Green Building Law Update

Congress Restricts LEED Spending

It has been a rough year for Congress.  The Republican and Democrats, the House and Senate -- no one can seem to agree. 

Unless we are talking about green buildings. 

In June, I reported on the Department of Defense Reauthorization bill that passed the House of Representatives.  In the legislation, the Department of Defense was banned from pursuing LEED Gold or Platinum certification. 

But would the Senate agree to a similar LEED ban?  

As reported by Lloyd Alter at Treehugger, the Senate passed the House bill with an Amendment that did not mention LEED.  Thus, the Senate passed the House's LEED ban for DoD projects.  You can review the messy details at Thomas.gov.   

Here is the actual text of the LEED ban: 

 

 

 

 

 

 

What is the intent behind the LEED ban?  Is Congress concerned about the financial outlay for LEED certification?  Or is Congress trying to reign in the design and construction of plush government buildings? 

In fact, the intent of the LEED ban stems from a much more contested issue -- the wood wars.   One member of Congress explained that he supported the DoD LEED ban because he believes LEED inaccurately evaluates wood products

Sen. Roger Wicker, R-Miss., helped lead the effort to place the language into the appropriations bill on grounds that the Pentagon needed to think more about building products' green qualities over the course of their entire life--from the moment a product's raw materials are extracted from the earth to when that product's components are tossed out or, even better, recycled. This notion, called "life-cycle analysis," has been gaining much momentum in the green building community. And on this front, some groups--including the Green Building Initiative program, a rival to USGBC's LEED--have embraced life-cycle analysis.

"As the Department of Defense works to improve energy efficiency, it is important that its building standards be based on sound science and incorporate due process in their development and implementation," Wicker said in a statement. "Standards should take into consideration the full life cycle of wood products, including the environmental benefits provided by our domestic reforestation programs. After completing this study, the Department of Defense should use credible standards that more accurately assess U.S. wood products."

After reading that quote, I couldn't help but think of the fateful vote this past year when USGBC members shot down a LEED credit that would have recognized alternative wood certifications.  Under the existing LEED rating system, points are only allocated for wood products certified by the Forest Stewardship Council (FSC).  

I don't think I can overstate how important this LEED ban is for future green building policy.  For example, the Navy was the first federal agency to adopt LEED certification when it did so in 2000.  The Navy will have to rewrite its current LEED policies (or submit waivers for every project): 

The Navy continues to aggressively pursue sustainable development; in May 2011, the Secretary of the Navy announced that all Department of the Navy Military Construction (MILCON) projects will be built to LEED Gold standards. For FY11 and FY12, applicable MILCON projects shall achieve sustainable design and construction equivalent to or above LEED Gold, with certain exceptions. For FY 13 and later, applicable MILCON projects will be required to achieve sustainable design and construction equivalent to, or above, LEED Gold.

The DoD could certainly decide to continue pursuing LEED Gold and Platinum certifications.  But will DoD officials fight for LEED certification while other military programs are facing substantial cuts?  This legislation will likely have a chilling effect not only on DoD green building projects but also on other federal agencies.  Congress has clearly expressed an intent to not support LEED Gold and Platinum projects.  Don't be surprised to see agencies adopting the International Green Construction Code (IgCC) in lieu of LEED certification. 

Do you think federal officials will be willing to ask for LEED waivers? 

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Comments (6) Read through and enter the discussion with the form at the end
Stuart Kaplow - December 29, 2011 7:47 PM

Very good article. Forget the lawyer thing and consider journalism, .. and you are correct, it has been more than just whispered that the bipartisan effort that lead to this language in the Defense Authorization Bill is rooted in USGBC's ongoing certified wood disputes and differences.

It is clear that the action by Congress is also more than controversy over a bamboo floor at Camp Lejeune?

Maybe this Congressional action will help USGBC resolve the certified wood disputes and differences.

Barry Giles - January 5, 2012 12:45 PM

We must give praise where praise is due and realize that the military has taken a position by using LEED silver New Construction as their starting point for building operational improvements, and they can STILL DO THAT. But in reality LEED New Construction is somewhat of a waste of money and resources if you're trying to create high performing buildings. Wood is just a red-herring, it has nothing to do with operational performance. To be truly energy efficient and reduce operational cost you need RESULTS...especially as it is results that need to be passed up the military chain. For truly high performing buildings only LEED Existing Buildings provides the width and depth of results and sets in place the parameters that can be assessed year on year. The language here: "The report calls for an analysis of cost benefits, return on investment and long-term payback for LEED Silver, Gold, Platinum and volume certification"...is absolutely correct. We should be basing ALL buildings performance on RESULTS, not some piece of second hand glass screwed to the wall with LEED NC etched into it...that doesn't prove it's a high performing building.

Saulo - January 5, 2012 3:14 PM

Thank you for a great post Chris.

Everybody who attended USGBC's webinars and Greenbuild Expo last year knows that the LEED Platinum of today is the LEED Silver of the future, so I believe DoD is just advocating that message more strongly.

I am interested to see USGBC's reaction in terms of adjusting LEED 2012 to this new dynamic.

E.Woods - January 6, 2012 7:18 AM

LEED is a Registered trademark and the USGBC is a non-profit, but none-the-less private organization.I never believed that our government should be marching to the tune of an organization like that. Forty years ago, the government detailed energy conservation by insisting on an energy budget for all new buildings
and other rules and regulations for existing. ASHRAE, at that time, was very fearful that the government would step in and be telling us all what to do, and got involved very early in energy conservation matters. USGBC is an architecturally led endeavor and started out,in the early 90s without any firm idea of what energy conservation is all about. What they did do, however, was wake up the industry and force the issue, but I still believe they are misplaced and the governmnet should have its own program of energy conservation for government construction.

Raphael Sperry - January 12, 2012 4:35 PM

Here’s a different perspective.

Wood may not be the central issue here. Congressional Republicans have made clear their hostility to anything that smacks of concern from the environment, from trying to end lightbulb efficiency standards to unbridled support for the Keystone XL pipeline to calling for an end to the EPA. While the wood industry may have opened the door on this, most likely other Republicans followed along because it fits their anti-environment message. This is part of a very extreme defense bill – it has also made legal indefinite detention without trial, despite the objections of the majority of the Defense establishment.

The people who object to LEED will celebrate the clear-cutting, pesticide dumping, and worker exploitation behind the wood going into Defense construction projects. They view wasting energy, piling up trash, and mountaintop removal as patriotic. There is no way to make LEED acceptable to this constituency, so blaming the “wood wars” seems a bit off the mark. Supporters of LEED need to find ways to change the national discourse about the environment and reduce the power of extreme “anti-government” and “free-market” (i.e. pro-corporate) positions in Congress. If USGBC caves on the wood issue, it will lose many valuable partners in that work.

Ellen - February 11, 2012 5:50 PM

Chris: You wrote...."a green building policy wonk recently made an interesting point to me: by pursuing LEED certification, the federal government receives third-party confirmation that it is getting the green building it contracted for."

I think it's more accurate to put it this way: By pursuing LEED certification the federal government has shown its commitment to building green and an understandable desire to check the boxes and have a third party certify that the boxes were in fact checked. But that will not necessarily guarantee that the building will perform as designed. The fed govt could set its own performance goals for its buildings, then use the appropriate tools and rating systems and standards to get there. LEED provides an excellent and comprehensive, though not the only, system for green building design. The feds might also wish to use the Passivhaus standard (as modified for US climates) or similarly rigorous energy efficiency standard that also ensures superior IAQ + standards for integrating other attributes as needed, such as enhanced security, resilience, universal design.....on the basis of life-cycle cost effectiveness. Instead of spending $ for a seal of approval the fed govt should spend it on performance measurement and verification. The savings in operational costs AND first costs that come from integrated design and aggressive energy efficiency (in addition to productivity improvements and reduced healthcare costs that may result from other green measures as someone noted) could fund demonstrations, technical assistance and training to help improve the rest of the building sector.


Stuart Kaplow
Sustainability & Green Real Estate Attorneys
15 East Chesapeake Avenue
Baltimore, Maryland 21286-5306 USA
Tel 410-339-3910
Fax 410-339-3912
Email skaplow@stuartkaplow.com