Green Building Law Update Service

Center for Climate Change Law

Controversy Concerning Revoking LEED Certifications

Posted on August 20th, 2010 by J. Cullen Howe

The Green Building Certification Institute (GBCI), which is the organization responsible for administering the LEED green building rating system, has put out a LEED Policy Manual.   The Manual contains the following excerpt concerning revoking LEED certifications, which appears on p. 27:

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 credits/prerequisites/minimum program requirements for LEED certification were granted based on erroneous determinations or inaccurately or falsely submitted documentation.  Persons concerned with possible inaccurately granted LEED certification are encouraged to contact the GBCI, provided, however that GBCI reserves the right to institute an investigation and review of such possible errors or inaccuracy or veracity of documentation without third party complaint.

If GBCI determines that the complaint is frivolous or not relevant to credits required for LEED certification, no further action will be taken. Should GBCI determine that the allegation appears credible and the allegation is founded on the error or inaccuracy of GBCI or veracity of the documentation submitted in support of the credits/prerequisites/minimum program requirements in question, GBCI shall proceed with its investigation, requesting information from the Project Manager and/or the Owner or others involved in the project.

In May 2007, a high school in Wisconsin was awarded a Gold certification under LEED for New Construction & Major Renovations (LEED-NC) Version 2.1.  In December 2008, members of the Northland Pines High School Building Committee and concerned taxpayers, along with two engineers, filed an appeal of the certification to the USGBC.  The appellants contended that the design and construction of the school did not meet Energy & Atmosphere (EA) Prerequisite 1, Fundamental Building Systems Commissioning; EA Prerequisite 2, Minimum Energy Performance; and Indoor Environmental Quality Prerequisite 1, Minimum IAQ Performance.  More specifically, they claimed that certain mandatory standards—namely ASHRAE Standard 62.1-1999, Ventilation for Acceptable Indoor Air Quality and ASHRAE Standard 90.1-1999, Energy Standard for Buildings Except Low-Rise Residential Buildings—were not complied with and that there were numerous violations of the Wisconsin Administrative Code.  The appellants claimed that the violations could not have been corrected without a complete redesign of the HVAC system, which was not done.

In April 2010, USGBC upheld the LEED-Gold certification, stating in a letter that “[a]fter extensive review, USGBC and its consultants have no reason to believe that the project failed to meet all of the LEED prerequisites and credits it has attempted.  Thus, USGBC will not act to revoke certification or disallow any prerequisites or credits.”

On June 5, 2010, the appellants issued a reply entitled “LEED Credibility  Destroyed,” which stated in part, “it is clear that the building as originally designed and the completed building did not and does not comply with the ASHRAE prerequisites at the time LEED® Certification was granted.”  The letter goes on to state the following:

This experience makes it very clear that USGBC and/or GBCI scrutiny of LEED® applications is severely lacking. While some instances of non-compliance with LEED® requirements may be minor or innocent, it is abundantly obvious that the granting of LEED® Certification at NPHS left a lot to be desired.  The violations of the LEED® prerequisites in this building are numerous and are neither minor nor innocent. Unfortunately, most designers and owners are not inclined to dispute or question LEED® Certification after it is granted, especially if it might reflect unfavorably on them.

*                              *                               *

The USGBC decision to reject this appeal is going to matter.  Like it or not, USGBC set a dangerous precedent by turning a blind eye to a deliberately deficient submission.  They sent a message to applicants that it is OK to make unsupported claims in their Certification submissions, and that USGBC will not act against them even when deficiencies are disclosed.  How many other projects like this are out there?  That should be a matter of grave concern to potential applicants considering the time and expense of getting their facilities LEED® Certified.

From this point forward, how can any client or unit of government have faith and confidence in an organization that deliberately and intentionally does not follow the rules they develop and adopt, especially when challenged?  It was the failure of the vaunted USGBC review process that allowed Northland Pines High School to become LEED® Certified in the first place.  If USGBC is unwilling to enforce their own requirements and knowingly permit LEED® Certification to be retained on projects where there is clear evidence that the Certification was based on defective and inadequate applicant certification applications, what confidence should or could anyone have in the veracity of either their
rating systems or their Certifications?

Soon thereafter, Susan Dorn, USGBC General Counsel, issued a statement regarding its decision:

USGBC stands by its conclusion that the Northland Pines High School project and project team complied with all the requirements necessary to achieve LEED Gold certification.  In response to a complaint, USGBC followed its certification challenge policy, which requires a thorough and technically rigorous review of the project.  Given the vociferous and confrontational nature of the complaint, we further asked for two additional and separate technical reports detailing the expert professional opinions of highly regarded independent consultants.  Their findings agreed with ours.

Anyone who has actually been through a LEED certification review knows that it is a  dialogue between the project team and the reviewer.  After reviewing the documentation submitted by a project team, the reviewer issues a request for more information in a “Preliminary Review”.  The project team responds to any reviewer comments and resubmits.   The reviewer then reassesses the project and issues a ‘Final Review’.

The process USGBC used to deal with this appeal was similar to our standard process but in addition to having the original submission and reviewing everything we normally review we also had the complaint document.  There were issues in the complaint document that were not (from our independent consultant’s point of view) adequately addressed by the 2007  submission so we asked for and received additional clarifying documentation from the project team.  This additional documentation answered all open questions and made it possible for USGBC and the independent consultants hired to provide their expert technical opinions to conclude that the project does in fact comply with LEED Gold requirements.

LEED’s intent, and USGBC’s mission, is about helping people learn about and understand how to design, build and operate better buildings.  Buildings are complex systems of systems and any of the 100,000 of decisions associated with design, construction and operation can always be second-guessed. We are confident that our due diligence has been more than sufficient to put these issues to rest, and we are moving forward to focus our efforts where they do the most good — advancing the market uptake of green buildings and communities that is at the heart of our work.”

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