For this Halloween edition of Green Building Law Update, I thought I would try to scare your socks off by describing circumstances that may lead to the green building legal apocalypse. Be warned, this blog post is going to give you nightmares!
Last week, Doug Reiser and I presented at the Green Legal Matters conference on the following topic:
"The Green Building Legal Apocalypse: Why Cities Should Stop Mandating LEED"
I have received a number of inquiries about the presentation so I published the slideshow. I am big on not using a lot of words or bullet points on slides so I am not sure how helpful the slideshow will be, but I am happy to answer any questions you may have about it in the comments section.
There is one central theme of our presentation: municipal governments should stop mandating LEED certification for private construction. I could run through all of the reasons – there is no proper enforcement mechanism, there will be increased LEEDigation – but in my mind, the creator of the LEED rating system, the US Green Building Council, makes the most powerful argument for not mandating private-construction LEED certification:
This picture is taken from the USGBC white paper, "Greening the Codes" (pdf). The hyphenated vertical line represents the current market. The updwards sloping, blue area at the bottom represents building codes. The dashed line above the blue area represents green building codes. Above the green building codes are LEED Platinum, Gold, Silver and Certified certification levels.
What does it mean?
If you need evidence that LEED certification was never meant to be a building code, and should not be a building code, use this picture. Building codes are the minimum. By mandating LEED certification for all private construction, a government essentially makes LEED certification a building code, a minimum. LEED certification is supposed to represent buildings that have gone beyond the building code. With this picture, the US Green Building Council is telling us not to use LEED certification for private-construction mandates.
LEED certification is a high bar, and if certification is mandated, not everyone will comply. Non-compliance means penalties, disputes and litigation. This is why I say governments that are requiring LEED certification for private construction are setting the stage for the green building legal apocalypse.