Green Building Law Update : Green Building & Construction LEED AP, Lawyer & Attorney Chris Cheatham : Washington DC, Virginia, New York City

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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One of the great parts about Green Building Law Update is interacting with astute readers. One recent comment has forced me to rethink the proposed Department of Defense Reauthorization Bill ban on LEED certification.

In the comments to last week’s post, reader R. David Chambers asked an important question:

Chris -
your quoted section says '... LEED Gold or Platinum certification ...', which appears to NOT preclude LEED certification at a Certified or Silver Level - I have not read the bill, but it appears from your snippet that if the funds required to achieve Certified or Silver 'backed into' Gold or Platinum there would be '... no additional cost to DOD.'
am i missing something?

No, David, you are not missing anything. And your comment raises an important issue about the policy underlying this bill.

There are two primary reasons why I can see a politician opposing government spending on LEED certification:

1. LEED certification is primarily a marketing tool for green buildings. The federal government does not need to advertise its green buildings. I have always considered this a legitimate policy argument.

2. The government should not be investing in green buildings, period. To me, this argument has less merit. Many studies now find that a green building can be built for the same costs as a non-green building. And green buildings should result in cost-savings in energy and water useage.

If the drafters of the DoD reauthorization bill were concerned with the first policy issue -- the costs of certification -- then presumably they would have banned spending on all LEED certifications.

However, the DoD reauthorization bill only prohibits funding for LEED Gold or Platinum. Buildings that obtain LEED Gold or Platinum certification generally cost more than buildings that obtain Silver or Certified certification. It appears that the DoD reauthorization bill ban on LEED Gold or Platinum certification is based on the policy that the federal government should not be investing in advanced green buildings.

How do you interpret the DOD reauthorization bill ban on LEED Gold or Platinum certification?  Do you think the ban has merit? 

Photo credit: David Reeves

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It is not looking pretty for federal green building policy.

Earlier in the year, I speculated that Congress might target green building certification as an unnecessary cost.  Well, it happened.  From the ASHRAE Government Affairs Update: 

House Passes National Defense Authorization Act for FY 2012 – Would Require Cost-Benefit Analysis & Long-Term Payback for DoD Adopting ASHRAE Standard 189.1

The U.S. House of Representatives passed the National Defense Authorization Act for Fiscal Year 2012 (H.R. 1540) by a vote of 322-96. . . .

The bill would also require a cost-benefit analysis and return on investment for energy efficiency attributes and sustainable design achieved through DoD funds used to receive a Leadership in Energy and Environmental Design (LEED) Gold or Platinum certification.

But here's the real kicker in the legislation: 

The bill would prohibit FY 2012 DoD funds from being used to achieve a LEED Gold or Platinum certification, however these certifications could be obtained if they impose no additional cost to DoD.

As I understand it, LEED certification will always impose an additional cost on the DoD simply because administration fees have to be paid to the US Green Building Council in order to get the certification.  It appears that this legislation, if passed in this form, would bar the DoD from pursuing LEED certification. 

According the ASHRAE update, the Senate will propose its own bill.  It will be interesting to see how the LEED certification funding issue is dealt with in the Senate and in conference committee.

I have often wondered why federal buildings should pursue LEED certification.  I always viewed certification as a marketing tool to demonstrate that a building was green.  But 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.  

Is this the beginning of the end for federal policy that supports LEED? Should federal buildings pursue LEED certification in the first place? 

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On Monday, I discussed conflicts between military construction and green building certification.  Green building certification was originally created for commercial office buildings, which can create some odd applications in military construction.  While we have have already discussed energy efficiency, bicycle racks and HVAC systems, there is one component of military construction that conflicts directly with many green building components:  anti-terrorism.  

I never imagined someone had completed a study of these conflicts:

The LEED®-DoD Antiterrorism Standards Tool addresses the security implications of strategies used to achieve each LEED credit with regard to their inter-relationship (i.e., potential conflicts and synergies), from the Department of Defense (DoD) perspective. Information is presented within a color-coded matrix based on the U.S. Green Building Council's Leadership in Energy and Environmental Design Green Building Rating System (LEED-NC Version 2.1) cross-referenced with the applicable standards in Unified Facilities Criteria (UFC) 4-010-01, DoD Minimum Antiterrorism Standards for Buildings. As such, critical areas are easily identified, prompting the project team to work collaboratively, using a 'whole building' approach, to develop successful, efficient solutions for a high performance, secure building.

For a government contracts attorney focused on green building legal and regulatory developments, the Standards Tool is a remarkable discovery.  My eye was immediately drawn to the "conflicting requirements" in the Standards Tool.  According to the Standards Tool, the following LEED credits are in direct conflict with Anti-terrorism Standards: 

•    SS-2 Development Density
•    SS-5.2 Reduced Site Disturbance, Development Footprint
•    SS-6.1 Stormwater Management, Rate and Quantity

In future posts, I will be exploring the conflicts between these LEED credits and the Anti-terrorism Standards Tool.  Have any of you worked with a building trying to comply with both LEED certification and the Department of Defense Anti-Terrorism Standards? 

Related Links:

LEED DoD Antiterrorism Standards Tool (WBDG)

Conflicts Arise Between Military Construction and Green Building (GBLU)

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