Warning: This Post May Give You Green Building Legal Nightmares
For this Halloween edition of Green Building Law Update, I thought I would try to scare your socks off by describing circumstances that may lead to the green building legal apocalypse. Be warned, this blog post is going to give you nightmares!
Last week, Doug Reiser and I presented at the Green Legal Matters conference on the following topic:
"The Green Building Legal Apocalypse: Why Cities Should Stop Mandating LEED"
I have received a number of inquiries about the presentation so I published the slideshow. I am big on not using a lot of words or bullet points on slides so I am not sure how helpful the slideshow will be, but I am happy to answer any questions you may have about it in the comments section.
There is one central theme of our presentation: municipal governments should stop mandating LEED certification for private construction. I could run through all of the reasons - there is no proper enforcement mechanism, there will be increased LEEDigation - but in my mind, the creator of the LEED rating system, the US Green Building Council, makes the most powerful argument for not mandating private-construction LEED certification:
This picture is taken from the USGBC white paper, "Greening the Codes" (pdf). The hyphenated vertical line represents the current market. The updwards sloping, blue area at the bottom represents building codes. The dashed line above the blue area represents green building codes. Above the green building codes are LEED Platinum, Gold, Silver and Certified certification levels.
What does it mean?
If you need evidence that LEED certification was never meant to be a building code, and should not be a building code, use this picture. Building codes are the minimum. By mandating LEED certification for all private construction, a government essentially makes LEED certification a building code, a minimum. LEED certification is supposed to represent buildings that have gone beyond the building code. With this picture, the US Green Building Council is telling us not to use LEED certification for private-construction mandates.
LEED certification is a high bar, and if certification is mandated, not everyone will comply. Non-compliance means penalties, disputes and litigation. This is why I say governments that are requiring LEED certification for private construction are setting the stage for the green building legal apocalypse.
I appreciate your sense of reality on this
Thanks for posting the slides. I had a great time presenting with you on this topic. It was amazing to hear the responses of many, who agreed with us.
I believe that the existing codes define a very energy efficient building today. I agree with you about this subject. It does seem that most people in the engineering community do not agree with you. this includes ASHRAE which is a large proponent of the USGBC and the LEED process. It is hard to break since there are not enough people out there to speak aginst it .
It's great to see this message spreading. From a building design point of view, I haven't found it to be a high bar on the majority of projects I've been part of. A complaint I've always had about jurisdictions making this mandate is that the costs that go into the additional work (and sometimes consultants) for producing LEED documentation can be a drag on a project. Unless the owner is already using LEED proactively for marketing purposes, its a significant amount of money that would be better spent on improving the building.
Chris, this is a very timely post based off the research project I'm working on.
I completely agree that LEED should not be built into the codes. However, green building standards will be built into code, thereby limiting the importance of LEED.We'll likely see a convergence of all the various green building standards. LEED will live on as developers always need that extra stamp of approval.
I do see green building standards sort of limiting the progress of green building. Developers will simply meet the minimum threshold of green building.
How can you build green building standards in to code? What metrics will be used to verify green buildings?
Keep up the great work.
Insightful column, and I agree with you. Other reasons include potential for improper delegation of authority, inability of some cities to properly administer LEED, and a need to tailor codes to geographical locations for weather and other considerations. One question: I couldn't access your slides, or the USGBC report. Could you possibly email to me, or check the links? Thanks much!