Mom always said I was a late bloomer (… Wonder what she meant? …)  Well, you can call me late to this game, but hopefully not too late.

Perhaps the best summary of the new LEED 2009 Minimum Program Requirements (MPR) can be found on Stephen Del Percio’s Green Real Estate Law Journal.  Last week, Chris Cheatham’s Green Building Law Update caught on fire with comments about his post on LEED Decertification.  The match that lit the fire turned out to be the following language found on USGBC’s website about the MPRs:


A couple of observations from my neck of the woods.  First, I am not sure that the fact USGBC has wielded this revocation stick is as noteworthy as its ramifications. Indeed, verification requirements and revocation/de-certification processes appear in various substantive areas of law (i.e., union and labor, banking, minority business, etc.). What is noteworthy, again, is the fact that the revocation stick will have undetermined consequences.

In other words, the authority to revoke LEED certification from a project raises legal concerns beyond the scope of LEED’s stated intent—that is, to provide “building owners and operators a concise framework for identifying and implementing practical and measurable green building design, construction, operations and maintenance solutions.” Now we are talking about issues like: third party standing to initiate decertification proceedings, time elapsed certification, regulation enforcement and insurance coverage questions.

Next, would you be surprised to learn that the concept of “permit revocation” has been adopted by a local municipality for green projects that fail to provide proof of LEED certification? That’s right, last fall the City of Gaithersberg, Maryland adopted the “Green Building Requirements” to amend its building code, which included the following revocation provision:

3110.2.4 Verification. Within eighteen (18) months after the receipt of a Certificate of Use and Occupancy, the applicant shall provide proof to that the required LEED-level rating was obtained. Failure to submit the required proof shall be grounds for revocation of the Certificate of Use and Occupancy.

This code was passed almost one year ago. I’m looking into whether any revocations have occurred yet under this new Gaithersberg ordinance.

 Finally … and here’s the kicker … apparently, a LEED revocation is underway or has already occurred somewhere out there. According to the literature for the Green Buildings Seminars in September 2009, there is one reported instance of decertification proceedings. Lawrence Spielvogel, an independent consulting engineer, is scheduled to “discuss why this non-compliance typically occurs, and will describe the actions of the designers that led to the first ever decertification of and plaque removal from a LEED Certified project.

 Did I read that correctly?  Let’s ask Larry …  ring … ring … [conversation] … hang up phone … Yes, I read that correctly! Looks like we have to wait for the presentation in September 2009 to report on the whole scoop.  Perhaps Shari will go for me?

 And now … what I promised in the title of this post … here is what some the industry experts have said about the revocation issue:

Who they are? What they said?
Michael Anschel, Verified Green


“Ultimately we need to acknowledge that LEED, Green Globes, and other building certification programs are only certifying the process of constructing a building, and were not designed to do anything more. Certification cannot be revoked for poor operations since the process under which it was created and subsequently certified has not been altered and there was no commitment or mechanism in place to govern or instruct operations.” [GBLU Comment]

James Bedell, Build2Sustain


“I think this … points out yet another flaw in thinking of LEED as a regulation. It’s nothing more than a rating system and until certification is built into [a] real building code it is totally unenforceable.” [GBLU Comment]

David Bourbon, Texas Sustainability


“As long as LEED Certification remains fairly subjective, there are no grounds upon which to enforce it. Governments can rely on the intent (built to comply with LEED standards,) but mandating certification is unrealistic until the standards are incorporated in the building codes.” [GBLU Comment]

Rich Cartlidge, Green Building & Environmental Trends


“With the new potential for a building to lose its status as LEED certified if it fails to properly perform, a green lease is more important than ever. Tradititonal commercial leases are simply put not properly drafted to deal with the unique challenges that green buildings can present . . . .” [GBET Post]

Chris Cheatham, Green Building Law Update

“(1) De-certification makes regulations tied to LEED certification very difficult to enforce. . . . (2) Insurers and sureties are going to be extremely concerned about coverage issues after design and construction work is complete. . . . (3) For you owners out there, the commitment to provide energy data must carry forward if a building or space changes ownership or lessee.” [GBLU Post]

“In order to institute requirements to address the performance gap, the USGBC had to have an enforcement mechanism. The only “stick” the USGBC has is the certification it gave out. So they threaten to take away certification if the requirements are not met.” [GBLU Post]

“[O]ne important piece of information . . . . The LEED 2009 Minimum Project Requirements (MPR) require, among other things, that projects report energy performance data.  If projects do not report energy data, then LEED certification may be revoked (i.e. de-certification).  The USGBC has not stated that LEED certification will be revoked for poor energy performance itself.” [GBLU Post]

Will Clark, Multi-Family Guide

“From a lender’s perspective, if data sharing is the only MPR at risk, then it probably will not be a problem. Underwriters will likely treat it like a conditional tax abatement or other annual reporting requirement and make adjustments in proceeds or the loan docs.” [GBLU Comment]

Stephen Del Percio, Green Real Estate Law Journal and greenbuildingsNYC

“…USGBC/GBCI is not obligated to revoke certification upon learning of non-compliance, but it is not restricted from receiving information regarding non-compliance from any third party. The question then becomes what, if any, obligations USGBC/GBCI may have to use that information and pursue a decertification proceeding, either conferred elsewhere in the LEED rating system itself or otherwise imposed by law.” [GRELJ Post]

Michael English, Horizon Engineering Associates LLP

“I am a huge fan of decertifying a building when appropriate. . . . The sad part is that some of these buildings don’t function properly due to poor design, coordination, construction and/or commissioning. I’m all for doing whatever it takes to uphold the value of these certifications and making certain they reflect true building performance.” [GRELJ Comment]

Ed Gentilcore, Duane Morris LLP

“Owners weighing whether to pursue a LEED-rated project will have to consider the potential that the achievement of the rating may be a Pyrrhic victory because decertification may be the ultimate legacy.” [ENR]

Christopher Hill, Construction Law Musings

“Why the fuss? When you get right down to it, LEED is just a private rating system originally designed to give a snapshot of “green”-ness of a building when built that is now seeking to provide a rating for energy performance over a longer time frame.” [CLM Post]

“[W]hat makes the debate regarding the liability and enforceablity both interesting and necessary is not LEED itself. What makes the debate necessary is the public’s use of LEED as the standard for building codes, tax incentives, zoning rules, and private contractually created energy performance benchmarks.” [CLM Post]

Scot Horst, Senior VP, USGBC


“We’re convinced that ongoing monitoring and reporting of data is the single best way to drive higher building performance because it will bring to light external issues such as occupant behavior or unanticipated building usage patterns, all key factors that influence performance.” [USGBC]

Jeff Howell, Fidelity National Title Group


“Isn’t it most important to understand the reasons behind buildings not operating at the level expected based on the level of LEED Certification earned?” [GBLU Comment]

Ashley Katz, Communications Manager, USGBC


There’s no certification revocation involved based on performance – we’re merely asking projects that can provide data to do so (there are 3 ways that projects can fulfill this specific MPR …).  If the project refuses, then we won’t certify them (or take their certification away if necessary). [JG Post]

Marc Kleinmann, Environments General Contractors


“There needs to be clear differentiation between the process of building a structure and operating a structure. The process of certification covers just that – how a structure is built. Operating a structure has nothing to do with this certification.” [GBLU Comment]

Brendan Owens, VP, LEED Technical Development, USGBC


Building 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.” [USGBC]

Mark Rabkin, Althans Insurance Agency


“What scares me is the fact that local & state governments and federal agencies are not effectively vetting the rating system and its various intricacies prior to incorporating its use within public policy. Rather than understand why they want to implement responsible green building practices and the potential environmental, social and economic benefits, it seems to me that the powers that be equate LEED with better performance.” [CLM Comment]

Shari Shapiro, Green Building Law Blog

“I believe that a green building that does not perform should not be allowed to continue to benefit from the LEED moniker. There are a few things which could make it work better: (1) Create different levels of certification as time elapses . . . This eliminates the issue of “decertification”, while providing ongoing incentive to report and maintain buildings to the LEED standard; (2) Phase it in—This ensures that the reporting requirements can be complied with, and allows utilities and others to come to grips with the concept of releasing to third parties energy data.” [GBLB Post]

Jared Silliker, Silliker + Partners


“I think in the long run this will provide more transparency and will get at the real results—measurable reductions in energy use and greenhouse gas emissions, for instance.” [SI Post]

Sara Sweeney, EcoVision


“I think what USGBC did with respect to instituting requirements which address the performance gap . . . is an excellent and much-needed step. This, however, goes a bit too far too fast in my opinion, and although well-intentioned, could turn off alot of folks real fast.” [GBLU Comment]

Peter Troast, energy circle


“As we’ve argued before, the LEED label risks rendering itself meaninglessness when a LEED certified building – which may count among its “green” credentials a bike rack and a bamboo spice cabinet – can continue to guzzle energy like a Hummer with a gas leak. It appears as if this is about to change, which is a good thing.” [energy circle]

Michael Viera, Green Building Law Hawaii


De-certification presents yet another layer of risk and potential liability that should be addressed early in each stakeholder’s contract.” [GBLH Post]

Ujjval Vyas, Alberti Group

“This creates a huge risk and provides standing to any entity whatsoever to injure a building owner or tenant.” [ENR]

If I missed you, send me an email and I will update the list.