Articles

Your project is now certified, but will it stay that way - Decertification under LEED 2009

By: Ed Lee

In April of this year, the U.S. Green Building Council ("USGBC") launched the next version of the LEED green building certification system, LEED 2009 a/k/a LEED v3. This updated version incorporates the existing rating systems for New Construction, Core and Shell, Commercial Interiors, Existing Buildings: Operations & Maintenance, and Schools. Among the changes implemented under the updated system, LEED 2009 adds a new term to the green lexicon, "decertification." For the first time under the LEED rating systems, even if your project obtains certification, it might not stay that way. Initial reactions to decertification have been decidedly mixed. Some professionals are fearful that it represents the beginning of the end for LEED in the long run and is a precursor to waves of decertification based litigation, while others are of the opinion that decertification, in its current format, is much to do about nothing.

As a baseline for discussion, the USGBC establishes the standards for LEED project certification. The Green Building Certification Institute ("GBCI"), an independent entity, is then responsible for determining whether a project has met the LEED requirements and is worthy of certification. In LEED 2009, the USGBC introduced seven Minimum Program Requirements ("MPRs") which must be followed in order to be eligible for LEED certification. According to the USGBC, the MPRs are intended to: (1) give clear guidance to customers, (2) protect the integrity of the LEED program, and (3) reduce complications that occur during the LEED certification process. Importantly, the MPRs apply only to those projects certified under LEED 2009, including those upgrading to LEED 2009 from earlier versions of LEED. If a project was certified under an earlier system, the MPRs do not apply. The seven minimum requirements are:

• Must comply with environmental laws;
• Must be a complete, permanent building or space;
• Must use a reasonable site boundary;
• Must comply with minimum floor area requirements;
• Must comply with minimum occupancy rates;
• Must commit to sharing whole-building energy and water usage data; and
• Must comply with a minimum building area to site area ratio.

If a project does not satisfy each of the MPRs, it will not be eligible for LEED certification.

So far so good, but the MPRs include the following note:
"CERTIFICATION MAY BE REVOKED FROM ANY LEED PROJECT UPON GAINING KNOWLEDGE OF NON-COMPLIANCE WITH ANY APPLICABLE MPR. IF SUCH A CIRCUMSTANCE OCCURS, REGISTRATION AND/OR CERTIFICATION FEES WILL NOT BE REFUNDED."

The GBCI policy manual similarly provides, "GBCI may revoke previously granted LEED certification or take other action regarding LEED certification such as determine to reduce points or category of LEED certification previously granted, if GBCI determines that credit/prerequisites for LEED certification were granted based on erroneous determinations or inaccurately or falsely submitted documentation."

With the above in mind, the question is whether decertification is a significant concern or not. At least on the surface, the USGBC and GBCI have made clear that project certifications may be revisited to correct erroneous point or certification awards. While there is nothing ground breaking about that, concerns have arisen with respect to the sixth MPR and the requirement to commit to share energy and water usage performance data. The specific
requirements of MPR no. 6 are below:

• All certified projects must commit to sharing with USGBC and/or GBCI all available actual whole-project energy and water usage data for a period of at least 5 years. This period starts on the date that the LEED project begins typical physical occupancy if certifying under New Construction, Core & Shell, Schools, or Commercial Interiors, or the date that the building is awarded certification if certifying under Existing Buildings: Operations & Maintenance. Sharing this data includes supplying information on a regular basis in a free, accessible, and secure online tool or, if necessary, taking any action to authorize the collection of information directly from service or utility providers. This commitment must carry forward if the building or space changes ownership or lessee.

This language naturally raises the question of whether this MPR will be interpreted to require not only a promise to provide project performance data, but also the actual delivery of such data for a period of at least 5 years. Further, if delivery of the data is, in fact, required, then might a project be decertified if the energy and usage data is not provided? As one might imagine, on-going post-certification compliance would present a host of issues and could reasonably be expected to spawn the litigation feared by some - just think of the issues which might arise in a multi-tenant LEED certified building, funded with project financing, if LEED certification was revoked.

For now, we do not know definitively how the USGBC and GBCI will implement the performance data requirement. To be effective, however, one would think that the commitment to provide performance data would reasonably require more than a well intentioned promise to comply with poor follow through once certification has been obtained. What is the point of MPR no. 6 if there is no mechanism to ensure that the data is actually provided? The USGBC has provided some guidance to date which supports the view that failure to report will not result in decertification. In a June 25, 2009, press release, the USGBC sought to clarify that the performance data reporting requirement is intended to drive future versions of LEED stating, "[b]uilding performance will guide LEED's evolution. This data will show us what strategies work - and which don't -- so we can evolve the credits and prerequisites informed by lessons learned."

An addendum to the MPRs is expected to be released shortly by the USGBC and/or GBCI that is expected to address this issue in greater detail. It will be important for them to clarify how decertification will work. Regardless of how the issue ultimately is resolved under LEED 2009, one should also be mindful of where LEED is going. LEED is intended to be an evolutionary standard leading to increasing levels of performance. In the future, it would not be surprising for the USGBC to require reporting as a condition to retain certification or, further still, for the USGBC to ultimately require that actual performance must meet or exceed the expected performance of a LEED project.