I have been working with the D.C. City Council recently on revisions to the D.C. Green Building Act of 2007. In particular, I have been looking for an enforcement mechanism that can be used to ensure compliance with LEED certification requirements for commercial buildings. The problem is that the current Green Building Act requires a "performance bond" to guarantee certification. Green Building Law Update has covered the issued extensively and you can read more about it here.
My research has led me to one conclusion:
A security instrument guaranteeing LEED certification is the unicorn of the green building industry.
First, and most importantly, unicorns are mythical creatures. A security instrument that guarantees green building certification is also a mythical creature.
Let me make this clear: no bond or insurance instrument has been created that guarantees green certification. This type of security instrument does not exist. I have discussed the issue with sureties, surety industry groups, insurance companies and insurance brokers. None of them know of a security instrument that guarantees green building certification.
You know what? Everyone would love to have a unicorn (maybe not, but bear with me). Similarly, everyone would love for a security instrument to exist that guarantees green building certification. This instrument could be used in the hundreds of states and localities implementing green building regulations and the innumerable residential and commercial green building contracts being signed nationwide. Unfortunately, this instrument does not exist and is years away from being developed.
So if you are drafting a green building regulation, do not include the word "bond," "security" or "insurance" as an enforcement mechanism for a green certification guarantee. You might as well just include the word "unicorn."
Photo: Martyn and Debz