The Anaotomy of a LEED Certification Challenge

The legal blogs have been buzzing this month with news and newly acquired documents regarding the challenge of the LEED Gold Certification of Northland Pines High School in Eagle River, Wisconsin. For those of you who are unfamiliar with this case, below is my timeline of the events and my two-minute synopsis:

  • May 2007: Northland Pines High School is awarded LEED Gold Certification (using LEED NC v2.1)- click here for the press release
  • December 2008: A group of 5 community members of Eagle River including a design professional, a construction professional and a real estate developer file a formal appeal of the school’s LEED Gold Certification with USGBC- click here to read the full appeal document. The primary complaints are that the project fails to meet the applicable ASHRAE 90.1 and 62.1 Standards required by Energy and Atmosphere prerequisite 2 and Indoor Environmental Quality prerequisite 1 respectively and should therefore not have been eligible for certification. Some issues with the project’s commissioning process were also noted.
  • January-December 2009: Presumably, throughout 2009, USGBC was investigating the allegations set forth in the appeal. This investigation included the hiring of two consultants, Horizon Engineering and Taylor Engineering, to review the building’s construction documents and LEED submission documentation. A site visit also occurred in December of 2009.
  • January 2010: Horizon Engineering issues a report outlining their review and conclusions- click here to read the report. The Horizon report finds very few issues with the original LEED documentation for the project, although, it does concede that it cannot be established when commissioning specifications were issued for bid on the project. The group that filed the appeal has issued a response to this report that can be found here.
  • April 2010: Taylor Engineering issues there report- click here to read the report. The Taylor report clearly acknowledges that the original design and construction of the school did not meet the requirements of ASHRAE Standards 62.1 and 90.1, but it indicates that due to subsequent modifications, the building now is in “sufficient compliance” with the standards. The appellant group has issued a response to this report as well here.
  • April 2010: USGBC issues a letter (click here to read it) denying the appeal of the school’s certification. This letter indicates that USGBC found nothing that would lead them to believe the project did not achieve any of the prerequisites or credit that it pursued.
  • June 2010: The appellants issue a letter in response to the USGBC denial of their appeal entitled “USGBC and LEED Credibility Destroyed” (click here to view it). The letter expresses the group’s frustrations that despite there being issues identified during the project’s review process, the school was able to retain its certification as well as with USGBCs failure to disclose to them the project’s original LEED documentation as well as other documents that the group requested. This struggle to obtain access to these documents is chronicled in a compilation of emails exchanged between the group and USGBC was is available here.

Now that you have access to all of the publicly available documents surrounding this case, I’ll leave it up to you to form your own opinions of whether or not USGBC made the correct call. I do, however, have a couple thoughts. There has been a lot of commentary surrounding this instance about the need to discourage anyone and everyone from questioning a building’s LEED certification, and it has been mentioned by several bloggers that this ruling by the USGBC may be meant to deter the possibility of overwhelming certification appeals. I certainly hope that is not the case. While I absolutely agree that we need to protect the system from the potential costs, time and frustration of frivolous appeals, but it is clear upon review of the documents that this appeal was brought forth by a group of professionals who had insight into and great interest in the school as community members and was hopefully taken extremely seriously. It appears as if it was, although the seeming conflicts between the consultants’ reports identifying issues and the USGBC decision to deny the appeal rightly raise questions.

The USGBC is in a very tough spot here- I’m no lawyer, but it seems to me that they would open themselves up to some pretty severe legal consequences being waged by the design and construction teams as well as the school district if they reverse a certification that was previously awarded without significant evidence of not only noncompliance but also deception in the original documentation. Add to that the added scrutiny a reversed certification would bring to the LEED certification review process and siding with the appellants seems pretty hazardous. This must, of course,  be weighed against protecting the integrity of the system and process. I wouldn’t want to be the one to make that call. That doesn’t, however, prevent me from empathizing with both the school and the appellate group.

I don’t think this case is over by a long shot, although there doesn’t appear to be any process in place for appealing an appeal decision. This may be a war that rages on in the media, if not through an official process. And remember- this is just the first of these types of cases!

This case has been extensively covered by bloggers: Below are some additional blogs to check out for more information.

Breaking: USGBC Stands By Its LEED Challenge Decision on Green Building Law Update

Needling Naysayers or Constructive Critics– The Tough Case of Northland Pines on Green Building Law

LEED Certification Challengers Speak Out on Green Building Law Update

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2 thoughts on “The Anaotomy of a LEED Certification Challenge

  1. Great post. You are right, the challenge is a tough spot for the USGBC.

    My concern is that the LEED rating system has been codified in hundreds of jurisdictions and by the federal government. Either you comply with a regulation or you do not. Non-compliance requires enforcement. The USGBC is eventually going to have to enforce its rating system or the green building codes and regulations will have to be revised.

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    1. Thanks Chris- I have the same concern. Part of me is happy that many local jurisdictions and even segments of state and federal government have latched onto LEED, because it certainly does aid widespread acceptance and implementation of sustainable design principles, but LEED was never meant as a model code and USGBC, as a non-profit organization, does not hold the enforcement powers of a building department (not to say that I think they have handled this issue correctly…). Hopefully with the development of model green construction codes, LEED can go back to what it was meant to be- a simple third party certification.

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