Cranks, Gadflies and Rivals Can Challenge LEED Status
A few weeks ago, after a green building legal presentation, I remarked to a colleague that I was growing tired of discussing Shaw Development v. Southern Builders, the prime example of LEEDigation. Less than one week later, along came the Wisconsin LEED challenge and the discovery of the LEED Certification Challenge Policy. The LEED Certification Challenge Policy is the most significant legal risk for LEED certified projects that I have seen to date. You may recall the discussion of Minimum Project Requirements last year and the possibility of LEED decertification. The risks inherent in the LEED Certification Challenge Policy substantially dwarf the LEED decertification issue.
There are three reasons why the LEED Certification Challenge Policy creates new risks for all parties involved in a LEED-certified project:
(a) Any person can challenge certification;
(b) Any and all LEED points can be challenged; and
(c) A LEED certification challenge can be brought at any time.
Lets start with "anyone can challenge certification" - i.e. standing to bring a LEED challenge.
In order to bring a lawsuit, most American courts require a person to have standing. A person has standing if he or she can show three things:
In order to bring a lawsuit, most American courts require a person to have standing. A person has standing if he or she can show three things:
(1) Injury - the person was harmed;
(2) Causation - the injury was caused by the conduct of the other party; and
(3) Redressability - a favorable court decision can remedy the injury.
Under the LEED Certification Challenge Policy, any person can challenge any project's LEED certification without demonstrating additional standing requirements. Here's the key language from the policy:
"Persons concerned with possible inaccurately granted LEED certification are encouraged to contact the GBCI, provided however that GBCI reserves the right to institute an investigation and review of such possible errors or inaccuracy or veracity of documentation without third party complaint.
Person desiring to make a complaint may submit a written statement identifying the person alleged to be involved and the facts concerning the alleged conduct. . . . The person making the complaint shall identify him/herself by name, address, and telephone number."
As Will Clark recently put it, this opens the door to for "cranks, gadflies, or rivals" to bring LEED challenges. Here are some examples of "persons" likely to bring LEED challenges:
- Environmental groups could challenge a corporations' achievement of LEED certification in order to protest corporate actions.
- Concerned citizens could challenge local projects' LEED certification if the citizens want a greener project or a less expensive project.
- Rival developers could challenge each other's LEED certification in order to develop a business advantage.
The possibilities for "persons" that will bring LEED challenges seem limitless. What other examples can you come up with?
Related Links:
Shaw Development v. Southern Builders (GBLU)
Northland Pines High School LEED Challenge (GBLU)
This Post is Really Imporant and Not For the Faint of Heart (GBLU)
Will Clark on Twitter (Twitter)
Chris: While I agree that GBCI has left the door open, the timing of LEED certification should discourage many appeals. My primary focus is representing developers and property owners in permitting. In that process, once the building is up, a lot of the enthusiasm for appeals among opponents is gone. That should knock out all but the most committed activist groups.
Rivals and environmental groups could carry on appeals even after the project is complete but there are disincentives there, too. Environmental groups will need to be careful to target their appeals on real bad actors, lest they appear too doctrinaire. Rival building owners will need to gage just what a victory provides against both the blowback and the cost of pursuing the appeal itself.
I look for most conflicts to be among rival design professionals or suppliers, and for the LEED certification fight to be one battlefield in a larger competitive conflict among those kinds of players
Cliff
Cliff - thanks for the comment, although I am not sure I entirely agree.
Correct me if I am wrong, but when a building goes up, there is little incentive to challenge the permitting because the building still exists and will be used.
LEED challenges on the other hand can result in a building's certification being stripped. This is a tangible result that will be tempting to many interested parties.
Chris: My comment assumed that the majority of the value of certification would come around the time of the initial certification itself. To the extent that certification and maintenance of that certification are required either by an incentive program or by private agreement, certification challenges could make sense to a rival owner.
I think the incentive to challenge will be based on the value of continued certification that the challenged project enjoys.
Cliff
The lack of a standing requirement may, in and of itself, be subject to a legal challenge at some point. Why can a disinterested person be able to run up a contractor's legal fees just "because"? I can see this being stricken or modified based on constitutional grounds at some point.
Great points Chris as always!