Green Building Law Update

Maybe We Should Rethink LEED Laws

For much of 2011, my focus has been the Destiny USA project.  This should not come as a surprise to readers who waded through my thirteen posts on the topic.  I had planned to not write about the Destiny USA project again.  But then I came across a press release while I was at Greenbuild: 

Destiny USA in Syracuse Aims to be America's Largest LEED® Gold Certified Commercial Retail Project; More than 100 Tenant Retail Spaces to Also be Certified

As you may recall, the Destiny USA project received over $200 million in tax-free financing through the federal government's Green Bonds program.  In exchange for the financing, the developer of the project promised, among other things, to get LEED certification and rely on massive amounts of renewable energy. The IRS is now investigating the project because it appears the renewable energy systems were never installed.

I think it's safe to say the Green Bonds program was a failure.  But there is another policy issue that bothered me that I have not previously touched on. 

Did the US Green Building Council act appropriately in assisting the Destiny USA project? 

As I was reading the Destiny USA press release, one passage caught my eye: 

"This project is important to me and to USGBC," said Rick Fedrizzi, President, CEO & Founding Chair, U.S. Green Building Council.  "Not only is it in my backyard but it will also be a showcase in the community for what can be done with green building and LEED.  The visitors who walk through the Destiny USA doors every day will learn about the importance of green building and be able to see today's latest green building strategies in action."

For those looking for an argument that LEED should never be used in regulations or law, I present to you Exhibit A: 

  • The Destiny USA project has to get LEED certification as a condition of a federal law.
  • The USGBC is a non-profit entity responsible for the LEED rating system.
  • The USGBC CEO states the project is important to him and his company because it is located in his hometown of Syracuse, New York.

If a federal official displayed this type of favoritism for a project, he would be removed.  Litigation would certainly ensue challenging the procurement process.

If LEED is going to be used in law, whether it be through incentives or mandates, then the USGBC and its CEO should not get to play favorites with projects.

Of course, this is not what is happening.  And this type of conflict of interest and favoritism could undermine the credibility of the LEED rating system and of the green building movement.  

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Comments (4) Read through and enter the discussion with the form at the end
Bill - December 14, 2011 11:50 PM

Wow! Great insight Chris. Definitely think there is a conflict of interest. What about the USGBC financial contribution to the project? Seem to recall it being mentioned in ealrlier post.

Chris - December 15, 2011 2:08 PM

Thanks for this information. I soured on LEED a while back and generally agree with the assessment that LEED is simply marketing with a little green building thrown in. We make good and efficient buildings with excellent HVAC, add then a lot of glass and over ventilate them to bring them back to baseline performance. We then slap a madallion on them, and try to rent/sell that for more money in the marketplace. Maybe it is bringing greenbuilding into more common practice, and for that I'm grateful.

Even w/o the conflict of interest you point out, there should not be room for making LEED, and its extra expenses, lawful requirements.

Michael Kawecki - December 16, 2011 7:01 AM

Aren’t you overlooking one major item, in that USGBC is not responsible for the certification process? GBCI oversees LEED certification as a seperate 501c3 non-profit. So there is no conflict of interest…

Different Bill - December 23, 2011 11:47 AM

Michael, how separate are USGBC and GBCI? They have the same office and it appears the staff just switch hats during the day depending on which company they're working for at the moment.

USGBC used to brag on their website and list how many Cities or States have mandated LEED. Now they're officially backing away from that but still seem to enjoy it.

Every other building Code has to be adopted. And any newer version has to be adopted. With the State able to amend any Code to what they feel is important. LEED can't work that way. It's automatically updated and we're left to arbitrary interpretations by low bid consultants. Even asking a questions costs time and money. Their attempt at codifying LEED in ASHRAE 189 is terrible and I pray I never have to design under it.

Until LEED actually requires measured energy savings instead of predicted savings the whole system is just a marketing scam that is distracting people who want to do the right thing.

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