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:
(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?
Will Clark on Twitter (Twitter)