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In late December, most of us are busy planning for the upcoming holidays, thinking about eating lots of fattening foods, and looking forward to merry-making with family and friends. On December 23, 2008, however, one person was not enjoying such pleasant thoughts. Instead, Larry Spielvogel, PE, was finishing up a letter of appeal to USGBC President Rick Fedrizzi contesting a LEED Gold Certification that had been recently awarded to the Northland Pines High School in Eagle River, Wis. The letter of appeal is an exhaustive, 125-page tome documenting many violations of the LEED rating system during design and construction of the $28.5 million high school. Spielvogel and another engineer, both members of the Northland Pines High School Building Committee, wrote the letter on behalf of the entire Building Committee as well as the taxpayers of Vilas County Wisconsin.

On April 27, after reviewing the appellant’s documents and investigating the allegations made, the USGBC denied the appeal with the following statement:

“After extensive review, USGBC and its consultants have no reason to believe that the project failed to meet all of the LEED prerequisites and credits that it has attempted. Thus, USGBC will not act to revoke certification or disallow any prerequisites or credits. Northland Pines High School will retain the 40 points awarded to the project in its original review. The project remains certified at the Gold level.”

And with that, all parties should be satisfied; satisfied that the appeal process was implemented fairly, that it worked, and that the building is worthy of its LEED Gold status. If only that were the case!

The Greening of Northland Pines High School

In 2004, voters approved $28.5 million in bonds to finance the design and construction of the Northland Pines High School. Spielvogel served on the Building Committee for the new school along with other professionals with specific talents and experience in design and construction of large buildings. Each was dedicated to the proposition of creating the most efficient structure possible.

As the design developed, building committee members began to question whether the facility would meet the necessary requirements for LEED certification when shortcomings in the design became apparent. The board hired two consulting engineers to review the design, and both concluded that the facility as designed would not meet some of the prerequisites for LEED certification. According to Spielvogel, this information was ignored by the design team and work on the high school proceeded without changes necessary to ensure LEED certification would be obtained.

But LEED certification was obtained, and not the LEED Silver rating originally targeted, but LEED Gold. In disbelief of this, the appeal was filed challenging the award of the LEED Certification. It took the USGBC 16 months to conclude that the appellant’s allegations were unfounded, and that the building would retain its LEED Gold certification.

According to Spielvogel: “They based this on reports from two more consulting engineers who said that the building did not meet the prerequisites but concluded that ‘pretty close’ is close enough. When the appellants’ engineers asked for the back up data to the USGBC reports, they were told that they were pretty busy and would address that request when they had time. Time has passed and the requested materials have not been forthcoming. Why?"

“On behalf of the taxpayers of Vilas County who would like to know with certainty whether they got what they paid for or not, we ask the engineering community to look at this file and tell us, did we miss something here? How can it be all right to certify a building that doesn’t fully comply with the rules set forth by the body that is doing the certifications?”

LEED Certification Appeal: A Deeply Flawed Process

The Northland Pines appeal includes, in one of the appendices, a document titled U.S. Green Building Council Process for Appeal of LEED Certification, which outlines the appeal process in flowchart fashion. If a Technical Review is warranted, based on conclusions of an initial USGBC review, independent consultants are to be engaged by the USGBC to assist in further review. The document states that “consultants will have no conflict of interest with either LEED project team or appellant.” What about conflict of interest with the USGBC? That is seemingly addressed in a separate USGBC document titled “GBCI LEED Certification Policy Manual” under Certification Challenge Policy, which was created after the initiation of this appeal. The policy states:

No staff or technical consultant may: (a) review any matter in which his or her impartiality might reasonably be questioned, or (b) review any matter which presents an actual, apparent or potential conflict of interest.

It’s a good thing that this policy did not exist at the time of this appeal, because the USGBC would not have met the requirement in hiring two engineers to assist with the Technical Review of the Northland Pines appeal. One of the engineers sits on at least one USGBC Technical Advisory Committee and also teaches classes for the USGBC. His Web site lists the USGBC as a client under Teaching Services. The other engineer, according to his company’s Web site, has been a “featured lecturer and presenter at USGBC Salons” as well as having spearheaded commissioning guidelines for LEED-NC Version 2.2, and served on the New York City Chapter Board of Directors of the U.S. Green Building Council.

It comes as no great shock that the reviewers hired by the USGBC are generally dismissive of the allegations made in the appeal, given the clear conflict of interest that exists. What is shocking is how clearly they conclude that the building does not, in fact, meet the prerequisite requirements for LEED certification. Even more shocking is that the USGBC completely ignores this in its declaration that it has “no reason to believe that the project failed to meet all of the LEED prerequisites and credits …”

Here is a sampling of the consultant’s conclusions that support the appellant’s claims:

There were several violations of Standard 62.1 and Standard 90.1 requirements in the design as originally documented. As such, the original design did not meet Indoor Environmental Quality (EQ) Prerequisite 1 and Energy and Atmosphere (EA) Prerequisite 2 of LEED NC version 2.1.

There appears to be a violation of the reheat limitation: heating airflow set points on VAV box schedules on H1.2 are significantly above the limitations prescribed by Section 6.3.2.1 exception (a).

The calculation methodology [under 4.1 Ventilation Rate Procedure] did not strictly meet Standard 62.1.

Complainants point out, correctly, that none of the VAV air handling units includes airflow measuring devices on the outdoor air intakes. CO_² sensors are provided in the return air of most units, with controls to increase outdoor air minimum damper position when CO_² rises above 800 ppm. This helps compensate for the lack of airflow measurement and control, but it does not meet the Standard since there is no way that it can maintain the “building component” of the ventilation rate.

It is not readily apparent if the systems as designed meet this section [5.10 Dehumidification Systems]. The VAV systems should meet it inherently since supply air temperatures are generally always low enough to dehumidify in cold weather. However, the constant volume units may not in some weather. This is a possible technical violation.

It is not clear that commissioning requirements were included in documentation [as required for LEED 2.1 NC EA Prerequisite 1].

The USGBC failed to follow its Process for Appeal upon the finding by its consultants that violations existed. The next step outlined in the Process for Appeal, after it is determined that a prerequisite is not met, requires removal of the LEED certification plaque, or De-Certification.

Conclusion

The Northland Pines appeal, and subsequent denial of the appeal by the USGBC, has not resulted in a lawsuit—yet. But it is probably just a matter of time before an appeal is made on another LEED certification and litigation (or “LEEDigation” as it has been termed in one popular green building law blog) ensues. Spielvogel and the rest of the appellants declined to pursue legal action against the USGBC, but instead wrote a paper titled USGBC and LEED Credibility Destroyed which summarizes their entire ordeal. The paper concludes that:

“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.”

Green building and construction law attorneys have been following the saga of the Northland Pines appeal with great interest. Their blogspots are rife with commentary, advice and speculation. For an excellent summary of all of this Internet activity and some very provocative discussion points, I recommend a recent post titled Challenges to LEED Certifications: Standing, Procedure, Wiggle Room and Money at Virginia Real Estate, Land Use & Construction Law Blog (ht.ly/22J2r).