Why Do Non-Public CIRs Mean LEEDigation?

If there was a LEEDigation doomsday clock, I would move it up about 5 minutes towards midnight based on the following decision by the USGBC.* 

Real Life LEED recently reported that the USGBC has decreed that, starting June 26, 2009, Credit Interpretation Requests (CIRs) will no longer be applicable to all projects: 

"Effective June 26, 2009, credit interpretation requests (CIRs) submitted by any registered project will no longer be vetted by USGBC or its LEED Technical Advisory Groups. As a result, CIR rulings will now be applicable only to the project that submitted them. For LEED version 2 projects, rulings on CIRs submitted prior to June 26, 2009, will be honored until they are retired by USGBC or incorporated into general USGBC-issued project guidance, such as through errata or addenda."

All you non-practitioners out there may be wondering what the heck a CIR is and why this matters.  The best way for me to explain a CIR is to compare it to case law. 

When you are talking to a client that is thinking about a lawsuit, one step you may undertake is reading up on case law.  You read case law to find a factually analogous situation to determine if your client has a good chance of winning. 

CIRs function the same way as case law.  To achieve LEED certification, a project must achieve a certain number of credits.  But the requirements for each credit are often open to interpretation.  To resolve this uncertainty, a technical advisory board evaluates each CIR to determine whether or not a credit should be granted.  Historically, USGBC has published these credit  interpretations to inform other builders and designers in future projects.  The first comment after the Real Life LEED post really hits at the importance of CIRs:

Wonder why they decided to do this, public CIRs help project teams immensely. They give good information on how the USGBC look at and interpret credits so that we could submit proper documentation or know what is and isn't acceptable strategies to meet the credits. I don't think LEED is in the stage where it is clear enough to not be interpreted several different ways.

You probably already see why LEEDigation is more likely without public CIRs.  Without public CIRs, architects, engineers and contractors are going to have more trouble interpreting credits and determining strategies that will successfully achieve a LEED credit.  As a result, the likelihood that projects will fail to achieve LEED certification increases dramatically.  As we've discussed, failure to achieve promised LEED certification leads toLEEDigation.

On Monday, we will look at why the USGBC had to do away with public CIRs.

But what do you think about this change? 

*To be clear, the USGBC had to make this business decision.  My post on Monday will go into more detail as to why this decision was necessary.

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Comments (10) Read through and enter the discussion with the form at the end
Christopher Hill - June 24, 2009 2:48 PM

Thanks for the post Chris. I agree with this point and am interested to see what business factors came into the mix with the decision. However, one way to avoid the issues (though add administrative cost for projects and USGBC) is to submit for CIRs on a case by case basis.

I see the real issue being in the negotiation of feasibility of the project without the available CIRS

Eli S. - June 25, 2009 7:28 AM

I'm not a litigator, but it seems to me that while USGBC's move may increase litigation between members of the project team, it reduces USGBC's own exposure to lawsuits. I would think it will now be harder for a project that is denied a credit to claim it relied on past CIRs to reasonably assume it would have been awarded LEED certification.

Christopher Hill - June 25, 2009 2:50 PM

Eli, I agree that this could lower both cost and exposure to USGBC. This includes the fact that USGBC gets money for every CIR request and can now get multiple payments for CIRs on the same topic. On the other hand, USGBC makes it very clear that CIR does not equal credit, even if the project follows the CIR, so I am not sure how big an issue that would cause.

Rich Cartlidge - June 25, 2009 2:55 PM

Eli,
I think you raise an excellent point. There is now a greater potential for litigation among the project team but less exposure to USGBC. I think that this decision will lead to some interesting intellectual property right disputes in the future where one project achieves a credit in a certain manner which is no longer made public and then the technique is copied on another job.

Chris Cheatham - June 25, 2009 3:00 PM

Eli S - That is a great point. The USGBC/GBCI is limiting exposure to potential lawsuits because no one will be able to claim that a previous project received a credit that was later denied.

Chris H - Also a good point, projects can avoid potential dispute by submitting as many CIRs as necessary. Of course, this will cost more money and may not always be possible within certain time constraints.

As to your other point, while CIRs may not guarantee a credit, I think you would be hard pressed to find a scenario where a CIR makes an unofficial ruling that is then overturned when the final project is evaluated.

Here is a question for everyone: what is the solution? I have a couple of ideas that I will highlight on Monday, but what do you think?

Christopher Hill - June 25, 2009 4:36 PM

Solutions? Well, aside from the submit for more CIRs than would be necessary under the old system, a contractual provision that allows escalation of costs based upon needs for CIRs? If a CIR is deemed necessary by the decision maker on the team (LEED AP, Architect (name it in the contract)), the project payments from the owner go up accordingly. Get clients to use back channels to see what their colleagues may have done? Generally, if a contract guarantees a certain point level then the team must do what is necessary or face issues. Therefore they should bid accordingly, thus increasing the price for everyone.

Tim Hughes - June 26, 2009 9:33 AM

The sad part for me is that this entire movement was structured around transparently improving the environmental quality of design and construction. Hiding available approaches and innovative solutions seems to run completely counter to the entire exercise.

On the exposure front, if they are hiding the CIRs, does this mean USGBC wants the flexbility to be inconsistent in its interpretations on projects?

On the other CIR point, submitting a ton of CIRs is fine, but why not be able to review the previous ones to see other compliance paths to success?

On a final point, it seems to open up the door to external information sharing amongst involved participants. If USGBC faces liability exposure flowing from inconsistent application and credit interpretation, hiding that effort from public view would seem to delay, not eliminate, potential claims. I am ultimately skeptical of how such a case would go in any event for a plaintiff, but I suppose that may flow from being grounded in Virginia's more conservative legal approach and it might work in other states.

Robert C. Newcomer - June 26, 2009 7:32 PM

If I am reading USGBC's statement correctly, they aren't "hiding" CIRs, just stating that they will not be bound by prior decisions. Although this increases uncertainty for project teams, it doesn't necessarily mean USGBC won't be consistent in how they rule on CIRs going forward.

Using the case law analogy, no two cases have the exact same set of facts and therefore litigators get to make arguments about why the facts in case A (favorable outcome) are more analogous to their facts than are the facts of case B (unfavorable outcome). I would like to hear from those who have lots of experience researching/submitting CIRs whether this same process plays out there? Did USGBC "split hairs" to distinguish a previous CIR that was accepted from a current CIR that they are rejecting?

At the end of the day, someone is going to go through past CIRs and decide whether a certain approach should be accepted given USGBC's previous decisions. If USGBC is consistent, no harm done. If USGBC is inconsistent AND there are no facts to support their decision, then I am not sure that USGBC has done all that much to really protect itself from potential legal claims other than to make plaintiffs work a little harder to prove their cases.

And I'd also love to know the revenue implications for USGBC flowing from this decision if project teams are now compelled to submit more CIRs for each project just to protect themselves.

Chris Cheatham - June 28, 2009 11:02 AM

Wow, this might be the best discussion regarding a post yet. Thanks everyone.

Tim - I wish I could answer some of your questions. I imagine we will hear something about this in due time. Great point regarding "external information sharing." I would not be surprised to see a rogue website setup where everyone submits CIRs for public review.

Robert - You raise an important question that I am not clear on. Will the CIRs continue to be published for all to review? Does anyone know the answer to this?

Tim Hughes - July 1, 2009 8:06 AM

I do not see anything on the USGBC site that answers the question. The language reported (although I did not see the e-mail itself) suggests they will not be available for review.

Robert -- I thought the USGBC position was always that the prior CIRs were for guidance but they were not bound by them which would suggest your interpretation would not be a change. "Available" seems to point to not being able to see it.

One other thought -- the very nature of the submittal (limited text, no documents, very tight framework) makes it more difficult to use factual distinctions to justify disparate treatment of CIR applications, particularly identical ones.

Maybe it is the cynic in me, but between classes, testing, on-going education requirements, memberships, multiple waves of CIR submittals of the same thing, this has a revenue enchancement feel to me.

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