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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