Green Building Law Update

A Green Building Game of Thrones

"Winter is coming."  

This is the common refrain in the popular book, Game of Thrones, in which kings vie to take over lands.  As I thought about the green building policy mess of 2012, I couldn't help but draw comparisons to Game of Thrones. 

This was supposed to be the year of the USGBC's new green building rating system, LEED 2012.  But somewhere along the way, the plan went awry and the USGBC had to retreat. 

In assessing the battlefield, I have concluded that the USGBC overextended itself, choosing to fight a two front war without the necessary resources. This is a common tactical mistake and one that has proven costly for the USGBC. Just how costly is yet to be seen. 

The Assault on Chemicals of Concern

Before being pulled, the proposed LEED 2012 rating system went through a lengthy, unexpected vetting process, culminating in a fourth draft.  One particular section of the fourth draft set the green building world on fire: 

New credit for avoidance of chemicals of concern – this credit encourages LEED project teams to specify materials that do not contain chemicals that are known to negatively impact human health (specifically in regards to cancer and reproductive toxicity).

New credit for Environmental Product Declarations - The new EPD credit encourages product manufacturers to engage in disclosure activities that provide specifiers with consistent and complete information about their products enabling specifiers to make more informed decisions.

The negative reaction to this credit was fast and furious. 

The timing of these lobbying efforts coincided with the GSA's release of a preliminary report  indicating that the Green Globes rating system was better suited for new federal construction.  While the report was not tied to the issue of chemicals in LEED 2012, it provided an opportunity for anti-LEED lobbying to push for a new federal green building rating system. 

With a pending final report from GSA this winter, and massive lobbying efforts against LEED at the federal level, don't be surprised if other rating systems are adopted by federal agencies going forward. 

The Wood Siege

The USGBC has also been stuck in a long standing siege with the wood industry. 

On the one side, you have two allies -- the USGBC and the Forest Stewardship Council (FSC).  The USGBC long ago selected FSC wood as the anointed certification for wood products.  On the other side is the non-FSC timber industry -- those wood providers that can't attain FSC certification.  This side prefers the Sustainable Forestry Initiative (SFI) certification.

In July 2011, it appeared the USGBC was willing to negotiate with SFI.  In a LEED Pilot Credit, the USGBC recognized SFI as one of four wood certifications.  

Then the USGBC shifted its tactics.  In the last version of LEED 2012 that was released this past year, the USGBC declared that "(n)ew wood products must be certified by the Forest Stewardship Council or better." 

The "Wood Wars" has left the USGBC bloodied.  In 2011, Congress passed a Department of Defense Reauthorization bill that effectively banned LEED Gold or Platinum certification.  One Senator indicated the LEED ban was in response to the USGBC's failure to adopt non-FSC wood certification. 

USGBC Retreats on LEED 2012

As the two battles on chemicals and wood have raged, the unthinkable happened: the USGBC had to retreat on its latest proposed version of its rating system, LEED 2012, before putting it up for a vote.  I had been tweeting for a number of weeks that things were looking grim for LEED 2012.  If you want to follow the drama, I highly recommend perusing the commentary at the LEED User forum.  

It's hard not to draw a correlation between the chemical industry's negative reaction to LEED 2012 and the USGBC's decision to pull it back.  USGBC CEO Rick Fedrizzi addressed this issue in an open letter to USGBC members:  "To be clear… this change is 100% in response to helping our stakeholders fully understand and embrace this next big step."  

Who Will Win the War?  

This winter, many decisions will be made that will determine the fate of the USGBC for years to come.

  • Will the next proposed version of the LEED rating system include similar Chemicals of Concern and FSC-only credits? 
  • What will be the GSA's final recommendations regarding green building rating systems? 
  • How will the presidential and congressional elections impact green building policy? 

I hope everyone is ready for a long, interesting winter. 

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Comments (5) Read through and enter the discussion with the form at the end
Tristan Roberts – Editorial Director, LEEDuser - September 17, 2012 1:41 PM

Chris, I agree that USGBC is facing challenges here unlike anything in its 20-year history. However, I thing your characterization of the LEED v4 delayed is off.

I read your post with interest to see if you had found a definite connection between the chemical lobbies and the change in schedule, but it looks like you haven't found one. Rick quote is addressing members who had yet to get behind the forthcoming changes.

This specific comment thread on the LEEDuser forum highlights the documented concerns that led to LEED v4 being pushed to 2013:

http://www.leeduser.com/topic/leed-2012-4th-public-comment-and-ballot-forum#comment-25835

Certainly the wood and chemical issues, and the timing of their eruptions, can lead one to infer a connection, but USGBC is driven by its membership, and its members were vocal in saying that more time was needed to clarify the credit requirements and documentation steps.

While you call the change in schedule "unthinkable," this was an idea that was "thought" by a number of USGBC members, and USGBC dared to take that step, knowing that it might not look good to some people, but that it would allow needed time for work on the rating system. Nor is it the first time USGBC has delayed a major rating system revamp, to give time for proper development. LEED v3 was originally supposed to launch in 2003:

http://www.buildinggreen.com/auth/article.cfm/2001/10/1/LEED-Development-Adjusted/

Chris - September 17, 2012 2:40 PM

Tristan - glad we agree that the USGBC is facing major challenges. It will be interesting to see if the USGBC modifies the materials credits in the upcoming LEED 2012/v4.

John - September 20, 2012 10:10 AM

Thanks for the new post Chris. I like the "Winter is coming" analogy. I've been watching a lot of kid shows lately so what pops to my mind first is the Phineas and Ferb song "We're watching, and we're waiting. On the edge of our seats anticipating...." I really need to get HBO.

I think it's very difficult to really "know" why the delay occurred. Only the insiders at USGBC know and I don't hear any straight answers coming from them.

My own opinion is there were two causes for this delay. The actions of Congress and the comments on the LEEDuser forum. USGBC seemed to be living in an isolated bubble and unaware of the problems they were creating. Previously, the only form of feed back was in the Public Comment phases. I doubt much of this was ever read by USGBC staff and it was easily dismissed as sour grapes. The LEEDuser forum actually gave the users a voice and they could have a real conversation with another person. And they're no longer faceless complaints but industry experts.

The effect from Congress is because it hurts their bottom line, as it was designed to do. USGBC cares more about keeping their market share then they care about having a meaningful rating system. Again, just my opinion.

USGBC just keeps going from mistake to mistake. They might have been able to easily weather these two wars if their troops were motivated to support USGBC. Who's ever going to be eager to support a bureaucratic nightmare with only marginally measured benefits at best. If USGBC wants to win, they need to have a product that's worth fighting for.

Melissa Brumback - September 24, 2012 10:32 AM

Chris:
Interesting backstory that I was blissfully unaware of! I just don't want to have to take any more tests, personally!

Mike - September 29, 2012 5:27 AM

As John insinuates, I believe this all boils down to one thing: money.

If the GSA moves away from LEED, USGBC loses its inside track to its largest user. (Government projects represent the largest % of LEED projects.) That's a big revenue hit for an organization (USGBC) that's already bleeding money.

2009 profit = $14 million
2010 profit = ~$1.5 million

2009 revenues = $84.8 million
2010 revenues = $59.7 million

On the flip side, if the chemicals of concern remain, many manufacturing powers will have to retool and face lowered revenues in the short-term while their more environmentally-friendly competition enjoys a market advantage.

I'll choose to reference the often-used TV phrase, "Stay tuned!"


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