multiple ways to have environmental benefit.  Perhaps there needs to be different certifications for buildings that don't perform as well from an energy usage perspective.  However, stripping buildings of their "green status" when they may have had a host of environmental benefits seems extreme.

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With the launch of Leed Version 3, the U.S. Green Building Council (USGBC) has increased the rigor of certifications and even issued the threat of "decertification"- losing your building's green status.  USGBC has decided to throw only a pebble into the pond on this round- its still pretty hard to lose your building's LEED status. However, Leed v3 foreshadows a time when serious work will continue beyond the certification stage.

MPRs AND DECERTIFICATION

Right now USGBC only ties the possibility of "decertification" to a fairly innocuous list of Minimum Program Requirements ("MPRs").   After your building attains LEED certification it can lose that status if it fails to adhere to any one of the following MPRs (additional commentary based upon LEED website):

1. Compliance with environmental laws- New Construction..only up through certification. Existing building..its an on-going requirement;
2. Project must be a complete, permanent building or space- No movable buildings please..and it must the entire building;
3. Project must utilize a reasonable site boundary-  No gerrymandering please...you cannot shape your project in weird ways just so the project can qualify for points or meet a pre-requisite;
4. Building must comply with minimum floor area requirements- Must be a project involving at least 1,000 square feet.  No toll booths or kiosks;
5. Building must comply with minimum occupancy rates Must server at least one full-time equivalent employee...who the heck is worrying about certifying vacant buildings?;
6. Must share whole-building energy and water usage data- Share this information for 5 years and make it accessible through the web.  However, its not a performance standard; and
7. Project must comply with minimum building area to site area ratio- gross floor area must be no less than 2% of project boundary.  Who is certifying tiny buildings on large parcels?

Number six- the requirement to share energy and water usage data- was the most controversial, setting off some wild speculation.  Some worried that if their building failed to meet the projected water or energy usage projections it could lose its LEED certification.  This appears not to be the case.  

Preston Koerner wrote a good post discussing decertification on his blog JETSON Green.  Preston contacted the USGBC regarding the possibility of decertification based upon under performance on water and energy usage projections.  USGBC indicated that they just want people to share the information, decertification for failing to meet energy or water usage projections won't happen under LEED V3.

ENERGY AND WATER USAGE CONTROVERSY

There has been controversy over whether LEED certified buildings actually perform better than standard construction.  Recently, a study sponsored by USGBC found that on average LEED certified New Construction buildings used 24% less energy.  However, the study also showed some buildings are performing much worse than models predicted.  As an extreme a small number are even performing worse than if they just met basic code requirements.

While the study shows LEED generally results in improved efficiencies, the study also shows certification is no guarantee on performance.  So while right now USGBC is requiring reporting of statistic, it seems inevitable that it will move toward some form of performance standards and verification.

If you are interested in the controversy surrounding decertification, Matt DeVries at Best Practices Construction Law has done the best summary of the blogosphere debate over decertification.  A lot of folks are worried about the implications of just being required to track all the data.

However, if LEED certification is truly going to become the gold standard for measuring sustainable buildings doesn't the USGBC have to start verifying environmental performance of buildings?  I think at a minimum USGBC will require on-going verification if you want LEED certification of your existing building (post-new construction). 

TECHNOLOGY OPTIONS

As the requirements to track LEED elements becomes more rigorous, technology has tried to ride to the rescue.  Houston Neal wrote a good review of various software options for tracking LEED projects.  He asked that I take a look and provide any comments.   All I can offer is that most of the software seems to assist with document management as you building a project toward submission for certification.  What about adding features to help track performance post certification? 

FINAL THOUGHTS

To me the trend appears clear...USGBC is moving away from simple certification and toward verification of greenbuilding performance claims.  In otherwords, the LEED process doesn't end when the plaque goes up on the wall.

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On Monday I passed the LEED AP exam for New Construction after about a month and half of studying.  I can't tell you how relieved I was when the computer screen at the testing center had the word "PASS" on it.  After the U.S. Green Building Council's  (USGBC) launch of LEED v3, I am already known as a "Legacy AP" even though my accreditation is a mere three days old.  Even though the ink hasn't dried yet on my AP credentials, I'd like to make a few observations of LEED v3. 

USGBC  launched LEED v3 on April 27, 2009.  The new version includes changes to the scoring system for projects, the LEED accreditation process and the LEED on-line tools for administering projects.   There were three major changes made to the scoring process under v3:

• Harmonization- the new prerequisite/credit structure tries to take the various LEED rating systems (Core & Shell, New Construction, etc.) and equalize requirements for obtaining certain credits under each structure
• Weighting of Credits- greater priority was given under the scoring structure to energy efficiency and climate change
• Regionalization- new bonus points are awarded if your project achieves certain credits that are deemed priorities in the region the project is located

Bike Racks v. Brownfields

For new construction and major renovation projects, LEED NC v2.2 (old system) scored projects on a 69 point scale. Under LEED NC v2.2 achieving most credits you were awarded one point, which led to a great deal of criticism of the old scoring system. For example-

• Putting up bike racks- if you put some bike racks in front the building = 1 point
• Redevelopment of a brownfield- if you redeveloped a former brownfield with hazardous substance contamination that cost $4 million to address = 1 point

It was my hope that LEED v3 would address such inequities in the scoring system.  Unfortunately, it appears those still persist.  Perhaps I am partial to brownfield redevelopment, but I simply don't understand why LEED v3 still only gives 1 possible point for achieving this credit.  To me this was the single biggest oversight in the revamping of the LEED scoring structure.

With the release of LEED v3 USGBC tried to give greater weight to energy efficiency and climate change.  As examples, EA Credit 1 Optimize Energy Performance went from 10 total possible points to 19.  EA Credit 2 On-Site Renewable Energy went from 3 possible points to 7. 

I understand the prioritization of climate change and energy efficiency which really impact the overall life cycle of a building.  However, I come at this from an environmental perspective given my background.  To me we should be encouraging addressing thousands of historically contaminated sites that liter our urban landscapes.  Due to the significant costs and liability issues associated with brownfields, many developers stay away from these projects all together.  

LEED v3 offered an opportunity to better promote brownfield development.  My recommendation would to have been to provide at least 4 possible points for brownfield redevelopment.  This would be equal to the new scoring system available points for WE Credit 1 Water Efficient Landscaping. The points could be awarded based up on the remediation costs associated with the property.  There is a correlation between remediation costs and levels of contamination, which would mean projects addressing more extensive contamination get more points.

Regionalization

Perhaps my focus on brownfields stems from living in the industrial Midwest where numerous abandoned factories occupy our cities.  LEED v3 also incorporates a new bonus point pool to recognize regional prioritization.  A project can achieve up to 4 bonus points for achieving certain LEED credits.  This would mean brownfield redevelopment could get 2 points instead of 1.  Still not enough in my mind, but at least 2 is greater than just 1. 

USGBC has created a spreadsheet first separated by State and then by zip code for virtually the entire U.S.  You can go into the spreadsheet and look up the zip code for your project and there will be six credits that have been prioritized by local USBBC Chapters.  For example, in the Cleveland area here are the six prioritized credits:

1. Sustainable Sites Credit 6.1- Stormwater Quantity- reduction in rate and flow of stormwater post development
2. Sustainable Sites Credit 6.2- Stormwater Quality- implementation of controls to capture 90% of the flow and remove 80% TSS
3. Energy and Atmosphere Credit 2- On-site Renewable Energy- provide a minimum of 3% of energy needs from on-site renewable energy
4. Water Efficiency Credit 2-  Innovative Wastewater- reduce generation of wastewater by 50%
5. Materials and Resources Credit 2- Construction Waste Management- achieve reduction of 75% of C&D waste
6. Materials and Resources Credit 6- Use Rapidly Renewable Materials- 2.5% of the cost of materials used on the project should be from rapidly renewable construction materials

I scratch my head at these regional priorities for the Cleveland area.  I am certainly okay with promoting renewable energy, but there are other critical issues that face Cleveland.  Why not prioritize these credits?

1. Sustainable Sites Credit 3 Brownfields- The Cuyahoga County Commissioners Department of Development provides the following statistics about brownfields:

   [Based on a US EPA funded study]- Approximately 4,623 acres of brownfields in Cuyahoga County with the majority of that land located in the City of Cleveland and its surrounding inner ring suburbs. Cleveland, alone, has approximately 350 brownfields and an estimated 1,000 to 2,000 condemned structures. Additionally, the Cuyahoga County Planning Commission found that 40,000 acres, or 14%, of the County’s land, has at some time been devoted to an industry that has historically been known to be a higher risk for environmental contamination.

2. Sustainable Sites Credit 5 Protect and Restore Habitat and Maximize Open Space- it is really tough to find remaining greenspace in Cleveland.  It is estimated that 95% of the land in Cuyahoga County has been developed. The lack of open space/greenspace creates other issues such as flooding and stormwater control.  This would seem like a prime credit to be prioritized in the Cleveland Region.

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The Ohio House has introduced H.B. 7 which would require new construction be certified as a green building under the U.S. Green Building Council's LEED program.  Here is the text of the bill: 

Sec. 153.013. Whenever any building or structure is to be
erected or constructed using any state capital moneys, including moneys from the education facilities trust fund, the building or structure shall be certified as meeting at least the silver standard of the leadership in energy and environmental design green building rating system developed by the United States green building council.

What are the pro's and con's of advancing legislation requiring LEED certification? 

Pro's

• Good for the environment-the obvious...It encourages green building which reduces energy demand and is good for the environment. 
• Prepares the State for a carbon constrained and regulated world- Ohio ranks either 3rd or 4th in emission of greenhouse gases.  Commercial buildings, through energy use, constitute a significant portion of GHG emissions.  Ohio definitely needs to show more leadership in preparing for mandatory GHG regulation.
• LEED is a well recognized third party verification system for green building- More than 100 State (including Washington and Connecticut) and local governments have incorporated some form of LEED mandates into legislation or ordinances.

Con's

• It picks a winner- Why pick LEED when there are other well recognized third-party greenbuilding verification systems, such as Green Globes?
• The LEED system is revised frequently, the law is not- In 2009 the LEED system went under a major overhaul.  Ohio legislative principles do not allow incorporation of future changes to referenced standards.  Therefore, to keep up with the latest revisions the Legislature would be forced to revise the legislation.
• LEED system was and is not perfect-  The old version LEED 2.2 for New Construction awarded the same amount of points for putting in bike racks as it did if you redeveloped a contaminated brownfield.  Also, Ohio may want to encourage certain practices more than others set forth in the LEED rating system.

• Is Ohio delegating legislative authority?  The LEED rating system is developed by the membership of the U.S. Green Building Coalition, not a State Agency.  Therefore, Ohio would be passing along the authority to establish standards for new construction to a private entity that is not accountable to the public.  When similar Legislation was introduced in California, the Sacramento Bee called it a "two-pronged assault on democratic process that not only bypasses the usual procedure for making new law, but also transfers the regulations authorized by the new law to a private organization that’s completely unaccountable to the public.” (See, Is LEED Legislation-whether Public or Private-Undemocratic)

There is growing controversy regarding legislative mandates for LEED.  A recent study even suggested some LEED buildings are not performing at the level of energy efficiency promised. (See, Northeast Energy Sustainable Agency- "Legislating Greenness")

Henry Gifford has provided statistical proof, from US Green Building Council’s (USGBC) own data, showing that at least to date, Leadership in Energy and Environmental Design (LEED) buildings have on average proven to actually use more energy in their operation than comparable buildings.

I am currently studying for the LEED AP exam, so I have a strong investment and belief in the USGBC rating system.  However, I am not sure an outright mandate of a specific rating system is the way to go. 

Why not just specify in legislation that all government buildings must meet a level of greenbuilding certification specified by the Department of Administrative Services (or some other state Agency)? This would allow a more fluid process where DAS could adjust requirements to meet changes in the third party verification process.

(Photo: Payton Chung/everystockphoto.com)

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Have you ever heard of the irresistible force paradox?  What would happen if an irresistible force met an in-movable object?  I think this paradox may describe what will happen when the Obama Administration's environmental agenda meets the reality of the economy. 

Remember a few months back when oil peaked around $140 a barrel.  Of course you do...But do you also remember the momentum that the green movement due to the reality of limited resources and escalating energy prices.  Everything looks possible- a shift to renewable energy, energy conversation, higher gas mileage vehicles, and climate change legislation.

Now, only a few months later and oil is around $60-70 a barrel (I just filled up my gas tank for $1.90 per gallon)  We saw an economic meltdown the likes that has not been seen since the Great Depression.  How did this effect the momentum (the irresistible force) behind the Green Movement.  Let's take a sampling of recent headlines....

• Many Solar Energy Firms Likely to Fold During Economic Crisis- Analysts say nearly three-fourths of all solar energy companies could go out of business due to extremely tight credit, intense competition to produce solar panels, and falling prices.
• Local Government's Reconsider Costs of Green Building Mandates- The poor economy means tight budgets for most local governments.  This has forced local governments to begin questioning the costs associated with mandating LEED certification on new construction.
• T. Boone Pickens Places Wind Farm On Hold-  The dramatic drop in the cost of natural gas and the global credit crunch makes wind less competitive, according to Pickens.  As a result, he is putting on hold or scrapping plans for his massive 4,000 megawatt wind farm in Texas. (comment:  I guess Mr. Pickens is still a business man and not just motivated by getting us off of foreign oil)
• Renewable Energy Blues-  As reported in the Wall Street Journal, "when fossil fuel prices were soaring, things like offshore wind farms suddenly looked appealing, and guaranteed electricity prices from wind farms looked like a bargain. But with fossil fuel prices headed south and capital getting more expensive, renewables are losing some of their glow." (see also "Clean Energy Meltdown, Now GE is Bailing")
• Will EU Member States Use Economic Meltdown to Avoid Climate Targets-  When the economic crisis spread to Europe, the EU's ambitious goals on Climate Change were second guessed.  The current EU target of a 20% reduction in emissions by 2020 is set to automatically increase to 30%. Recently, Poland, Greece, Hungary, Slovakia, Romania and Bulgaria have opposed an increase in reduction targets.   Other EU countries are also second guessing their commitments. As reported in the Wall Street Journal, Germany’s foreign minister said recently: “This crisis changes priorities.” 

Exit polling from yesterday's election indicated that around 60% of the people who cast their vote made their decision based on issues associated with the economy.  After a quick search I could not even find where the environment ranked as a motivating issue.  I'm willing to bet it was a non-issue for the majority of the voters.

When the Obama Administration takes office and develops their environmental agenda it is likely to include: strong climate change legislation, renewable energy mandates, and policies that will not favor fossil fuels.  However, that Agenda will meet an immovable object that will likely cloud Obama's entire first term...the economy.  What emerges from the collision is anyone's guess.

(Photo: Flickr Transplanted Mountineer)

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