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

You remember the $100 million dollar lawsuit against the US Green Building Council, right?  

It’s back in the spotlight, and it has taken a new form through an amended complaint filed by multiple Plaintiffs. No longer is the Plaintiff asking for $100 million.  No longer is the Plaintiff asserting a class action lawsuit that would have represented essentially anyone that ever took a step into a LEED building.  

You can download a copy of Henry Gifford’s amended complaint (PDF), which was filed on February 7, 2011.  Here are the basics of the complaint:

• The Plaintiffs are four design and construction professionals:  Henry Gifford, Elisa Larkin, Matthew Arnold and Andrew Ask.  
• The Plaintiffs allege that the USGBC has falsely led consumers to believe that LEED buildings are more energy efficient.  The Plaintiffs claim that the USGBC’s own data proves that LEED buidings are actually not more energy efficient.  The Plaintiffs also assert that the USGBC never actually verifies that buildings are designed and constructed to save energy.  
• To prove the USGBC’s alleged lack of verification, the Plaintiffs point to the Northland Pines High School LEED certification challenge.  You may recall that I covered this story extensively in 2010.  
• The Plaintiffs do not assert how much they have lost due to the USGBC’s actions. 

“USGBC's false advertising causes consumers of building design and construction advice to utilize a LEED-certified professional instead of Plaintiffs because consumers mistakenly believe that LEED-certified professionals will design a LEED-certified building that is verified by a third-party to be more energy-efficient than the building that Plaintiffs would design. . . .”

What do you think of this argument? 

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The United States Green Building Council (USGBC) recently published a white paper entitled "Greening the Codes" that is simultaneously very helpful and somewhat frustrating.  The most important information is buried on page seven after an unnecessary review of the history of building codes.  But if you can get through the first six pages, you will find that the USGBC has made an important statement, although one that could have been made more boldly:  

"Raising the Floor: While green building rating systems such as LEED have been designed to benchmark above-code leadership for buildings that intend to go beyond the minimum, it is equally important to complement this leadership with stronger, more comprehensive building codes. Safer, healthier, and more environmentally responsible codes are at the heart of sustainability planning for raising the floor for the entire community. These codes are a viable new baseline off which incentives for exemplary leadership and commitments for public buildings to pave the way can naturally be built.

For commercial buildings: Consider adopting the International Green Construction Code and its technically rigorous 189.1 compliance path.

For residential buildings: In addition to adopting and implementing the 2009 International Energy Conservation Code, consider a well-established local green homebuilding program in your area. In the absence of such a program, the ICC-700 compliance path of the International Green Construction Code should be considered as a means for jurisdictional oversight for residential buildings."

I wish the white paper had stated in big bold letters on page one "STOP USING THE LEED RATING SYSTEM FOR BUILDING CODES."  But the statement in the white paper is a good start. 

Based on this white paper, I would suggest that it is time to revisit the D.C. Green Building Act before it's too late.  As you may recall, starting in 2012, all private construction greater than 50,000 square feet will be required to achieve LEED certification in Washington, D.C.  The USGBC's white paper all but states that the LEED rating system should not be used as a de facto building code for commercial buildings.  

And there still remains the issue of the unavailable "bonds" required to enforce the Act, but I won't get started on that.  At least for now.  

What are your thoughts on "Greening the Codes"? 

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If you participate on building projects that are seeking LEED certification, this news may come as a relief to you.  According to Marian Keeler of Simon & Associates, the United States Green Building Council (USGBC) is reconsidering its decision to stop making Credit Interpretation Requests (CIRs) public.  

I have previously described a CIR as follows:  
 

In June 2009, I reported that the USGBC had announced that, effective June 26, 2009, a CIR would only be applicable to the project that submitted it.  At the time, I suggested that "[w]ithout public CIRs, architects, engineers and contractors are going to have more trouble interpreting credits and determining strategies that will successfully achieve a LEED credit."

It appears that the USGBC is now reconsidering its decision and plans to implement a new CIR system:

I will reach out to the USGBC for further information.  Why do you think the USGBC is reconsidering?

Related Links:

Why Do Non-Public CIRs Mean LEEDigation? (GBLU)

CIRs and Precedence Policy (LEEDuser)

Photo credit: eddiewls

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