One of the first LEED certified buildings I ever toured was a large corporate office headquarters building in Wisconsin. My tour guides, the building’s architect and corporation executive, proudly announced that the building had achieved LEED Gold. I was thrilled to have the opportunity to see an actual Gold certified building up close and personal, after having spent several months studying the LEED rating system. I listened in rapt attention as we moved through the building; the low-VOC paint pointed out here, the recycled content flooring there, the sophisticated HVAC system overhead.

When we reached the restrooms, I was eager to see the ultra low flow fixtures and high-tech sensor faucets that I assumed would be installed. I was perplexed to see that the faucets were the same as one would find in an average, non-green corporate office washroom. There were no motion sensors, no flow reducing aerators. Well, I thought, certainly the urinals and water closets are ultra low flow, then. But this was not the case. All of the fixtures in the restroom were standard fare; urinals at the 1992 EPA required 1.0 gallons per flush (gpf), water closets 1.6 gpf.

I assumed that something had happened at some point during design and that pursuit of the LEED points for water conserving plumbing fixtures was abandoned. When I asked, both tour guides stated that both points were indeed awarded, the corporate executive running a finger under the water conservation points in the educational brochure that had been specifically prepared for tours of the building.

How could this be, I asked, when clearly nothing was done with the fixtures to earn these points? The architect and corporate executive looked confused and clearly were caught off guard. Were there other fixtures somewhere else in the building that provided the claimed water savings, I asked? The answer was no. The tour guide’s inability to explain the discrepancy led to only one possible conclusion: LEED points had been awarded for something that wasn’t actually implemented, rendering its Gold certified status very suspect, in my mind.

So what happens when a building sporting a green building certification doesn’t actually meet the criteria it was certified for? The answer is nothing. The USGBC green building certification review process does not require any site visit for validation of claims. If it does learn of scorecard deficiencies, I know of no remediation requirement imposed by the USGBC. No fines, no removal of the plaque on the wall, no posted notice on the green building wall of shame, no consequences whatsoever.

MINIMUM PROGRAM REQUIREMENTS

With the latest LEED Version 3.0, the USGBC introduced something called Minimum Program Requirements, which must be met in order to earn and retain LEED certification. There are seven MPRs that buildings must meet, depending on the rating system being used:

Must comply with environmental laws

Must be a complete, permanent building or space

Must use a reasonable site boundary

Must comply with minimum floor area requirements

Must comply with minimum occupancy rates

Must commit to sharing whole-building energy and water usage data

Must comply with a minimum building area to site area ratio

The USGBC goes on to state on its Web site that:

“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.”

This new requirement solves the problem in the example I give about the restroom fixtures, and also paves the way for a building’s potential decertification. A future MPR addressing unearned LEED rating system prerequisites and points would not be a great surprise.

GETTING TOUGHER ALL THE TIME

The only MPR on the list that is likely to be problematic is number 6. The others are straightforward and already put into practice by the large majority of every occupied building in America. Number 6, though, is a biggie and goes to the very heart of the chief criticism of LEED: certified buildings are not performing as claimed. MPR 6 further exacerbates the newish LEED requirement that all certified buildings achieve a minimum 20 percent reduction in energy use over an ASHRAE 90.1 baseline. The 20 percent energy use reduction requirement alone was enough to prevent some projects from registering for a LEED certification. The additional requirement of MPR 6 (and MPR 7 for water conservation) to now prove this predicted savings may serve to dissuade many more projects from pursuing LEED certification.

The MPR language doesn’t state that a certification will be revoked, but that it may be revoked. While possible that the USGBC never acts on the threat, having thrown down the gauntlet, it will be incumbent upon the organization to do so or risk losing lots of credibility. Ultimately, no one is afraid of a toothless dog with a big bark.

The problem with MPR 6 is not that it will be impossible for building owners to provide the information, but the potential liability brought about should the actual, documented performance fall short of modeled predictions. Owners will want to know if the building was designed properly. Tenants will be asking owners why their energy and water bills are higher than they are supposed to be. The public will want to know how and why their tax dollars were spent on LEED-legislated buildings that are not performing as required. Decertification, as scary as that sounds, may be the least of people’s concerns as certified building performance data is collected and made available.

MANAGING GREEN BUILDING DESIGN RISK

Risk management for design professionals is a necessary component of a successful practice. Most design professionals have professional liability insurance, a requirement for all but the smallest projects. A major design profession insurer, Victor O Shinnerer, has a lot to say about risk associated with green building design. It has a lot to say because, according to an abajournal.com article Green Grow the Lawsuits, “As many as 10 percent of the 4,000 claims a year Schinnerer handles involve some allegation of green promises gone wrong.”

In Shinnerer’s November 2009 publication Guidelines for Improving Practice, an article titled “Mutual Understanding on Designing for Sustainability” asserts that firms will face an increase in claims related to sustainable design. And this was written before the existence of MPR 6 and 7, which will certainly provide more fodder for an increase in claims. The article provides examples of owner-architect contract language for use when the owner wants the design to meet specific sustainability criteria and third party certification of sustainability. The examples include language crafted to protect design professionals against later claims in the event that the building does not perform as intended. (The article is available in its entirety at www.shinnerer.com.)

CONCLUSION

The discrepancy between predicted and actual green building performance can be significant. The tools used to predict a building’s energy performance should be evaluated and modified as necessary to close the gap. I have always argued against mixing design and construction green building rating requirements with green building operation requirements. Designers have no control over how many teapots and personal heaters building occupants plug into the walls. Designers cannot force building owners to regularly commission energy consuming building systems. Designers cannot force owners to implement a building maintenance program. Tying the building rating to building operation is a mistake, and I think MPR 6 and 7 effectively do just that, even if unintentionally. The appropriate place for MPR 6 and 7 is LEED for Existing Buildings, which addresses green building operations, the onus of which is placed on the occupants and the owner, where it should be.

Instead of threatening to decertify a building that doesn’t perform as claimed, the USGBC should consider requiring all certified buildings to recertify using LEED EB. A building that doesn’t meet its performance goals over a reasonable amount of time could be grounds to deny a building’s recertification. Decoupling the design and construction of the building from its operation removes the associated risk to designers and owners. A “downcertification” penalty (from Gold to Silver, for example) of a building could also be established, but should be limited to items directly in control of the designer, builder, and owner during design and construction, and not for anything operations-related.

The effort by the USGBC to better address a building’s performance during occupancy is laudable but I think more thought needs to go into the new requirements as currently written. The new MPRs may actually curtail rating system participation, which will result in a more protracted market transformation. W&C