LEED Requirements Michael Vieira | 12 Jul 2009 07:59 am
USGBC’s New Requirements Add to Potential Liability…De-certification
Last week I wrote about the United States Green Building Council’s (USGBC) new performance requirement mandating the ongoing monitoring of energy and water usage for all LEED projects.
So what are the ramifications if a project fails to report the newly-required monitoring data? The USGBC offers the following warning:
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.
In other words, we have a new word to add to our LEED vocabulary…“DE-CERTIFICATION.” The USGBC’s warning has sent the green building legal community abuzz.
At this point, a project can be de-certified if it fails to provide ongoing monitoring data. The USGBC has not yet stated what will happen if a building’s energy and/or water usage is higher than projected.
The USGBC’s ability to de-certify a project means that all stakeholders, including developers, designers, contractors and tenants could face numerous legal issues associated with their role in the green building. A recent article from the Engineering-News Record entitled “Building Rating System Requirement Raises Concerns” addresses several of the potential legal hurdles. For instance, the article proposes that a proposes that a developer’s ongoing ability to receive tax incentives could be impaired if the project’s certification was a requirement of receiving the benefit.
As stated in the article:
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….
What was once an initial project-performance milestone now has ongoing tail responsibilities that could create extended obligations for the owner itself and possibly, in turn, design and construction teams.
De-certification presents yet another layer of risk and potential liability that should be addressed early in each stakeholder’s contract.
on 14 Jul 2009 at 8:17 am 1.Mark Wills said …
Appreciated your comments re: subjectivity of LEED and the need for incorporation of standards into building codes (http://tr.im/sjOx).
on 14 Jul 2009 at 8:19 am 2.Mark Wills said …
Apologies. I mixed your comment up w/ another person I wished to contact. The risk inherent in abiding by rating systems rather than an enforceable building code speaks very clearly to the need for such a code, don’t you think?