The LEED rating system was never meant to serve as a building code. Yet, cities and states are mandating LEED for private construction. This presentation describes how LEED private construction mandates will result in a green building legal apocalypse.

1. Green Building Legal Apocalypse
Christopher W. Cheatham
LEED AP, Esq.
Kyle Wilson
Douglas Reiser
LEED AP, Esq.
Kyle Wilson

2. One Teaching Point:
Cities must stop mandating
LEED for private construction

3. Agenda
• What is LEED?
• Two LEED Legal Issues
• LEED Mandates
• Legal Issues + LEED Mandates =
Green Building Legal Apocalypse

4. What is LEED?

5. What is the US Green Building Council?
I’m not a
government
body!

6. What is LEED (and green building)?

8. More acronyms?
I’m not a
government body
either!

9. GBCI contracts to third parties
“GBCI is taking over those
reviews directly, both
through hiring to increase
its own capacity, and
through contracting with
LEED reviewers. . . .”
-Environmental Building
News,
July 6, 2010
3rd Party
LEED
reviewers

10. Construction
Completed

11. Can GBCI decisions be appealed?
• Appeal fees are $500 per credit.
• All appeals of final review decisions must be
filed within 25 business days of GBCI's posting
of the final review decision
• All appeals shall be conducted in accordance
with the GBCI Appeal Review Policy

12. Who is responsible for LEED certification?

13. If a city mandates LEED…
…a non-governmental entity
determines compliance with no
independent appeal

14. LEED Legal Issues on the Horizon
Challenges and Decertification

15. LEED Certification Challenges

16. 9.2 Certification Challenge Overview:
“GBCI may initiate a certification challenge thereby revisiting its determination that
the submitted documentation properly demonstrates that the project satisfied all
credits, prerequisites, and MPRs necessary to achieve the awarded level of LEED
certification.”
“Based on the final determination of such a challenge, GBCI retains the right to reduce
the level of LEED certification awarded or revoke an award of LEED certification
altogether.”
LEED Certification Challenges

17. 9.2 Certification Challenge Overview:
“A project owner may defend against such certification challenge by electing to
participate in the process described below.”
9.3 Basis for an Initiation of a Certification Challenge
“GBCI encourages third parties who wish to make a complaint, or bring to light
information affecting the grant of LEED certification . . . .”
LEED Certification Challenges

18. Who will challenge?
Angry mobs
Business
competitors

19. The First LEED Challenge
• Northland Pines
High School
• LEED Gold in 2007
• Challenge filed in
2008
• Alleged non-
compliance with
ASHRAE 90.1 and
62.1

20. The First LEED Challenge
In the process of its review, USGBC
engaged two extraordinarily
qualified engineering consultants
(Taylor Engineering and Horizon
Engineering) to review the technical
merits of the prerequisites and
credits in question.
Further, USGBC staff performed a
site visit of the school.
-Susan Dorn, USGBC General
Counsel
LEED
challenges
will be
expensive…

21. LEED Decertification
Decertification
police seizing a
LEED plaque

22. The problem:
many LEED buildings are not
performing as modeled

23. The Solution:
LEED Decertification
[USGBC CEO Rick] Fedrizzi predicts that data will
be used to enforce performance in the future.
"Once a LEED plaque is assigned to a building,
and there is proof that the building is no longer
performing the way that it should, there's a very
good chance that that information will then
result in the ability for USGBC to remove the
certification from the building — most likely on
our website," he says.
-NPR, Sept. 8, 2010

24. Challenges
+ Decertification
= LEEDigation

25. LEED Mandates

26. Various initiatives (mandates,
incentives, and other legislation):
43 states
384 cities/towns
58 counties
14 federal agencies
LEED Policy

27. D.C. Green Building Act
January 1, 2012
Private construction > 50K SF
LEED certified

28. What’s the enforcement mechanism?

29. D.C. Green Building Act
“(b) On or before January 1, 2012, all
applicants for construction governed by
section 4 shall provide a performance
bond”
“(g) All or part of the performance bond
shall be forfeited to the District and
deposited in the Green Building Fund if
the building fails to meet the
verification requirements described in
sections 3 and 4.”

30. D.C. Green Building Act

31. Baltimore City

32. Green Building
Legal Apocalypse

33. Greening the Codes, USGBC

34. LEED mandate
+ Enforcement Mechanism
= LEEDigation
Projects will fail…

35. Shaw Development v.
Southern Builders
Shaw retained
Southern Builders to
construct $7 million
condo project
Shaw sought LEED
Silver certification
Projects have failed…

36. Shaw Development v. Southern Builders
The Contract

37. Shaw Development v. Southern Builders
The Contract

38. Shaw Development v. Southern Builders
The Allegations: Breach of Contract

39. Shaw Development v. Southern Builders
The Allegations: Negligence

40. Shaw Development v. Southern Builders
The Damages

41. One Teaching Point:
Cities must stop mandating
LEED for private construction
1. Who is responsible?
2. LEED is not a building code
3. LEEDigation

42. Visit Our Blogs
Green Building Law Update
http://www.greenbuildinglawupdate.com
The Builders Counsel Blog
http://blog.reiserlegal.com/
Kyle Wilson

43. Contact Us
Christopher W. Cheatham
LEED AP, Esq.
chris@cheathamconsulting.com
Douglas Reiser
LEED AP, Esq.
doug@reiserlegal.com
Kyle Wilson