LEEDigation
by Jonathan McGaha | October 2, 2013 12:00 am
In 2002, I was first exposed to the USGBC’s LEED certification process. I had the opportunity to work on a project where the building owner made a decision to strive for LEED certification. Not only was this building to be certified, but the owner wanted the highest level of the four levels of certification. At the time, the LEED rating system and the certification process were new for most people. There was only one LEED rating system (LEED for new Construction and Major Renovation), less than 10,000 people had been credentialed as LEED Accredited professionals, and only a handful of projects had been certified. Out of those select few green buildings that had been certified, only three had achieved platinum level certification.
It was a time when the Architectural, Engineering and Construction (AEC) community was becoming aware of the importance of the green building industry. By 2005, McGraw-Hill Construction predicted that the green building market would quadruple in size between 2005 and 2008. That prediction became reality, but even during the recent economic downturn when construction starts dropped 26 percent between 2008 and 2010, green buildings were a growth market. It has been estimated the growth of green and LEED certified buildings has increased from $42 billion to an estimated
$71 billion industry.
Twenty years in the construction industry taught me that any sub-group or niche industry that shows growth as strong as the growth seen with certified buildings is bound to hit a few roadblocks along the way. One motivating reason for my interest in green buildings came from the passion I have toward construction. During my career, I had the opportunity to work on all different types of projects all over North America. I had seen firsthand how the contractor working on a project was selected by a low bid and seemed to be regarded as a necessary evil. I also observed that the contract documents used for green projects were vague and were not specific in regards to the LEED requirements. A growing industry, large sums of money being spent on modified construction, poorly written contract documents, and new technologies and products typically will lead to one thing-a lawsuit. Surprisingly, the growing concern of, what some would call LEEDigation, never really materialized.
There have been some cases that have transformed from just a threat to actual charges filed. Three specific cases come to mind. In 2006, a developer in Maryland filed suit due to the loss of tax credits that were tied to its building becoming LEED certified. In 2007, a suit was filed challenging the LEED Gold certification given to Northland Pines High School, Eagle River, Wis. In 2009, a group of “concerned citizens” used the USGBC’s own Minimum Program Requirements (MPR’s) to petition the LEED certification be taken away from the project for allegedly not fulfilling some of the prerequisites of the LEED rating system.
The third lawsuit was filed against the USGBC itself. In 2010, Henry Gifford filed a class action suit against the USGBC alleging that it fraudulently misled consumers and fraudulently misrepresented the energy performance of buildings certified under its LEED rating systems, and suggested that LEED is harming the environment by leading consumers away from using proven energy-saving strategies. There are thousands of buildings that are now LEED certified, tens of thousands more that are in process of becoming certified, and even more that follow some guidelines for sustainability or higher energy performance. Yet, there are only three projects that have made their way to the court system. What do these three projects have in common?
They were all related to LEED certified buildings or the LEED certification process. In all cases, the plaintiff sought damages arising from a building that did not perform as per the LEED certification would suggest. All of these cases were dismissed or settled before court proceedings were concluded. The Maryland case was dismissed citing a failure of both the owner and the contractor to recognize the risk implicated by the regulatory scheme that led to the claimed loss of tax credits. The team responsible for the school in Wisconsin proved to the USGBC that all of the prerequisites within the rating system used for certification had been fulfilled. The judge in Gifford’s case focused on the fact that his business and the services offered by the USGBC are completely different, and these differences are so vast that they do not compete for the same business. Therefore, there were no grounds to file the class action suit.
There could be several reasons why the tidal wave of lawsuits never transpired: Items of perceived concern vaporized; “new products and technologies” were not really that new; owners may have found themselves taking responsibility for a poorly written set of contract documents, or possibly those of us who thought there would be problems were just overly pessimistic. While the answer to why there have been so few lawsuits is unclear, we know that there have been very few. This is a good thing, but can it last? The answer to that question depends on whether the AEC industry continues to keep pace with the changing needs of the green or high-performance market, and if owners continue to take responsibility for the sustainable goals they set for their projects. Perhaps, the biggest factor will be the industry and whether it will ever truly define what makes a building green, and who will be the definitive source for deciding if and how green a building might be.
Thomas Taylor, a 30-year veteran of the construction industry and noted expert on sustainability, is the general manager of St. Louisbased Vertegy. His recent book, “Guide to LEED 2009: Estimating and Preconstruction Strategies,” provides step-by-step information about the LEED 2009 for New Construction process. To learn more about Vertegy or Thomas’ new book, visit www. vertegyconsultants.com for more information.
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